A Triumph for Private Property Rights in Montana and Barely a Whisper Heard

by jhwygirl

Odd, no?

Great Falls Tribune reported yesterday on a ruling by District Judge Laurie McKinnon which found that private corporations do not have the power of eminent domain.

You’d think freedom-loving pro-property right’s Montanans would be out banging pots and clanging lids but instead? Thud.

You’d think the Chamber of Commerce and every other Ayn Rand freak would be out decrying the ruling, but instead? Crickets.

The Montana-Alberta Tie Line – this thing is probably in its 6th year of running at high gear – was told that they didn’t have the right to condemn Shirley Salois’ property:

In July, a Montana subsidiary of Tonbridge Power Inc. of Toronto filed a complaint to condemn their land in Glacier County District Court after Salois argued the proposed route should be adjusted across his property farther from tepee rings and a wetland.

Lund argued Tonbridge could not exercise the right of eminent domain because it is not an agent of the state that has been given express legislative authority to acquire private property.

So this is a pretty big deal. What’s Tonbridge to do? Do they appeal? Do they open the book for a state-wide ruling that’ll become precedent for every other jurisdiction in the state? Or do they move these lines?

This ruling can have major impact Northwestern Energy’s Mountain State Intertie (MSTI) too. A 500kv line being built across Montana and Idaho in an effort to move electricity to California and Colorado, it has run into plenty of trouble. Proponents tout that it is for wind energy, but the reality is that virtually all of it is to move coal-produced electricity. There has been considerable public outcry against this project too – with Jefferson County officials going so far as suing DEQ, successfully, to halt the process.

MSTI will be – or perhaps they won’t be – relying on condemnation powers to construct this line. So ouch on those plans.

Who else? Well, that Otter Creek coal was relying on a railroad through, in part, some candy-heir ranch owner’s land out east. You can bet they were going to try and pull our Montana’s eminent domain laws there too.

A while back I called the PSC – I think I might have mentioned this in some comments at Left in the West – to ask some questions about both of these lines. Mainly, what I wanted to understand was why could they condemn private property when the lines weren’t for public use – they weren’t regulated by the PSC, and they weren’t available to any public project that might want to access it.

In other words – not only were they going to condemn property, they were causing an increase cost for infrastructure for power because of the monopoly-like nature of their use. Brad Molner explained to me that the lines weren’t common carriers and they fell under some federal interstate clause that didn’t allow them to be regulated by the PSC. I lamented to him the inability of the state to regulate them because of our lack of infrastructure which was inhibiting wind energy development.

It’s an interesting mix of situations here – does Tonbridge appeal? Can they apply for common-carrier status? Does this become some sort of federal-state showdown? Might this be a turning point for energy development in Montana?

I’ll be watching this case closely, as I’ve often pondered how Montana’s eminent domain laws can be used by private entities when – despite they provide services to anyone who purchases them – are private for-profit not government entities. Remember the outcry about the Kelo v. City of New London Supreme Court ruling?

I mean – look at the list of things that private entities could – and have – condemn private property for – it’s crazy, really, and all listed under Public Uses enumerated.

Parking lots….urban renewal projects…roads..for the benefit of..the inhabitants of a county, city or town…

Interesting stuff, no?

It’ll be interesting to see how the new legislature being sworn in January 3rd is going to want to – perhaps – fix what I’m sure a whole bunch of them are going to try and twist as some egregious miscarriage of justice to the public good.

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  1. jim

    I’m interested in Brad’s response to your comment on wind since he and the newly elected kid, Kavulla, both hate wind and are working to eliminate it from the NWE portfolio requirement. Energy has to be drilled for or mined. The manly energy. No prairie fairy wind farms for them. By the way, when does Brad go to jail for stealing state resources to run his re-election campaign?

    • He really didn’t respond in any way to my lament about wind development. His whole response was centered around their inability to regulate it because of federal regulations.

  2. jim

    just read the GFT article. jeez, a judge who doesn’t legislate from the bench the repubs should rejoice. Of course they’re all knickerknotted cause they only want their private property rights protected not ranchers who have been on the land for a century. Ranchers and working folks are supposed to assume the dying cockroach position when foreign corporations come calling. You can bet that some anti-property rights legislators are already drafting a bill to force Montanans to grab their ankles when moneyed corporations want to plant a power pole. Chump Edwards (HD100) thinks gravel pit miners should have condemnation rights. What do his constituents think? He doesn’t give shit, he doesn’t live in thier district.

  3. lizard19

    great post, j-girl.

  4. Harry P

    The blogger here couldn’t be more wrong about conservative versus liberal positions regarding corporations and property rights. It was the liberals on the Supreme Court who stood with the Connecticut municipality in the Kelo case. The town wanted to run people out of their homes so that business interests could develop the neighborhood, so that tax revenues could be raised. The Liberals on the court wanted this and let it go through, while the conservatives, who stand for individual liberty, strongly opposed it. Liberals are for control, oppression of free people, turning governments into monsters that have resulted in the killing of tens of millions by leftist regimes, restriction of free speech as with Castro, Chavez, Mao, Lenin. This is the tradition they follow. And keep in mind that National Socialism was, well, Socialism. Conservatives, though, are for liberty, free people being left alone to live their lives, as with Jefferson, Madison, Adams. Liberals never get this. They have personal problems. They’re not even liberals, because they are for state control of free people.

    • Harry, I’d guess you never read the Kelo decision because you obviously don’t know jack about it, or the SCOTUS for that matter. The liberals you so fear haven’t had a majority on the Supreme Court since St. Reagan. The majority of the court ruled for the Town of New London because it is the law, as specified in the 5th Amendment. They weren’t ruling on whether or not you’d like it. But the facts are clear. “Taking” is in the Constitution, and eminent domain is a legal component of that. This wasn’t about “socialism”. It was about what is legal. So, those ‘liberals’ on the SCOTUS you deride are the ones who defended the rule of law. Your conservative heroes are little more than activist judges, as proven by Gore v. Bush and Citizens United v. The Federal Election Commission.

    • lizard19

      Conservatives, though, are for liberty, free people being left alone to live their lives, as with Jefferson, Madison, Adams.

      so, Harry, do you support allowing women the liberty to make their own reproductive decisions? do you support decriminalizing marijuana, so adults can have the liberty to imbibe what they want as long as they aren’t hurting anyone else? how much liberty are you willing to allow citizens?

      conservative and liberal thinking have both gotten really screwed up these days. you are holding on to dying concepts, Harry. get over it.

      • mr benson

        Yes, lizard, I do think that a woman has a property right in her own body, and that she, and not the state nor the fetus, can lay claim to the labor of her body.

        Tell me, do you believe taxation is violence, and that people have a property right in the fruits of their labor that should never be infringed merely to transfer that property to another person?

        Marijuana’s a pretty lame issue, but sure, I support legalization. I also oppose the modern day carrie nations all atwitter over people driving while talking on a phone.

        Would you like to play some more?

        • Lizard

          i believe what is done with my taxes is often violent, and if taxpayers had a choice of where there money went we could actually see what the public really wants from their collective national reinvestment, but i don’t believe taxation is violence per se.

          i despise paying taxes because i know it’s being sucked into the blackhole wall street and our wars have created, so honesly i think a national tax boycott is something that would send a strong message that the real power of the purse rests in the money that is extracted from us, the public.

          anyway, thanks for the response. it’s assuring to know there are still folks in your camp capable of standing against the social conservatives who keep trying to control conservative priorities.

    • The Polish Wolf

      National Socialism was NOT socialism any more than a people’s republic has ever been a republic. National Socialism was a rapid reaction to ‘bolshevism’. Just as it was qualitatively different than American conservatism, even the most TEA infused kind, it was also a completely different thing than socialism. National Socialism placed the good of the state over the good of the people, and in the end the good of the race over the good of the state. True socialism believe the state to be a temporary apparatus for serving the people’s immediate needs, and even welfare state style socialism believes in the existence of the state for the people and denies the validity of race.

      ‘Conservatives’ are for people being free to live their lives apart from the government, that much is true. But it is the liberals in the vein of Mill or Hobhouse who recognize that oppression comes in other forms, as well. And so if you believe that you can only be oppressed by the government, conservatism is the way to go, but if you know pay attention to history you’ll note that sometimes a democratic government needs to protect us from the oppressive power that also can be wielded by corporations, religious bodies, etc.

    • jim

      Name me a single conservative who practices what you claim are these conservative views. Conservatives want to control nearly all aspects of a persons life.
      They think they should decide which type of medical care a person recieves. They want to legislate who one can marry, and they don’t believe the wealthy should pay their fair share for the benefits they reap from society.
      They’re soft on national security. They think its
      ok for a gay individual to have the highest top secret security clearance as long as they “don’t tell” leaving folks subject to black mail and extortion. Again name one living conservative who has the guts to openly practice conservatism.

  5. Good post. According to a GFT article today, Tonbridge may try to get something put through the legislature to help their cause. http://is.gd/iV6yh

    • I just read your post on this subject.

      Good stuff too.

      We simply can’t have 50,000 different transmission lines crossing montana. We’re the breadbowl of wind – we can power American or wherever, but we need to be wise and consolidate those lines. We also shouldn’t create an atmosphere where – as your article points out – investment is so costly.

      Their arrogance in that article is unbelievable. March?

      I’ll be watching any legislative hearing discussing anything designed to allow condemnation for purely private entities without public regulation. Lapdogs will be outted.

  6. mr benson

    Kelo is egregious. I can’t agree that ” increasing tax base” is reason for eminent domain.

    On the other hand, utility lines, roads, trains, airports, they seem more legitimate uses of eminent domain. Did Montana Power never use eminent domain? The Great Northern or Northern Pacific or Bonneville Power et al?

    I did hear on the local radio station, from Tammy Hall, that this was a “victory for private property rights” and “against a corporation that wasn’t even american” (are any of the big ones, really?) The right has spoken. And they and you are actually on the same side on this one.

    • Great Northern and Northern Pacific were authorized by congress. They were also given every other section of land to build those railroads. Later they became timber companies, and still later they became real estate investment trusts (meaning they get a sweet tax deal).

      Bonneville Power? That’s a federally owned and operated facility that sells power to private and co-operatives down the line.

      Montana Power was founded by the Copper King himself, William Clark. The William Clark who bought himself a senate seat if I recall – except that they wouldn’t seat him. Clark damned many rivers around this state – two of which have been removed – and another that the state is looking to collect about 50 million in back rent. Avista, who now owns another one of Clark’s old dams, have already paid up.

      Public utilities are public utilities. These MSTI and MATI projects aren’t public. If you want to go and build a dozen wind towers and tie into this line and they don’t want to deal? They don’t want to deal like the landowner they’re currently dealing with doesn’t want to deal? There is nothing in law that can make they allow you to tie into these lines.

      If the state is going to condemn private property, there darn well better be a better public purpose served other than the ghost “jobs” and profit of stockholders and overpaid executives.

      They want to go for common carrier status? Allow the PSC to regulate that line? That’s different – but as it goes now, they look like damned fools.

      And extremely arrogant. Read the article James links to above…citing “March” as when they’ll get things cleared up. Wow.

      • mr benson

        Not quite the right’s points, but as I said, you and they are on the same side on this one.

        Me? I really like electricity and what it does for me, and I realize that producing electricity has costs. Rare earth minerals from China for wind or batteries, coal fired plants polluting the air, solar cell technology still on the “cold fusion” side of reality, hydro power opposed by every envirofreak in the country and too costly to license, what really is left? Submarine sized nuclear package plants on the edge of town? That was Stewart Brand’s answer.

        Yes rail was subsidized. You know the rationalization for why the holding companies were allowed to decouple the land subsidy from the rail, right? “They carried troops for free in WWII”. So huge infrastructure was ripped out never to be able to be built again. But rail is incredibly dirty and polluting and dangerous in ways you can’t even imagine. I doubt a railroad could ever be permitted in this country again. It’s far worse than some newly built big rigs running down a highway.

        • The Polish Wolf

          Electricity is also my big environmental vice – I don’t hog gasoline, but I probably use more than my fair share of electricity. However, I think the key here is trying to get the best of both worlds – trying to avoid PSC regulation but still getting to condemn land because you are operating ‘in the public’s interest’. Once they accept public oversight, though, I agree that this is clearly in the public interest as laid out even in the strictest reading of the constitution.

          And to clear up a common misconception you noted about rare earth minerals- China is not the ‘Saudi Arabia’ of rare earth ores; it is instead the Russia of rare earth ores. Their dominance of the market derives not from actually having more of them, but from having the infrastructure (and lack of environmental regulations) in place to exploit them, as well as the willingness to give the finger to WTO rules when it comes to manipulating the market for them for geopolitical purposes.

          Lastly, I’m curious how railways are more polluting than highway transportation. They use demonstrably less fuel, and are easier to convert to electricity, but honestly I don’t know much more about them and I’m curious about the downsides.

          • what, exactly, is the “public interest” with MATL or MSTI? The public interest you are currently willing to condemn for while “trying to avoid PSC regulation”?

            I don’t want to assume anything.

          • mr benson

            Answering Polish wolf: In my experience, granted, only fifteen or so years’ worth, railroads carry the kind of “out of sight, out of mind” chemical soups that we don’t know about, until, for example, a chlorine car cracks open and kills people who drive into the cloud, or a tank car drips poison from Laurel to Seattle; ammonium hydroxide, hydorchloric acid, nuclear warheads, leaking recycled batteries, etc. Just a dripping, oozing, hissing, relatively unnoticed and unregulated goulash of goodies.

            Railyards are covered with oil smut. In the old days, each wheel axle was lubricated with used motor oil, which dribbles and oozes out the journal box and onto the ground. Now, anything crossing an interchange are roller bearings, but not in the good old days.

            A semi starts spraying sulphuric acid out from the bottom of it’s trailer is gonna get noticed in a hurry. You think a tank car rolling down the high line gets the same scrutiny?

        • I was pointing to the specifics on the examples you mentioned because they aren’t really what MSTI or MATL are. Of the examples you cited, only one was a private for-profit enterprise (the others had a government connection).

          And the private for-profit enterprise was, in the end, pretty shitty deal for Montanans.

          I’m not against wind, or even transmission lines,per se – but I’d prefer that we regulate them so that Montana (the wind basket of the U.S.) doesn’t see our landscape polluted with lines due to monopolization by those that got in first….and so that Montanans don’t pay infrastructure costs of Californian’s electricity.

      • Ross

        Please see below. But you are absolutely wrong that they there is “nothing in law that can make they allow you to tie into these lines”. Contrary, the law actually requires that they allow anybody to tie into and use the transmission lines at cost based rates.

  7. Ross

    Your wrong that “any public project that might want access” can not access these lines. Both lines, MSTI & MATL, are open to projects to use their capacity, whether public or private, and the Federal Energy Regulatory Commission (FERC)actually requires the same level of access, which must be “Open” & “non-discriminatory” on our nation’s high-voltage electrical system.

    The lack of MT PSC regulation is really not a matter of whether the lines have “common carrier” designation as Mr. Molnar believes. Electrical transmission, because of its interstate nature, is almost always under the exclusive jurisdiction of the FERC for issues not related to siting (market access, tariffs, etc.). To the degree that state utility commissions regulate new transmission lines, it is typically through planing processes and their approval of new generation which may be associated with new line construction.

    • Ross – thanks for your comment.

      If I got it wrong, it wasn’t for lack of trying to seek clarity on the matter.

      What you are saying, though, even contradicts recent confirming statements by the PSC that the way these lines are being approved leaves it open to Montanans bearing an unbalanced amount of cost for the lines should projects that serve Montanan’s tap in.

      Certainly, I’m not against wind energy….but what point I want to know is when it is a public benefit? The idea that projects proposed to service out-of-state interests can tromp on private property rights without any real benefit to Montanans is not something I want to see here in Montana.

      Looking at the list of things that can be “taken” under eminent domain under the laws of the State of Montana (linked to in the post), it’s pretty expansive.

      What Montana has suffered from since the beginning of its time is its willful submission to colonialism. We don’t learn from our history, and we continue to even undo laws that were designed to fix previous ills.

      The history of Montana’s corruption is well-written in the halls of the U.S. Senate, just as it is on the landscape of Butte.

      What is the threshold of public benefit? Because if it’s “open to the public” or “jobs” that’s a bit too open of a standard.

      • Ross

        I understand that it is hard to get clear information on energy, and energy policy in the state, and that individual commissioners have from time muddied these waters.

        What I am saying – that their must be open and non-discriminatory access to the transmission – system does not contradict established policy by the FERC on how cost reimbursement will be allocated.

        The FERC has yet to approve, thought they have decided against one proposal, as to how the MSTI line will be funded and how cost allocation will take place. Anyone that is saying that the line will increase costs for rate payers, is conjecturing (including members of the PSC) about what NorthWestern may propose and what the FERC will approve.

        Your argument about just uses of eminent domain power of course interacts with these issues, but I think that it will be sharpened by understanding the clear principals of federal regulation in regards to the transmission system.

  1. 1 The Moral Liberal

    Minnesota Supreme Court Agrees to Hear Important Property Rights Case…

    trackback >>The Moral Liberal: Defending the Judeo-Christian ethic, limited government, and the American constitution>>…




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