Barrett’s Eminent Domain Bill to Repeal Montana’s Own Private Kelo at Executive Action Thursday

by jhwygirl

Sen. Debby Barrett’s bill to repeal last session’s eminent domain debacle had it’s hearing in Senate Energy and Telecommunications yesterday. A roomful of people, with overflow out into the hall, testified overwhelmingly in support of SB180

Northwestern Energy’s attorney Mr. Fitzpatrick spent a significant amount of time – after great theatrical preparation for his opposition testimony – continuing to blur the lines between merchant lines and distribution lines.

Distribution lines being lines which actually serve public uses here in Montana. Public uses that are regulated by the PSC. Public uses that have an elected official answering for the public uses that have, at times, been reason for an eminent domain taking of private property.

2011’s eminent domain bill handed handed the power of eminent domain to private corporations for the purposes of economic development. That, my friends, is the equivalent of the famously decried Kelo v. City of New London, which held that a private property could be condemned by developers in the name of economic gain and tax revenue.

Below the fold is Sen. Debby Barrett’s proponent statement and Missoula Sen. David Wanzenried’s comments submitted to the public record for SB180.

Before I do that, though, I’m going to provide the email addresses of the Senate Energy and Telecommunications Committee and ask you all to write these guys and tell them that keeping eminent domain power in the hands of private corporations in the name of jobs or economic gain or the guise of some sort of public beneficial review during the Large Facilities Siting Act review is wrong. Tell them eminent domain is a necessary component of government, but that the power belongs with the government and not in the hands of a private corporation. Here are the emails:,,,,,,,,,,,,

Barrett and Wanz’s testimony below….

Sen. Debby Barrett’s:

Mr. Chairman,

My name is Debby Barrett. I represent the citizens in SD 36, and it is at the request of most of those concerned citizens from my district, citizens that did indeed establish 3 different local “citizens groups” gravely concerned by the actions of the 62nd Legislature when it passed HB 198 in 2011.

HB 198 “expressly gave private power-line developers the right to condemn private property to build a transmission line.” This authority of eminent domain, now granted to merchant lines in Montana, is based solely on a certificate under the state’s Major Facility Siting Act. Using MFSA as the trigger for condemnation authority is wrong because MFSA is an environmental statute that is not suited for determining whether a transmission project is necessary. Further, the staff at DEQ are not trained or prepared to determine where the next power lines should be built to best benefit Montana. Any new project for transmission lines should have to be first approved by the P S C.

Other states do not give private entities the power to condemn through an environmental statute like MFSA.

Mr. Chairman, members of the committee, I would like to propose the following amendment to SB 180. Please strike in its entirety line 14. The reason being – Public Utilities are regulated in this state by the Montana Public Service Commission.


Since 2005 with the U.S. Supreme Crt. Decision of Kelo v. the City of New London, a case where the Supreme Crt. Decided 5-4 that the Connecticut city had a right to seize private property for a hotel, condos, and offices. States have tried to shift the balance of power in landowners’ favor.

More than 40 states have enacted laws limiting or prohibiting property seizures for economic development. In Montana, during the 2005 Session, the Legislature passed two bills preventing the taking of private property in cities by developers. SB 41, an act providing that a city or town may not serve as a pass-through entity by using its power of eminent domain to obtain property, was passed.

And, the second bill, SB363, an act providing that private property may be condemned through the use of eminent domain for urban renewal projects only if the property is determined to be blighted and may not be acquired by eminent domain if the purpose of the project is to increase tax revenue, was also passed.

And, sadly, last session, while the Legislature was granting MATL eminent domain rights in Montana, in Wyoming that same year, wind companies’ rights to seize private property was put on hold.

This session it is time for the Montana Legislature to finally get it right and protect private property rights on the land from private developers —– just as they protected those same private property rights within a city EIGHT years ago.

Please correct this discrepancy in our eminent domain laws, and pass SB 180.

Sen. Wanzenried:

In order to ensure that those travelling long distances to testify in favor of Senate Bill 180 are afforded the maximum amount of time to express their points of view, I am submitting my support for the bill in writing.

Senate Bill proposes to repeal House Bill 198, which was enacted in 2011 was characterized as “An Act Clarifying a Public Utility’s Power of Eminent Domain; Clarifying That A Person Issued A Certificate Under the Major Facility Siting Act Has The Power Of Eminent Domain, And Providing An Immediate Effective Date And A Retroactive Applicability Date”.

From my perspective, it was always the latter “clarification” that was totally inappropriate, not the former.

The first clarification was simply a ploy to try to sell the whole clarification concept that the supporters were simply seeking to ratify and codify the reality of rights which have always existed.

However, everyone knew (or should have known) that the real purpose for this legislation was to grant the power of eminent domain to private utilities constructing private-for profit utility lines.

The grant of this power to private merchant lines was accomplished by authorizing acquisition of property by eminent domain by any person issued a certificate pursuant to the Major Facility Siting Act for construction of a facility having a public use authorized by law.

No definition of the “public use” noted in Section 75-20-113 was included in HB 198. Furthermore, no good argument was ever advanced as to why issuance of a certificate of compliance by DEQ pursuant to the Facility Siting Act should ipso facto carry with it the power of eminent domain. From the outset, the focus of that Act has been to ensure that the location, construction and operation of covered facilities/projects are constructed and operated in accordance with applicable Montana laws—-not in any manner to bless and pass on to the applicant the extraordinary legal right of eminent domain to facilitate implementation of a private project.

For that reason, it is totally appropriate to repeal section 75-20-113 as it should never have been adopted in the first place.

However, I have genuine reservations with respect to the repeal of section 69-3-113. That section specifically incorporates the longstanding provisions of Section 69-3-101 as the basis for defining “public utility” and further provides that the exercise of eminent domain must be “for a public use authorized by law to provide service to the customers of its regulated service.”

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