HB 198 LAWSUIT
Hearing for the HB 198 Lawsuit was on 12/22/2011 at the Montana Park County Courthouse, Livingston, Montana. In early January, Judge Swandal, of the Montana 6th District Court, ruled against the landowners. Subsequently, the landowners have requested reconsideration of the ruling. The brief filed for reconsideration will be posted here when it is available to the public.
CCM Amicus Brief for HB 198 Lawsuit
Postings for HB 198 lawsuit briefs are given below for:
1. Landowners' Motion for Summary Judgment
2. Landowners' Brief in Support of Motion for Summary Judgment
3. Joinder in Defendant MATL's Motion To Strike Affadavit of Kyle Burgmaier
4. Memo in Opposition to Plaintiffs' Motion for Summary Judgement
LANDOWNERS FILE COMPLAINT AGAINST MATL, LLP AND THE STATE OF MONTANA - 5/20/2011
A complaint for declaratory and injunctive relief was filed today in the Montana Ninth Judicial District Court Teton/Pondera County against MATL, LLP and the State of Montana on behalf of several landowners who own lands through which MATL has secured a transmission line corridor. The landowners seek a determination that House Bill 198 is unconstitutional because it denies them the right of due process, property protection, the right of citizen participation, and the right of equal protection. The complaint also specifies that House Bill 198 is unconstitutional as it violates the prohibition of retroactive legislation and the prohibition of special legislation because it is legislation specific to MATL.
COMPLAINT FILED AGAINST STATE OF MONTANA/MATL,LPP
HOUSE BILL 198
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.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Power of eminent domain. A public utility as defined in 69-3-101 may acquire by eminent
domain any interest in property, as provided in Title 70, chapter 30, for a public use authorized by law to provide
service to the customers of its regulated service.
Section 2. Power to exercise eminent domain. A person issued a certificate pursuant to this chapter
may acquire by eminent domain any interest in property, as provided in Title 70, chapter 30, for a public use
authorized by law to construct a facility in accordance with the certificate.
Section 3. Codification instruction. (1) [Section 1] is intended to be codified as an integral part of Title
69, chapter 3, part 1, and the provisions of Title 69, chapter 3, part 1, apply to [section 1].
(2) [Section 2] is intended to be codified as an integral part of Title 75, chapter 20, part 1, and the
provisions of Title 75, chapter 20, part 1, apply to [section 2].
Section 4. Contingent voidness. If a repeal of the provisions of Title 75, chapter 1, parts 1 through 3,
or a repeal of the provisions of Title 75, chapter 20, parts 1 through 4, is passed and approved during the 62nd
legislative session, then [this act] is void.
Section 5. Effective date. [This act] is effective on passage and approval.
Section 6. Retroactive applicability. [Section 2] applies retroactively, within the meaning of 1-2-109,
HB0198
to certificates issued after September 30, 2008.
GROUPS THAT OPPOSE HB 198
Northern Plains Resource Council - http://www.northernplains.org/
Montana Farmers Union http://www.montanafarmersunion.com/
Montana Farm Bureau Federation -http://mfbf.org/
Montana Stockgrowers Association - http://www.mtbeef.org/
Montana Cattle Women - http://www.montanacattlewomen.org/
Women Involved in Farm Economics - http://www.facebook.com/WIFEline
Beaverhead Outdoors Association -BOA
Lewis & Clark's Conservative Tea Party - http://www.lccteaparty.org/
Concerned Citizens Montana – www.concernedcitizensmontana.net
Keep It Rural Southwestern Montana - www.keepitrural.net
Stop the Grid - http://www.stopthegrid.org/
Save Scenic Jefferson Valley Coalition - http://www.savescenicjv.org/
Friends for Southwest Montana - schendel@mtweb.net
MoveMSTI -www.movemsti.com
Jefferson County Commissioners -http://jeffco.mt.gov
Lewis and Clark Chapter of Trout Unlimited -http://www.lctu.org
Jefferson River Canoe Trail Association -http://www.jeffersonriver.org
PolyMontana – An edberry.com site http://polymontana.com/
Hertha Lund – MATL opposition -Lund@Lund-Law.com
GREAT INFORMATION SOURCE ON HB 198:
Western Ag Reporter -http://westernagreporter.com (a subscription is needed, but you can sign up for a 2 month online trial subscription.
OP-ED ON HB 198 BY PSC COMMISSIONER JOHN VINCENT
HB 198 did, in fact, significantly change Montana eminent domain law because it wrote specific language into statute (Montana's official laws as passed by the legislature) that had never been in statute before. It created a "one-stop shopping" mechanism by which private individuals and corporations can all too easily secure the right of eminent domain for private, for-profit projects.
Under the new HB 198 law, eminent domain and condemnation rights are "automatically" granted to a corporate applicant upon the issuance of a certificate of compliance from the Department of Environmental Quality under the Major Facility Siting Act. This certificate is all that's necessary for a corporation to obtain the right of eminent domain and the right to condemn private property.
"One Stop Shopping." Why is this a problem? It's a problem for three reasons:
First, because it establishes a corporations right of eminent domain for a private project upon the approval of DEQ, instead of having to obtain those rights separately under another Montana statute. HB 198 supporters also cling to what's called the Fondren decision, in which they claim the court conferred eminent domain rights on an applicant under the Major Facility Siting Act. Clearly the corporate supporters of HB 198 had so little confidence in their legal positions, and such a compelling interest in obtaining eminent domain and condemnation rights as quickly and easily as possible, that they went to a compliant legislature to create a new "one stop shopping" law instead of making their case in court.
Second, it's a problem because the Major Facility Siting Act is essentially a "toothless tiger." The legislature has torn it apart and weakened it session after session for years. HB 198 supporters like to say that a "public need" must be established under the Major Facility Siting Act for a corporation to obtain eminent domain for a private, for-profit project. Sounds good but it's really no obstacle at all, primarily because the public need criteria in the Major Facility Siting Act are so broad, general and generic that it would be difficult, maybe even impossible, NOT to find a public need.
In addition, the fact that most new transmission lines really aren't "public need" lines but "market lines," isn't addressed in the Major Facility Siting Act. Because of deregulation, transmission lines are now built first and foremost to market and sell more electricity (not meet an objectively established "public need" within a regulated service area).
Finally, politics. In practice, the DEQ siting process for major projects isn't a neutral, objective fact finding exercise at all. It's, at base, a political process in which data is collected and selected to support the findings needed to issue a certificate of compliance.
And how's that? When a governor, any governor of either party, picks up the phone and tells his/her DEQ director, "I want this project," guess what? Game over. Done deal. The "public need," the project, the certificate of compliance and the right of eminent domain to condemn private property are all handed to a private corporation, virtually on a silver platter.
The HB 198 eminent domain law is a huge, misguided change, and blaming the supporters of IR 125 for misrepresenting it has gone on long enough. This I know; "Blame is always never enough. It just keeps you in the game, till you've only got yourself left to bluff."
(Submitted to CCM website for posting, 9/2011; published in several Montana newspapers, 9/2011)
John Vincent is a Montana Public Service Commissioner. He twice served as Speaker of the House in the Montana Legislature.