Eminent domain sparks debate

A bill that would roll back some of the eminent domain powers granted by the 2011 Montana Legislature was debated Tuesday in Helena before a packed house at the Senate Energy and Telecommunications Committee.

Landowners and executives from companies and utilities that build power and pipelines were on opposite sides of the debate.

At issue was Senate Bill 180, sponsored by Sen. Debby Barrett, R-Dillon.

It would repeal the explicit grant of authority to a public utility or a developer to exercise the power of eminent domain that comes with a project permit awarded under the Major Facility Siting Act.

"Nothing in Montana is more vital and more important than private property rights, so that is why I brought Senate Bill 180 and I'm still asking you to pass that," Barrett said at the close of the hearing.

Senate Bill 180 addresses "merchant" power lines, Barrett said. Merchant lines are a "new animal" in Montana, she said.

An example of a merchant project is the Montana Alberta Tie Line, a transmission line built to ship electricity from wind farms to market. It's being constructed between Great Falls and Lethbridge, Alberta, and will create additional shipping capacity for wind farm developers.

"They are not our public utilities," Barrett said. "They are not regulated by the Public Service Commission."

It was the MATL project that prompted the debate over eminent domain.

Last session, lawmakers passed House Bill 198, which ensured both public utilities and other developers of pipelines and power lines have the authority to use eminent domain if need be. That bill was passed after a district court judge in Glacier County ruled in 2010 that the MATL developer didn't have the right to use eminent domain.

Some of the property owners in the path of the MATL line testified in favor of Barrett's SB 180. The U.S. portion of the project is nearing completion.

Bruce Maurer of Maurer Farms near Power, who fought the project, said it's too easy now for an unregulated utility to obtain eminent domain authority.

HB 180 would rectify the grant of eminent domain authority that a developer automatically receives when it's awarded a Major Facility Citing Act permit, he said. "That's the only requirement," Maurer said.

On the other side, John Fitzpatrick, a spokesman for NorthWestern Energy, the state's largest public utility, argued against it and said that HB 198, passed in 2011, just restored eminent authority that had been the law before the district court case.

Without eminent domain, NorthWestern and other parties that need to build lines to get electricity or gas to customers can't do their jobs, he said. A certain number of people always attempt to obstruct projects and not just large projects, he said. Smaller gas and power line installations to subdivisions would be affected as well, he said. Eminent domain, he said, keeps people out of court and at the bargaining table, said Fitzpatrick, who called the bill poor public policy that would compromise the economic future of the state.

Committee members did not vote.