" Below you will find a letter written by our elected representatives explaining why they have voted for HB 198 whose future use will allow any company or corporation to condemn rural property. Below that, you will find my response to them. I thought republicans were on the side of protecting private property rights? Situational normal, they got the grease, we get the shaft.
This is a long read - and if you own rural property, it will be an eye opener as to what our three elected representatives have done to rural property owners by their vote. I must be crazy - I thought their JOB was to represent our voice.
If you wish to express your thoughts on this subject, go to
Rhoda
By Rep. Mike Cuffe, Rep. Jerry Bennett and Sen. Chas Vincent
House Bill 198, involving eminent domain issues, meets constitutional standards for both U.S. and Montana Constitutions. Our thoughts are outlined below.
After considerable consideration, each of us have or will vote yes on House Bill 198, commonly referred to as the Eminent Domain Bill. This bill addresses one particular issue and doesn’t expand or change eminent domain in any way other than to write down how it traditionally has been applied in Montana.
House Bill 198 was developed to address a specific issue in northern Montana which developed when a district court ruling overturned 100 years of legal precedent regarding eminent domain. Until now, the construction of an electric power line has been widely considered a public use for which a right of way could be acquired through eminent domain. The Legislature’s declaration of public use determines whether eminent domain is or is not appropriate. But the court said the Legislature hadn’t specified whether the nature of that public use changes based on the character of the person or company building the power line. In this case, a Canadian corporation more than 60 percent owned by Americans was building a power line which included a collector line feed from Montana wind generators as well as electricity generated in Canada. The company had successfully gone through the Montana DEQ permitting process and had invested millions of dollars into the project. This process is both very extensive and very expensive, and the corporation is licensed to do business in Montana.
We did review both Montana and U.S. Constitutions prior to supporting H.B. 198. We agree that this bill did fit constitutionally with both.Basically, Eminent Domain, the taking or use of private property for public use, can be exercised as long as just compensation is provided.
--Per U.S. Constitution:“…nor shall private property be taken for public use, without just compensation.”
--Per Montana Constitution: “Private property shall not be taken or damaged for public use without just compensation to the full extent of the loss having first been made to or paid into court for the owner. In the event of litigation, just compensation shall include necessary expenses of litigation to be awarded by the court when the private property owner prevails.”
House Bill 198 puts into statute what has been practiced since the early days of Montana. We believe this was a good and necessary vote for Montana. Over the years, Eminent Domain has been exercised for roads, ditches, logging flumes, logging railroads, dams, mining operations, pipelines, other railroads power lines, and highways. It has been exercised by governments and private corporations from both Montana and other places.
House Bill 198 was narrowly written to reaffirm the longstanding legal tenet that a certified entity providing electrical transmission has the right of eminent domain in the event a negotiated agreement cannot be reached. Passage of H.B. 198 clarifies the status quo prior to the district court’s ruling in November, 2010. This bill is supported by Northwestern Energy, MDU, and MATL and would apply retroactively to Major Facilities Siting Act (MFSA) certificates issued since September, 2008.
House Bill 198 clarifies that public utilities regulated by the Montana Power Service Commission have the right to use eminent domain, if necessary, in the construction of a power line. It also clarifies that a project certified under MFSA by Montana Department of Environmental Quality has the right to use eminent domain.
None of the provisions in this bill expand eminent domain, nor does it empower anyone other than those already set out by the Montana Legislature. Any entity seeking to build a transmission line for renewable or traditional energy transmission would still have to comply with the MFSA certification process. Again, this is both expensive and involves extensive work. Due process and just compensation aren’t addressed in House Bill 198, they remain the same as outlined in the Constitution. As amended, this bill doesn’t apply to a public utility’s affiliates and subsidiaries. Despite popular belief, H.B. 198 doesn’t specifically address MISTI transmission line because that project has yet to receive MFSA certification.
DUE PROCESS and MFSA Modifications
In addition, there are several bills currently in the works to improve the process of siting a power line to allow more flexibility for landowners and project developers. They will also ensure that landowner considerations are put in the front end of the process of negotiations, rather than at the end.
All three of us have been involved with all of the legislation proposed because we believe that most of the problems surrounding the MATL project could have easily been avoided and should not be revisited in the future.
Eminent domain is and should always be used as a last resort, but it is a necessity for many public purposed. If we are to be a state that responsibly develops its natural resources we need the infrastructure in place to be able to do so. We also need to strike a delicate balance with private property rights, as they are equally important to a free and prosperous state. When the two collide we need to ensure that there is a fair and equitable process to produce livable outcomes for everyone involved.
REPLY TO THE THREE MUSKETEERS:
For all the sound bite chances the Daunting Trio (DT’s) has produced, they do not begin to address the real issue. Does the legislative branch have the power to interpret law? The answer to that is NO.
The Montana Constitution provides for three distinct and separate divisions of government; Executive, Judicial and Legislative branches. It was thus established as a means of check and balance; each with their own distinct areas of authority so that no one branch could gather all power. Each of these branches has a distinct and essential role in the function of the government, as established in Article III, Section 1:
The power of the government of this state is divided into three distinct branches--legislative, executive, and judicial. No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others (emphasis added), except as in this constitution expressly directed or permitted.
All three branches have specific functions: The executive branch is to ensure that laws are carried out and enforced to facilitate day-to-day responsibilities of the state government. The legislative branch, as a whole, is charged with passing the state’s laws and allocating funds for the running of the state government. The judicial branch’s primary function is to hear cases that challenge legislation or require interpretation of the legislation.
THE ISSUE: Does the Legislature have the power to interpret law?
HB 198 is unconstitutional in that it usurps the power of the Judiciary. It is the constitutionally provided, distinct and singular authority of the judiciary to interpret legislation. HB 198 is a bill that circumvents this process. It is an action that is constitutionally prohibited: No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others
The issue here is not the constitutionality of eminent domain; it is who is authorized by law to exercise that power. To answer that question requires “interpretation” which is constitutionally given to the judicial branch NOT the legislative branch. In the specific issue of MATL this bill will, in effect, over turn a court ruling. The legislative branch does not have the constitutional authority to do this.
MATL believed it had the authority, by law, to condemn property. A Glacier County Judge ruled that the legislature had never “granted a corporate entity the right to condemn private property for the business of constructing and operating a private (for profit) “merchant” transmission line.” Attorney Hertha Lund.
Lund further states, “The fact is that the U.S. and Montana Constitutions protect property against taking for private purposes. Montana law provides: "Eminent domain is the right of the state to take private property for public use." The Legislature may grant eminent domain authority in order to override an individual's private property rights, but only for a public use [emphasis added]. The Court found that the legislature had not [emphasis added] given MATL power to condemn private property.”
The criterion for eminent domain has always been public use. The bill, in Section 2, strikes out “public use”. Roads are such projects that provide benefit to the public. “But MATL will not provide electricity to Montana homes (or even American homes).” There is no public benefit derived from MATL
HB 198 does not clarify the law, it revises it. It is claimed by the DT’s from Lincoln County that it only clarifies a practice that has existed, by opinion, for over one hundred years in Montana . If status quo were applied to this situation, it would mean “allowing a public utility, which MATL is NOT, the authority to condemn property for the development of transmission lines to deliver electricity to Montanans (which it will not)”. This is NOT old history, it is a ground breaking entrance into virgin territory; Merchant transmission lines.
I find it ironic that when MATL brought a condemnation suit against land owners, the court held MATL had no such authority. MATL could not provide constitutional or statutory reference that supported their position. When the land owners won, they were seen by many legislators as the problem that prevented this multi-million dollar, federally funded, project from being completed; when in fact, it was MATL’s lack of due diligence that created the problem.
MATL believed the OPINIONS of the governor and legislators that assured them they had eminent domain authority. It was their law suit filed against private property owners in a condemnation preceding that back fired on them when the court ruled they did not have condemnation authority. MATL is at fault for not recognizing merchant lines were not addressed by existing law. Lack of due diligence has put MATL in a time crunch with federal stimulus money and they sought immediate relief from those that assured them they had authority, i.e., the governor and MANY legislators.
The Court found: "Private real property ownership is a fundamental right," and stated: "MATL does NOT possess the power of eminent domain, either express or implied, and it has NO authority to take the private property from a non-consenting landowner."
The DT’s claimed, in their letter, they have reviewed the constitution and all agree MATL has condemnation authority. The only thing they proved is that they know how to cut and paste. Mike Cuffe is a former newspaper editor. Bennett, I think is a local businessman and that leaves the last, but not least, a 15th generation logger. I will stand corrected on the DT’s background, but one thing I know for certain is that none of them our constitutional scholars. What arrogance to proclaim that elected position bestows upon them some qusai-heavenly power that has taken experts decades to be conversant in.
The issue is who has authority. The problem is legislators usurping judicial powers. Period.
Living in Lincoln County , I am ashamed to admit on this widely read public forum that the DT’s are the best representation that the people of Lincoln County could pick. Their combined arrogance and comments are an affront to the citizens of Lincoln County and to state citizens as a whole.
Put this issue where it belongs; in the court system.
We will address you in the next election.
My mama taught me: If I want to know “why”, follow the money. ""
Crystal L. Cox
Investigative Blogger
"the Media"
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