Wednesday, May 25, 2011 3:33 pm | By Grant Morgan
Landowners and Activists groups have begun to organize opposition to the expansion of eminent domain power passed last week by the Montana State legislature. The new law, HB 198, permits privately-owned utilities to use eminent domain power and to condemn private property in order to build transmission lines. The law has been challenged in two court cases. The first case deals with a 214-mile-long transmission line for a wind farm in Northern Montana. The landowners initially won a ruling in December of 2008 that said that a private utility did not have the right to invoke eminent domain. However, that initial ruling occurred before the passage of the new law, which appears to overturn it. A second legal challenge, filed on Friday, contests the constitutionality of the expansion of eminent domain power.
Additional opposition to the new law has emerged from within the state legislature. Public Service Commissioner John Vincent (D-Bozeman) is attempting to organize a ballot initiative to challenge the law in 2012. On Tuesday Vincent stated that: “there’s really nothing in state law mandating that a corporate, for-profit project be required to prove it meets a legitimate public need or that it’s in the best interests of the public”, calling the law “a deal with the devil.”
In contrast, proponents of the new law have argued that corporations which are involved in expensive utility projects need greater certainty that they will be able to build those projects without obstruction before they invest. They argue that the new law is a much-needed clarification of existing eminent domain powers, restoring the status quo as it was before the initial court ruling denied eminent domain to the unities.
In one sense, they are correct- the limits of eminent domain law in Montana do need clarification. However, HB 198 moves in the wrong direction. A clarification of the law which upholds the rights of individual property owners, such as the eminent domain reforms recently passed in Texas, is infinitely preferable to the Montana law. The legislation recently signed in Texas by Governor Perry denies eminent domain power to private entities, and requires that the state pay the fairly assessed value of any land taken. In contrast, Montana’s HB 198 neither requires a clear public purpose for the land-taking nor gives property owners a reasonable chance of obtaining fair value for their land. Therefore, the opposition to the Montana law, and the efforts of property owners and their legislative supporters, ought to be applauded.