Eminent domain snags progress on MATL again as backers file to condemn 11 parcels

The backers of a 215-mile-long electricity transmission line in northwest Montana have filed to condemn sections of 11 private parcels along the approved route in a case that could determine the future of wind-power development in the state.

Toronto-based Tonbridge Power Inc. argues that the private parcels, which cover roughly 15 to 20 miles of the total Montana Albert Tie Line project route, are necessary to complete the power line, which is designed to carry wind-generated power and would link the electricity grids of the Great Falls, Mont., area to Lethbridge, Alberta.

Tonbridge Power filed to condemn the parcels last week after negotiations between the company and property owners over compensation for the land unexpectedly broke down.

"This wasn't something we wanted to do," said Darryl James, the regulatory manager for MATL LLP, the Helena, Mont.-based Tonbridge subsidiary that is overseeing the power line project.

Tonbridge Power claims it was granted authority to condemn the private parcels by the Montana Legislature, which approved a bill this spring allowing public utilities and private energy companies the right to use eminent domain for transmission-line projects that have already received state environmental permits, such as MATL, and are deemed to be in the public interest.


But H.B. 198, which became law on May 6 without Gov. Brian Schweitzer's (D) signature, has been challenged in the state's 9th Judicial District Court by the same 11 landowners involved in the latest condemnation proceedings.

In the lawsuit filed in late May, the property owners asked the court to rule that H.B. 198 "is void," claiming it denies them the "right to due process" under the U.S. Constitution and the Montana Constitution.

Hertha Lund, a Bozeman, Mont.-based property rights attorney who is representing the 11 landowners in the lawsuit, declined to comment for this story. Lund told the Great Falls Tribune last week that her clients "made proposals" during the mediation session, and that the MATL backers "never put anything on the table."

James, who said the company would like to resume negotiations with the property owners, accused Lund of unexpectedly raising compensation demands for her clients during last week's meeting.

"I think the most frustrating thing is that in the weeks and months leading up to [last week's] mediation session, there were a number of discussions about what the landowners wanted in relation to route realignments and structural changes, and we were able to make some [changes] and alignment shifts," James said. "So we felt like we were going into the mediation session with ground to give and progress to make, but their attorney kind of raised the compensation demands. You expect some of that in mediation, but these were far greater demands that were not moving us to the middle."

Growing frustration

The condemnation proceedings are the latest in the ongoing battle over access to the private property needed to build the 230-kilovolt line.

Tonbridge Power has already begun construction and had targeted completion by September. However, in its year-end financial report released May 2, the company reported that the project is four months behind schedule, mostly due to "harsh weather delays." The project is also $5.8 million over budget, possibly requiring "additional funding to complete the MATL Transmission Line," according to company records.

But nothing has held up the project more than the ongoing debate over eminent domain and whether an energy company should have the authority to take private property.

When the company first attempted to use eminent domain last year on a family-owned parcel near Cut Bank, Mont., the landowner challenged. The result was a December decision by Montana District Court Judge Laurie McKinnon that MATL's eminent domain claim was illegal because, she ruled, only the state has authority to condemn and seize private parcels.

But McKinnon allowed that the Montana Legislature could grant eminent domain authority to transmission line developers or other special interests (Land Letter, Dec. 23, 2010).

McKinnon's ruling sparked H.B. 198, sponsored by state Rep. Ken Peterson (R), which become law last month. Armed with that legislation, the MATL backers fully expected to resume construction activity on the power line this spring.

Now, Tonbridge Power officials concede they're not sure where the issue is headed. The condemnation proceedings against the 11 property owners could take as long as six months to complete, James said.

"That clearly jeopardizes our intent to finish the project by the end of the year," he said.

A 'heavy-handed approach'

Bruce Maurer's 4,700-acre wheat and barley farm in Power, Mont., has been in his family for a century, but he's one of the 11 property owners who could be forced to make room for the MATL project.

If Tonbridge Power is successful, the MATL high-tower transmission line would cut a 105-foot-wide corridor across a 2-mile stretch of the family farm, running within about 1,500 feet from the back door of his house.

Maurer said he and his neighbors certainly understand the need for expanded transmission capacity in the state, and he said they are not necessarily opposed to the MATL project.

"You have to have power lines here and there, and you have to live with them," he said. "But if you're going to build a permanent structure like a power line, you'd think you'd build it as best you could in the best place you could, and that's just lost on them."

Maurer said he first began discussing the power line project with Tonbridge Power in 2005 and that he thought he and company officials had agreed on a power line route that would not significantly affect his farm. Then in 2009, he said, he received a notice and a map in the mail stating the route had been set and, much to his surprise, it would run near his house.

"It's this heavy-handed approach they're taking," he said. "There are pathways they could choose that would make darn near everyone happy. But they won't lift a finger to even try. They think they have this route authorized, they think they can take it and that's what they are trying to do."

James said Tonbridge Power is not insensitive to Maurer's concerns and that they would be willing to continue working with him on a suitable route.

Transmission lines key to realizing state's wind power potential

However the issue is resolved, the power line will eventually need to be built if Montana is ever going to develop its immense wind power resource, industry observers say.

Montana ranks near the top of all the states in total wind power resource potential, according to the American Wind Energy Association, with one Harvard University study estimating that the state trails only Texas in wind power capacity (Land Letter, Dec. 23, 2010).

But Montana ranks 21st in total installed wind power capacity, with a paltry 386 megawatts installed through 2010, according to AWEA. A big reason is the lack of adequate transmission, experts say.

MATL -- which will run through an area with some of the highest-rated wind power potential in the country -- is expected to spark more than $1 billion in wind power development, potentially setting off a renewable energy boom in the state (Land Letter, Nov. 4, 2010).

With construction under way, several wind power generation companies have signed on to use the line, including San Francisco-based NaturEner USA LLC, which plans to build the 309-megawatt Red Rock Wind project as soon as MATL is completed.

Other planned transmission projects in Montana are similarly tied to the projected expansion of wind turbines across the state. The largest is TransCanada Corp.'s $3 billion Chinook line, proposed to carry as much as 3,000 megawatts of mostly wind-generated electricity from new and expanding wind farms in Montana to large population centers in Arizona, California and Nevada (Land Letter, Sept. 23, 2010). Another is the Mountain States Transmission Intertie, a $1 billion, 400-mile line designed to carry electricity from wind farms in southern Montana to southeast Idaho.

Click here to read the lawsuit against H.B. 198 and the MATL project.

Streater writes from Colorado Springs, Colo.

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