Op-ed: Property rights

By John Vincent
The corporate opposition to IR 125, the citizens referendum to repeal
the new HB 198 eminent domain law, continues to claim that ‘the new
law is the same as the old law.’ Their claim is a textbook example of
how to mislead by omission and the careful choice of words. As Paul
Harvey use to say, here’s “the rest of the story.”

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 (DEQ) under the Major Facility Siting Act (MFSA) 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 MFSA. 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’ a problem because MFSA 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 MFSA 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
MFSA 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 MFSA.
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.”

John Vincent is a Montana Public Service Commissioner and former two
term Speaker of the Montana House of Representatives.