Until you’ve been threatened by a company trying to take possession of your land, eminent domain probably doesn’t mean much to you. When a developer knocks on your door, saying it needs a 60-foot swath through your land and that you should sign an agreement for the good of the public, you may reasonably fear what this will cost you. But if the developer is armed with the power of eminent domain — the power to purchase your land whether or not you want to sell it — then he can literally make you an offer you can’t refuse.
You may even approve of the project, but you realize that the agreement presented to you does not protect you from liability or emergencies, and that the price they are offering does not make up what you would lose in production on that land, or that it reduces the value of your property, or how the project affects the remainder of your operation. You may realize that you cannot afford to sign such an open-ended agreement. But in the end, you do not have the right to refuse.
The ability to acquire someone else’s land — regardless of their willingness to sell — is an extraordinary power. It has traditionally been granted only to necessary projects that serve a public need. A bill recently passed by the legislature did indeed expand the use of eminent domain (despite the muddy arguments of a recent op-ed by John Fitzpatrick — lobbyist for NorthWestern Energy and, before that, Pegasus Gold, the company that saddled taxpayers with the mess at Zortman-Landusky). HB198 was introduced specifically to expand eminent domain because a state court had ruled that a Canadian firm building a private power line that would not serve Montanans does not have the power of eminent domain in our state. After losing in court, this company got the legislature to do its bidding, broadening the statue that defines who has the authority to use eminent domain.
House Bill 198 grants eminent domain authority to any corporation that receives a Major Facility Siting Act (MFSA) certificate. Before HB198, you would have had to prove that the project is for a public use, is necessary and is compatible with the greatest public good and least private injury. This test helped prevent eminent domain from being abused. MFSA wasn’t written to protect the rights of landowners facing condemnation by a private corporation and does not provide an adequate check for entities allowed the privilege of eminent domain. Making MFSA the threshold for granting eminent domain power is a huge change.
Northern Plains Resource Council is a grassroots conservation and family agriculture group that organizes Montana citizens to protect our water quality, family farms and ranches, and unique quality of life. Since we were formed by landowners in 1972, we have advocated for family farmers and ranchers.
We believe that no type of energy development — be it coal, oil, gas, wind or anything else — should be allowed to treat landowners unfairly or unjustly. The companies threatening eminent domain do not come to Montana to create jobs; they come to Montana to take our resources and to make a profit as quickly and as cheaply as they can.
The truth is that projects can be built by companies negotiating justly and fairly with landowners to purchase portions of their land with fair conditions and at a reasonable price. But HB198 was passed because a private company wanted to circumvent that process. This is a huge change that does not bode well for Montana, its landowners or for private property rights.