Comments on: Reichner Seeks Third Term in House
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By Roark on 05-15-12 @ 4:57 pm
Mutch for HD-9!
By TallTree on 05-15-12 @ 11:33 pm
In the last legislature Scott Reichner voted in favor of the eminent domain bill (HB 198) thatallows U.S. and foreign corporations to take your property for their use. I don’t think we need
someone in the legislature who doesn’t protect a person’s property.
http://laws.leg.mt.gov/laws11/LAW0211W$BLAC.VoteTabulation?P_VOTE_SEQ=H335
By Marshal Cogburn on 05-16-12 @ 10:02 am
Come on Roark, a vote for Mutch is a vote for very little. An empty promise of something called more ‘liberty’? Less ‘RINOism’? These are the empty tag phrases of disenfranchised zealots hoping
to steal the Republican brand.
Tall Tree’s characterization of HB198 shows us all that we should each spend a little more time
reading the actual legislation and a lot less time listening to the hype and noise. The concept of
eminent domain is defined in the US Constitution by the fifth amendment and in the Montana
Constitution in Article II, Section 29. HB198 did not alter either constitution and it did not change
Title 70, Chapter 30 of the Montana Code Annotated. This is the section that requires due process.
All HB198 did was clarify that a utility had the right to acquire property, in exchange for just
compensation, after all other recourses had been exhausted.
Reichner out performed all other Flathead Valley Representatives and if any of them have earned a
return ticket, it is Scott.
By Gabby Johnson on 05-16-12 @ 2:43 pm
The principle of private property rights is easily thrown overboard by the GOP when it’s aforeign oil company that wants your land. As evidence I give you the Keystone XL pipeline.
By Marshal Cogburn on 05-16-12 @ 3:18 pm
Gabby, HB198 did not have anything to do with the Keystone Pipeline project. Keystone is a Federal project and, hence, the Fifth Amendment to the US Constitution provides all of the legal
foundation necessary for its construction. Neither the GOP, nor any other political faction, changed
or altered a single item to facilitate the utilization of condemnation. Every thing that was required
has existed since the ratification of the Bill of Rights.
By TallTree on 05-16-12 @ 11:36 pm
Re: Marshal Cogburn
You said: “All HB198 did was clarify that a utility had the right to acquire property, in
exchange for just
compensation, after all other recourses had been exhausted. “
Clarify? A judge ruled a utility did not have the eminent domain ability. There is no confusion
there. HB 198 gave utilities the power.
That’s the problem. A utility can, and often is, a private company. I am uncomfortable with a
private company having an eminent domain ability. While eminent domain can be a necessary
tool I prefer its use to be limited to the state or a local government. Also I prefer the
eminent domain tool be restricted from being used by a foreign company as what happened, or was
threatened, after HB 198 became law.
If a project is so important the utility should have no problem getting the state or local
government behind it and for the state or local government to use its eminent domain power on
the behalf of the project if the project qualifies as a public use. If the state or local
government is not behind a project, then why should a private American or foreign utility have
the the ability to use the eminent domain process to overrule the government?
There was a competing bill in the last legislature that better protected a landowner’s property
rights and Scott Reichner should have fought for that bill instead voting for this giveaway.
With his vote Reichner lost my trust that he would stand up for a citizen’s property rights over
a private American or foreign company’s wishes.
By RussCrowder on 05-17-12 @ 7:42 am
Scott like most the Republican’s in the last legislature has a good record on property rights issues. Unfortunately, he and many others got taken in by Schweitzer (this bill was his baby), and I am
sure when the HB 198 fiasco was over, Schweitzer and his Democrats were laughing all the way to
the bank. A lot of good conservative Republican legislators were played like a fiddle by Schweitzer
on this Bill, but like Scott Reichner, they are not deserving of losing their job over one mistake.
Hopefully they will all have learned a valuable lesson: You can’t trust a Democrat !
By inthemiddle on 05-17-12 @ 6:12 pm
One of the three major tenets of the GOP is protection of property rights. Russ how can you defend this. They betrayed their party. How can you trust them to do anything right after that, next they
will vote to raise taxes on the wealthy and increase the size of government assistant programs for
the poor, disabled and elderly. Vote em out.
By Marshal Cogburn on 05-17-12 @ 8:53 pm
Folks, so far all I see are the sound bites perpetrated by those opposed to HB 198. Please take a minute to read the section of Montana law found at the following link:
http://data.opi.mt.gov/bills/mca/70/30/70-30-102.htm
Observe item 37 in this list of enumerated uses. This usage extisted in code before HB 198. It was
not created in the last legislative session. What the district court judge ruled was that Montana’s
major facility siting act did not constitute a determination of ‘public use’. This ruling was made
contrary to previous case law and historical precedent. Ironically, this judge is now running for the
Montana Supreme Court on a property rights ticket. Hmmm?
The public versus private ownership argument is moot. There aren’t any state owned utilities in
Montana. Likewise, foreign versus domestic is also mostly irrelevant. Should we require that any
publicly traded corporation have no foreign stake holders in order to exercise this power?
The doctrine of eminent domain is an unpopular and an unfriendly beast. I do not think that you will
find a legislator that feels otherwise. However, Montana’s transmission and pipeline capacity
severely lags our state’s potential for development. If we expect to move forward in this century,
especially as an energy economy, we will be faced with this very same issue at every turn.
Balance will be required to ensure that the controls we put on the doctrine will protect landowner
rights and still allow for reasonable development. HB 198 did not upset this balance because it did
nothing to interfere with either the due process requirement or the just compensation clause.
By TallTree on 05-18-12 @ 12:27 am
“This ruling was made contrary to previous case law and historical precedent.”
If so, the ruling could have been overturned by an appeal to the MT Supreme Court and there
would be no need for HB 198.
“Ironically, this judge is now running for the Montana Supreme Court on a property rights ticket.”
Ironically? It sounds like the judge is consistent in his beliefs. I think it would more
likely be ironic if the judge dissociated himself from a property rights ticket after his ruling.
“The public versus private ownership argument is moot.”
I believe most people could see the difference in a private utility like Northwestern Energy and
the member owned Flathead Electric Coop, even if it is not state owned. And are you saying
there never could be a state owned utility or municipally owned utility? While a state owned
utility is unlikely and not desired, a municipal utility is more likely.
Instead of the eminent domain authority residing in a utility - public or private - perhaps
something more on the lines of a state agency like the highway department where the eminent
domain power would reside. Just as the highway dept can use the eminent domain power to obtain
property required for a public use project, so too could a state agency that approves a
transmission line route.
Now that utilities have eminent domain power, what’s to stop one from using that power to take
part of my property to service a development being built next to mine?
“Should we require that any publicly traded corporation have no foreign stake holders in order
to exercise this power? “
There is a difference between a minority foreign stake holder and a company with a major foreign
ownership. Also, does HB 198 limit the utility with eminent domain power to only a publicly
traded company? Completely private companies are excluded?
Again, if a project is so worthy and necessary what is wrong with the utility from working with
the state or local governments to have the governmental body use their eminent domain power if
necessary?
From your last paragraph I get the impression that you feel the ends justifies the means, which
is a valid opinion but one I don’t share in this case.
By TallTree on 05-18-12 @ 12:40 am
Russ, this is not a little mistake and I am surprised you are minimizing it based on yourcomments when HB 198 was being debated, and on your past comments on the importance of property
rights. Don’t forget there was a competing bill Reichner could have supported instead of
compromising the Republican party’s principles. And if there was no property rights bill out of
the legislature it was not the end of the world for people on either side of the issue. There
was the appeal to the MT Supreme Court, which would have been successful according to Marshal
Cogburn’s logic that the district judge’s decision was “made contrary to previous case law and
historical precedent”. If as you say Reichner was so easily played like a fiddle by Schweitzer
and his Democrats on this issue, it calls into question his competency. If I remember right, HB
198 was supported more by the Republicans than the Democrats. And with both Houses controlled
by the Republicans the bill should have been more property rights friendly.
By Marshal Cogburn on 05-18-12 @ 8:41 am
Good morning TallTree. In response to your highway analogy, HB 198 does not, and did not, directly grant eminent domain authority to a utility. This power still resides exclusively with
governments. The authority to employ condemnation is transferred from a government to an entity
only after the public use determination has been thoroughly vetted. Furthermore, the lifespan of the
transfer is only through completion of the project. In essence, the mechanism you desire already
exists.
As for the appeal to the Montana Supreme Court, this was indeed done and the appeal was
working its way through the system (albeit, very slowly). The 1986 case of Montana Power v
Fondren clearly established the legal background that the judge chose to ignore.
The ‘landowner’ friendly bill, you continue to speak of, was killed by its own sponsor on the floor of
the House of Representatives. It was so egregiously unbalanced that it would have had the effect of
eliminating condemnation as a tool for building linear projects. This bill still allowed for the concept
of eminent domain but it set the bar so high that it would have been nearly impossible to employ.
This bill represented substantive change to existing law; HB 198 did not!
Now to the Democrats. The Dems tried to barter their votes for HB 198 for Republican votes on a
statewide pay plan. When Republicans refused this deal, the Dems voted in a block against HB
198. This left the heavy lifting to the Republican dominated legislature. The Democrats were not
displaying an altruistic support of Montana landowners, rather, they were backing the public
employee unions with their artfully contrived position.
And finally, I will repeat myself by stating the following: a private entity does not hold the power of
condemnation outright. This power resides with governments. A private entity may receive the right
to employ condemnation only after a positive determination of public use has been completed. This
was the case before and it is still the case after HB 198. There is a subtle, but powerful distinction,
between what you are voicing and the reality of Montana law. Public and/or private entities were not
supplied with a magic wand with which to abuse landowners. They were simply affirmed with a
guarantee that a determination of public use would allow them, if necessary, access to
condemnation proceedings.
By DaisyCutter on 05-21-12 @ 12:16 pm
Reichner is about the only one who got anything accomplished in the last session. His efforts on Workers Comp alone should send him back to Helena without question. Scott Reichner isn’t perfect
(who among us is?), but he’s solid and he’s good for the Flathead.
The views expressed in the comments section do not reflect those of the Beacon.