The legal wrangling over the future of Missoula’s water utility moves to the Montana Supreme Court Friday. Montana Supreme Court justices hear oral arguments in that case at the University of Montana. The city wants to take ownership by condemnation of Mountain Water Company for the legally determined price of $88 million dollars.
UM Assistant Law Professor Martha Williams says state law is very specific about the power of eminent domain.
Martha Williams: Which is the right of the state to take private property for private use. The statues are specific in that they say the municipality, the city of Missoula, may only take property that's already being used for public use when it's more necessary for this city to do that, for the public to take charge of that use, versus the private enterprise of Mountain Water here.
Edward O’Brien: This phrase "more necessary public use" has been kicked around a lot. What does that mean?
MW: Right, well I think that's the question that everybody is so interested in and that the court is specifically looking for. For example, the district court in its preliminary order for condemnation set out the reasons of why it thought there was a more necessary use here. The stability of ownership, the prioritization of public health and safety that water is a vital natural resource for local control, and it goes on. And those are just the type of findings and conclusions that the appellants, Mountain Water, Carlyle, the employees of Mountain Water, are challenging.
EO: This situation played itself out in the mid to late 80s when the Montana Supreme Court ruled against the city. What, if anything sustainable has changed?
MW: What has changed since the 1980s is an issue I think that the parties very much disagree about. Certainly the concern of moving from Mountain Water, a local company that had long held the system, and its sale to Carlyle, seems to be one reason the city used to reopen this issue, that that was the changed circumstance.
EO: Socially, has anything changed?
MW: That's a good question, I mean, I think there seems to be an appetite for it, then there are others who don't have an appetite for it. I do see more public scrutiny on water as a precious resource and the importance that water plays in Missoula. I think there is increased scrutiny on that.
EO: What options are at the court’s discretion - is that the word I'm looking for? - what can the court do here?
MW: So it could be a combination of saying yes, we're good to go; it could be, you're wrong, start over; or more likely some combination of them all. The municipalities are paying attention to this but certainly utilities and private property owners, I think all sides, are paying close attention to this.
EO: Last question: what if the justices uphold the district court ruling, what could that mean for other utilities? Could that increase the likelihood that any given city or county could call a meeting with Northwestern Energy, and say, 'you know, maybe I think we can do a better job with managing your natural gas pipelines and your transmission lines.' Do you think this can encourage other cities to do things like this more often?
MW: Well I'm always leery of the argument of opening Pandora's box or "Katie bar the door." We do have very specific eminent domain commendation statutes. So I think the crux of this case from all sides is reviewing the district court's decision, and the district court knew this was likely to be appealed. I think the judicial system will be so careful to put some framework on and make sure the determinations that come out in this case fit within Montana law and have some reasonable confine.
That’s University of Montana Assistant Law Professor Martha Williams. Williams will provide an introduction to the Mountain Water case during Friday’s oral arguments before the Montana Supreme Court. It starts at 8:30 Friday morning at the University Center Ballroom on the University of Montana campus. A ruling will not be issued Friday. That could take several weeks to several months.