THE MONTANA POWER COMPANY, A MONTANA CORPORATION, PLAINTIFF AND APPELLANT, v. LEO CREMER, JR., ET AL., DEFENDANTS AND RESPONDENTS.
No. 14672.
Supreme Court of Montana
Decided June 22, 1979.
Submitted May 4, 1979. Dissenting Opinion June 29, 1979.
277, 596 P.2d 483
Graybill, Ostrem, Warner & Crotty, Gregory Warner (argued), Great Falls, William R. Morse, Absarokee, for defendants and respondents.
Donald D. MacIntyre (argued), Helena, amicus curiae.
MR. JUSTICE DALY delivered the opinion of the Court.
This is an appeal by the Montana Power Company (MPC) from a judgment of the District Court of the Sixth Judicial District, sitting in Sweet Grass County, dismissing an eminent domain proceeding for lack of jurisdiction.
MPC brought a condemnation action to acquire a permanent easement across a strip of respondents’ land for the construction of a six-inch gas transmission pipeline which in total would extend 38.3 miles from MPC‘s pipelines near Greycliff, Montana, to its Big Coulee field located southeast of Ryegate, Montana.
At the “necessity” hearing held on October 18, 1978, respondents objected to the taking of testimony on any need for the proposed pipeline alleging that the pipeline is a “facility” under the Montana Major Facility Siting Act and therefore the Department of Natural Resources and Conservation must first determine environmental compatibility and public need for the pipeline. Testimony was taken from John Robertson, MPC‘s gas and oil de
Robertson testified that the proposed pipeline would connect MPC‘s total system of gas production, distribution and transportation facilities with its Big Coulee gas fields and the general purpose of the connection was to replenish the depleted Big Coulee reserves for Lewistown, Montana, consumption. He stated that the estimated cost for construction of the pipeline was $1,693,000, and that it would be capable of transporting approximately 8,500 million cubic feet of gas per day.
On December 28, 1978, the condemnation suit was dismissed for lack of jurisdiction. The court found as a matter of law that MPC‘s proposed pipeline was a “facility” under the Siting Act since it led “from or to” a “facility” as defined by the Siting Act,
MPC appeals from the District Court judgment dismissing the action for lack of jurisdiction and presents a question of statutory interpretation for review by this Court, viz:
Whether the MPC‘s proposed gas transmission pipeline is a “facility” as defined by the Montana Major Facility Siting Act at
The District Court found as a matter of law that MPC‘s pipeline is a facility under the Act because it led to or from a facility as defined by the Siting Act. The court designates MPC‘s “gas gathering“, “transmission and distribution pipeline system” as a “facility” to which the proposed line would connect and therefore the line becomes a facility or associated facility. We disagree.
Both parties to this litigation have agreed that the intent of the legislature can be determined from the plain meaning of the
Additionally, the Montana Department of Natural Resources and Conservation appeared by brief and argued on behalf of the statutory construction urged by appellant. The Department has not considered gas transmission lines connecting other gas transmission lines leading to or from gas wells or fields as a facility under the Act. This Court has previously held that in statutory construction problems great deference must be shown to the interpretation given to the statute by the agency or officers charged with its administration. Department of Revenue v. Puget Sound Power and Light Co. (1978), 179 Mont. 255, 587 P.2d 1282, 1286. This has more than usual import here as the dismissal below was based on the gas line being a “facility.”
The development of the case law in Montana with respect to the rules of statutory construction may be summarized in the following analysis: (1) Is the interpretation consistent with the statute as a whole? (2) Does the interpretation reflect the intent of the legislature considering the plain language of the statute? (3) Is the interpretation reasonable so as to avoid absurd results? and (4) Has an agency charged with the administration of the statute placed a construction on the statute? Dunphy v. Anaconda Co., (1978), 151 Mont. 76, 80, 438 P.2d 660, 662; Home Building & Loan Association v. Fulton (1962), 141 Mont. 113, 115, 375 P.2d 312, 313; Teamster Local # 45 v. Cascade County School Dist. # 1 (1973), 162 Mont. 277, 280, 511 P.2d 339, 341; State ex rel. Cashmore v. Anderson (1972), 160 Mont. 175, 184, 500 P.2d 921, 926-27; Puget Sound Power & Light Co., supra.
For the pipeline in question to fall within the parameters of the Siting Act, it must be a pipeline designed for or capable of transporting gas from or to a major facility. See
“[E]ach pipeline and associated facilities designed for or capable of transporting gas, water, or liquid hydrocarbon products from or to a facility located within or without this state of the size indicated in subsection (7)(a) of this section.”
The facilities indicated in the referenced subsection include facilities capable of: (1) generating 50 megawatts of electricity; (2) producing 25 million cubic feet of gas per day; (3) producing 25,000 barrels of liquid hydrocarbon products per day; (4) enriching uranium minerals; (5) utilizing, refining or converting 500,000 tons of coal per year. For the gas pipeline to be a facility under the Siting Act, the pipeline must come from or go to one of these types of facilities.
In a similar vein
Likewise, this common thread is found in
Therefore, if
As noted above, the Siting Act is clearly aimed at the “location, construction, and operation of power and energy conversion facilities.” The key phrase is “conversion facilities.” Nowhere in the Siting Act is there express authorization for the State to site the mining or gathering activities of a potential applicant, except in those cases where the actual mining activity involves the conversion of the energy form. The extraction of natural gas and the ultimate transportation of the gas from its natural state to the ultimate consumer does not involve a conversion process subject to the Siting Act. Although the gas may be sweetened, cleaned, pressurized or otherwise processed to make it suitable for burning, it is not converted to some other form by processing through any “power or energy conversion facility.”
The judgment and order of the District Court is reversed and vacated, and this matter is remanded to the trial court with instructions to proceed expeditiously with the eminent domain proceedings.
MR. CHIEF JUSTICE HASWELL and JUSTICE HARRISON concur.
MR. JUSTICE SHEEHY deeming himself disqualified, did not participate.
MR. JUSTICE SHEA dissents:
I dissent because this natural gas pipeline plainly and properly comes within the definition of a “facility” under the Montana Major Facility Siting Act.
“‘Facility’ means:
“. . .
“(c) each pipeline and associated facilities designed for, or capable of, transporting gas, water, or liquid hydrocarbon products
from or to a facility located within or without this state of the size indicated in subsection (3)(a) of this section; . . .”
“‘Facility’ means:
“(a) each plant, unit, or other facility and associated facilities, except for oil and gas refineries,
“. . .
“(ii) designed for, or capable of, producing twenty-five million (25,000,000) cubic feet of gas per day or more, or any addition thereto having an estimated cost in excess of two hundred fifty thousand dollars ($250,000), or . . .”
The question, then, is whether the pipeline to or from which the pipeline would lead is designed for or capable of “producing” 25 million cubic feet of gas per day or more. The Greycliff connection is tied in with MPC‘s total gas production system which is capable of producing approximately 290,000 million cubic feet of gas per day. Therefore, the proposed pipeline leads from or to a facility capable of producing in excess of 25 million cubic feet of gas per day.
Preliminarily, the majority opinion noted that
The opinion regards the fact that the Department has not considered gas lines connecting other gas lines to be “facilities” as deserving of “great deference“. Dept. of Rev. v. Puget Sound Power & Light Co., supra.
“This Court has on several occasions considered the interpretative regulations by administrative agencies charged with the duty of administering and enforcing a legislative act, for an understanding of the provisions that must be carried out. (Cites omitted).
“While such administrative interpretations are not binding on the courts, they are entitled to respectful consideration.” (Emphasis added.)
Here, no interpretive rulings on the Department‘s treatment of pipeline-to-pipeline facilities exist. Surely, the Department‘s inaction cannot be viewed as the legal equivalent to the promulgation of an interpretive ruling.
The opinion then declares that Montana‘s rules of statutory construction may be summarized in a four-part analysis. This analysis neglects to mention the fundamental rule that legislative intent must first be determined from the plain meaning of the words used.
Turning to the legislative policy statement in
To bolster its decision the Court attempts to trace a “common thread linking the defined facilities together” and determines that the common denominator is the conversion process necessary to produce the other enumerated energy forms. It appears the Court went too far in its search for commonality. For example, in discussing the definition of liquid hydrocarbon producing facilities,
If there is a “common thread” linking the facilities subject to the siting requirements of the Act, it is simply the potential environmental impact posed by each of the enumerated facilities.
The District Court ruled correctly that the proposed gas pipeline is a “facility” and therefore subject to the requirements of the Major Facility Siting Act. Under the Act, the utility cannot conduct eminent domain proceedings until it has obtained a certificate of environmental compatibility and public need from the Department of Natural Resources and Conservation. Therefore, I would affirm the District Court order dismissing eminent domain proceedings.