No. 86-373
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
THE MONTANA POWER COMPANY,
Plaintiff-Respondent,
-vs-
ELLANOR FONDREN and SHARON COCHRAN,
Defendants, Counter-Claimants
and Third-Party Complainants-Appellants.
-vs-
DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION,
Third-Party Defendant-Respondent.
No. 86-374
THE MONTANA POWER COMPANY,
Plaintiff-Respondent,
-vs-
LILLIAN M. KEZER; FARMERS HOME ADMINISTRATION;
and PARK COUNTY, A POLITICAL SUBDIVISION OF THE
STATE OF MONTANA,
Defendants-Appellants.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Peter Rapkoch, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Pnuchel & McGregor; Karl Knuchel, Jon Hesse argued,
Livingston, Montana
Moore, Rice, OtConnell & Refling; Robert J. Rice,
Bozeman, Montana
For Respondents:
T /I
Corette, Smith, Pohlman & Allen; Gregory C. Black +- 7?b+ik3q
argued, Butte, Montana 77'~i~bd_pr~.'.
Donald D. MacIntyre argued, Dpet. Natural Resources,
Helena, Montana
Robert J. Brooks, Asst. U.S. P~tty. W E nKiek&knn
,
Butte, Montana
(Continued, next page)
Submitted: February 10, 1987
Decided: May 12, 1987
Filed: MAY I 2 1987
w
i
*#
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Landowners Fondren, Cochran and Kezer appeal the order
of the District Court, Sixth Judicial District, Park County,
which found the District Court had no jurisdiction to
determine the existence of public necessity with respect to a
proposed electric transmission line under the provisions of
the Utility Siting Act of 1973 or the Montana Major Facility
Siting Act of 1975, Title 75, Chapter 20, MCA. We affirm for
the reasons set forth below.
In June, 1974, Montana Power Company (MPC) filed an
application for certification of environmental compatibility
and public need under the Montana Utility Siting Act of 1973
(now the Major Facility Siting Act) for the purpose of
gaining approval for construction of a transmission facility
known as the Clyde Park - Dillon 161 kv transmission line.
In October, 1977, the Board of Natural Resources and
Conservation (Board) issued a certificate of environmental
compatibility and public need, and issued findings of fact,
opinion, decision, order and recommendations. The selection
of the final centerline for the two mile wide corridor was
made by the Board in October, 1985.
Landowners Fondren and Cochran purchased property
southwest of Livingston, Montana, in 1980. The property is
located in the "Canyon Mountain" area of the Clyde Park to
Emigrant segment of the transmission line. When Fondren and
Cochran purchased the real estate, there was nothing of
record in the office of the county clerk and recorder to
indicate that the power line corridor approved by the Board
would pass through or include the property. They first
learned the power line might be routed through their property
in late 1981. After the Board approved the final centerline
location by order dated October 11, 1985, MPC sent letters to
landowners Fondren, Cochran, and Kezer offering to purchase
right-of-way easements and to pay an additional amount in
advance for damages to crops and vegetation. The landowners
refused the offers.
In February, 1986, MPC filed an action for condemnation
of the landowners' properties pursuant to the Montana Eminent
Domain Act. The cases were consolidated in May, 1986. MPC
also filed motions to be put in possession and for a
preliminary condemnation order. On May 30, 1986, the
District Court began hearing testimony in the condemnation
action. Hearings were also held June 12. Both MPC and the
landowners submitted briefs on the issue of the District
Court's jurisdiction under the Major Facility Siting Act,
specifically 5 75-20-407, MCA. On June 26, 1986, the
District Court issued an order stating it had no jurisdiction
to determine the existence of public necessity under the
Major Facility Siting Act. The District Court issued a
preliminary condemnation order in favor of MPC on July 7,
1986. That order has been stayed pending this appeal.
The landowners raise nine issues on appeal:
1. Did the District Court err by ruling that it had no
jurisdiction to determine the existence of "necessity?"
2. Did the District Court err in finding that
respondent MPC has established by a preponderance of the
evidence those facts which are a prerequisite to condemnation
under 5 70-30-111, MCA?
3. Does the District Court have jurisdiction to
d.etermine what constitutes "least private injury" in an
action for condemnation pursuant to the Montana Eminent
Domain Act, Title 70, Chapter 30, MCA?
4. Does the District Court have jurisdiction to
determine whether MPC has violated the findings of fact,
opinion, decision, order and recommendation of the Board of
Natural Resources?
5. Does the District Court have jurisdiction to
determine whether the interests sought by MPC are the
"minimum necessary interests" pursuant to S 70-30-203 (6),
MCA?
6. Whether MPC is restricted to those remedies provided
by the Major Facility Siting Act, SS 75-20-404, -405, or
-408, MCA, thus precluding an action in eminent domain under
Title 70, Chapter 30, MCA?
7. Has the District Court violated the landowners' due
process rights under the Montana Constitution by vacating the
condemnation hearings?
8. Was judicial review a remedy available to the
landowners?
9. Does the Montana Major Facility Siting Act violate
the landowners' due process rights where the Act provides no
mechanism for recording and giving notice to successor
landowners that a power line corridor has been approved
across their property, and where eight and a half years have
elapsed between the time of corridor approval and the choice
of a centerline?
MPC contends there is only one issue on appeal:
Whether the District Court was correct in ruling it
did not have jurisdiction to determine public
necessity because that determination was already
properly made by the Board of Natural Resources
pursuant to the Major Facility Siting Act?
As a preliminary matter, MPC argues that this Court
should not hear issues relating to the preliminary
condemnation order, since the landowners never specifically
filed a notice of appeal as to that order. The procedural
sequence of events was as follows:
1. June 26, 1986: District Court issued its order
declining to take jurisdiction over the issue of
public necessity.
2. July 3, 1986: Landowners filed their notice of
appeal of the June 26 order.
3. July 7, 1986: The preliminary condemnation
order was filed in District Court (although signed
by Judge Rapkoch July 3).
The filing of a notice of appeal is jurisdictional, and
the failure to timely file is a fatal defect altered only on
the most extenuating circumstances. Leitheiser v. Montana
State Prison (1973), 161 Mont. 343, 346, 505 P.2d 1203, 1205;
Payne v. Mountain States Tel. & Tel. Co. (1963), 142 Mont.
406, 408, 385 P.2d 100, 102. While Rule 3, M.R.App.Civ.P.,
allows a suspension of the rules in the interest of
expediting a decision before this Court, the late filing of a
notice of appeal is one exception to the equitable reach of
Rule 3. - Rules 21 (b) and 5, M.R.App.Civ.P. ; Zell v. Zell
See
(1977), 172 Mont. 496, 565 P.2d 311.
We therefore hold that appellants' issues 2 and 3
relating to the preliminary condemnation order of July 7,
1986 are not properly before us, since appellants failed to
timely file a notice of appeal to that order under Rule 5,
M.R.App.Civ.P.
The other issues raised by appellants essentially fall
into two categories: issues 1, 4, 5 and 6 present questions
concerning the jurisdiction of the District Court and issues
7-9 raise questions of due process under the Montana
Constitution. Accordingly, we will treat the issues in that
order.
JURISDICTION
The central jurisdictional issue is whether the District
Court had the jurisdiction under S 70-30-111, MCA, to
determine if the transmission line was a public necessity.
The court ruled it had no jurisdiction to determine necessity
since that determination had already been made by the Board
of Natural Resources pursuant to the Major Facility Siting
Act. The court stated that under SS 75-20-301, -302, and
-303, MCA, the Board was charged with determining the
necessity of the facility before it could issue a certificate
of environmental compatability and public need, such a
certificate being required before the facility could be
constructed. The court reasoned that the combination of
those statutes and S 75-20-103, MCA, (providing that the
Siting Act is to supersede all other laws) and S 75-20-407,
MCA, (limiting the jurisdiction of courts to hear issues
which would stop or delay construction of a facility)
restrained it from determining the issue of necessity. The
court thereafter issued a preliminary order of condemnation
in favor of MPC.
A general rule of statutory construction is that when
several statutes may apply to a given situation, the
construction adopted should be one which will harmonize the
several statutes and, if possible, give effect to all.
Section 1-2-101, MCA; Schuman v. Bestrom (Mont. 1985), 693
P.2d 536, 538, 42 St.Rep. 54, 57. In construing statutes,
the intention of the legislature should be followed, if
possible. Section 1-2-102, MCA. Our task here is to
reconcile, if possible, the provisions of the Siting Act and
the Montana Eminent Domain Act.
In issue 6, the landowners contend that actions under
the Siting Act and the Eminent Domain Act are separate and
exclusive, and that MPC, having elected to file an action in
eminent domain, must follow the procedure set forth under the
Eminent Domain Act. MPC argues that portions of the Eminent
Domain Act have been superseded by the Siting Act, and it
need follow eminent domain procedure only to the extent it
does not conflict with the Siting Act.
The Siting Act and the Eminent Domain Act were enacted
at different times, for different purposes. The eminent
domain laws were first enacted in 1877 to authorize the
taking of private property for public use. Section
70-30-101, MCA. The Siting Act, first enacted in 1973, was
essentially an environmental law whose policy was to maintain
and improve the environment while allowing controlled
development of large energy facilities. Section 75-20-102,
MCA. In terms of location and construction of these
facilities, the Siting Act transferred the decision of where
to route transmission lines from the utilities to the Board
of Natural Resources and Conservation. Section 75-20-105,
MCA.
However, while the Siting Act provides the procedure for
obtaining approval to construct a major facility, it does not
provide a mechanism for the acquisition of specific tracts of
property on which to build the facility. The property must
be obtained through condemnation proceedings under the laws
of eminent domain. When the right of eminent domain is
invoked, the provisions of the law granting the right must be
complied with. Madison Co. v. Elford (Mont. 1983), 661 P.2d
1266, 1268, 40 St.Rep. 457, 460; Housing Authority v. Bjork
(1940), 109 Mont. 552, 556, 98 P. 2d 324, 326. MPC does not,
as the landowners contend in issue 6, face an election of
remedies in having to choose the procedure of either the
Siting Act or the Eminent Domain Act. Rather, MPC must
follow both laws in order first to gain approval for a
transmission line and second to acquire the property upon
which to build the facility.
Before private property can be taken for a public use, a
court must find that the plaintiff (condemnor) has shown the
following facts by a preponderance of the evidence:
(1) that the use to which the property is to be
applied is a use authorized by law;
(2) that the taking is necessary to such use; and
(3) that an effort to obtain the property sought
to be condemned was made by submission of a written
offer and that such offer was rejected.
Section 70-30-111, MCA.
If the court finds and concludes from the evidence
presented that the plaintiff has met the burden of proof
under § 70-30-111, it must enter a preliminary condemnation
order. Section 70-30-206 (2), MCA.
The primary disagreement between MPC and the landowners
is over the interpretation of S 70-30-111(2). MPC contends
the District Court has no jurisdiction to determine whether
or not the taking of appellants' property is necessary to the
public use (here, construction of a 161 kv transmission
line), since the necessity for the transmission line and its
location had already been determined by the Board in
administrative proceedings under the Siting Act. MPC argues
that 5 75-20-407, which limits the jurisdiction of courts to
hear controversies involving major facilities, was enacted to
foreclose all court action which woul-d delay construction of
the certified facility. The landowners, on the other hand,
contend strict compliance with eminent domain procedure is
required, and that therefore they are entitled to be heard in
District Court on the question of the necessity of taking
their particular tract of property.
Before turning to the due process issue of whether
land-owners have been given an opportunity to be heard, we
will look at the specific question of whether S S 75-20-103
and 75-20-407 affect the jurisdiction of the District Court
to hear evidence on the necessity of taking a particular
tract of property under the Siting Act. Other jurisdictions
have had the opportunity to examine this question as it
rela.tes to location and construction of power lines across
private property. While those jurisdictions do not have the
equivalent of a Major Facility Siting Act, they do have
specific statutory schemes which provide for location of
electric transmission lines. The general rule is that where
the legislature has delegated the power of determining the
necessity of exercising the power of eminent domain to a
private corporation or administrative agency, the
corporation's or agency's determination of necessity is a
political decision which is not subject to judicial review.
In Re Bangor Hydro-Electric Co. (Me. 19741, 314 A.2d 800,
803; Otter Tail Power Co. v. Malme (N.D. 19581, 92 N.W.2d
514, 521; United States v. 277.97 Acres of Land (S.D. ~ a l .
L953), 112 F.Supp. 159, 162; see generally Annot., 19
A.L.R.4th S 8 at 1032 (1983). The corporation determining
the location of the power line route is entitled to much
latitude in its determination. Otter Tail Power - 92
Co.,
N.W.2d at 521. Given the expertise and detailed knowledge of
considerations involved in choosing a location for the power
line, the route chosen by the corporation is given great
weight under the law of eminent domain. Montana Power Co. v.
Rokma (Mont. 1969) , 153 Mont. 390, 399, 457 P.2d 769, 775.
The determination reached by the corporation or agency will
not be overturned absent proof of arbitrariness by clear and
convincing evidence. - - - Otter Tail Power -
Id.; see also Co., 92
N.W.2d at 521; - - Bangor Hydro-Electric Co., 314 A.2d at
In Re
804; Northern States Power Co. v. Effertz (N.D. 1959), 94
N.W.2d 288, 291.
Each of the above cited cases, while granting that the
corporation has been legislatively empowered with the initial
determination of location for a power line, presupposes that
the landowner has the opportunity to be heard and to present
evidence of abuse of discretion or bad faith on the part of
the condemnor. By similar analogy, we find that our
legislature has empowered the Board of Natural Resources to
make the determination as to the necessity of a facility such
as the 161 kv transmission line at issue in this case. Under
the statutory scheme of the Siting Act, the Board must make
findings as to the environmental compatability of (including
land use patterns) a.nd need for the facility before it can
issue a certificate to MPC. Sections 75-20-301 (2),
75-20-503, MCA. At the time the certificate is issued, an
aggrieved party such as the landowners in this action may
seek judicial review of the issuance of the certificate,
alleging error in the location of the facility or in the
procedure by which the choice was made. Section 75-20-406,
MCA. The standards of judicial review are the same as those
for a contested case under the Montana Administrative
Procedure Act (MAPA). Sections 75-20-406 (2) and 2-4-704,
MCA. Further, if some aspect of the Siting Act or certain
conditions of the certificate are not being complied with by
the agency or MPC, any resident of this state may bring an
action in mandamus before the District Court of the First
Judicial District, County of Lewis and Clark. Section
75-20-404, MCA.
The foregoing administrative procedure, subject to
judicial review, controls the general placement of the
transmission line under the Siting Act. After the
certificate is issued and has survived any challenges under
judicial review, MPC has the right to construct its power
line within a specific two mile wide corridor. The next step
is the approval of a final centerline by the Board. When the
final centerline is approved, MPC then may begin purchasing
the specific property by means of negotiated settlement or
condemnation.
If MPC proceeds thereafter to acquire an interest in
property in a condemnation action, it must file a complaint
alleging the facts necessary to be found under 5 70-30-111,
i.e., that the taking of a specific tract of property is
necessary for construction of its transmission line. The
question then faced by the District Court is whether it is
empowered to determine that the final centerline location
adopted by the Board is necessary to the public use
authorized by law. MPC's argument, adopted by the District
Court, is that the court may not even hear evidence on the
question of necessity. Its argument is based on the
following three sections of the Siting Act:
75-20-103. Chapter supersedes other - -or rules.
laws
This chapter supersedes other laws or regulations
except as provided in 75-20-401 [not applicable
here]. If any provision of this chapter is in
conflict with any other law of this state or any
rule promulgated thereunder, this chapter shall
govern and control and the other law or rule shall
be deemed superseded for the purpose of this
chapter. Amendments to this chapter shall have the
same effect.
75-20-407. Jurisdiction - courts restricted.
of
Except as expressly set forth in 75-20-401,
75-20-406, and 75-20-408 [not applicable here] , no
court of this state has jurisdiction to hear or
determine any issue, case, or controversy
concerning any matter which was or could have been
determined in a proceeding before the board under
this chapter or to stop or delay the construction,
operation, or maintenance of a facility, except to
enforce compliance with this chapter or the
provisions of a certificate issued hereunder
pursuant to 75-20-404 and 75-20-405 or 75-20-408.
75-20-205. Centerline location.
(2) The final centerline location must be
determined in a noncontested case proceeding before
the board after the submission of a centerline
location report by the department [of natural
resources and conservation].
A review of the legislative history of § 75-20-205 (2),
MCA, indicates the issue of judicial review of final
centerline location was considered. Minutes of the meeting,
Senate Natural Resources Committee, Montana State Senate,
Consideration of HB 750 (March 25 and 28, 1985).
Representatives of environmental groups proposed an amendment
which would have required the final centerline location to be
determined in a contested case proceeding. This would have
triggered the judicial review section of MAPA, §§ 2-4-701
through -711. Both MPC and the Department of Natural
Resources and Conservation (DNRC) opposed the amendment.
Larry Fasbender, director of DNRC, argued that changing
wn~nc~ntested case" to "contested case" would indicate the
legislature preferred a contested case hearing. The motion
to amend the language was withdrawn, and HB 750 was passed as
it now reads in § 75-20-205.
The foregoing indicates that the legislature did not
intend the final centerline determination by the Board to be
subject to judicial review. In other words, once the
specific route of the transmission line has been set by the
Board, no court has jurisdiction to hear challenges to the
location of the route. We therefore hold that by enacting §§
75-20-205 (2) and 75-20-407, MCA, the legislature has limited
the court's jurisdiction in eminent domain cases to hear
challenges to the necessity of taking private property when
such property is taken in compliance with the Montana Major
Facility Siting Act.
By this holding, we do not intend to give the condemnor
free rein in complying with the laws of eminent domain. In
the complaint, the condemnor must still allege the facts
necessary to be found in $ 70-30-111, MCA, as well as the
other requirements of 70-30-203, MCA. However, the
preponderance of the evidence on the 5 70-30-111 findings
which must be proven to the court before a preliminary
condemnation order is issued is satisfied by appending to the
complaint the Board's certificate of environmental-
compatability and public need and. the Board's findings of
fact, opinion, decision, order and recommendations.
We further note that a landowner is not without judicial
remedy when there has been an abuse of discretion on the part
of the Board, the DNRC, or the condemnor. In addition to
challenges of abuse of discretion brought after the
certificate has initially been granted, 75-20-406, a
landowner may challenge the lack of enforcement of conditions
of the certificate under S 75-20-404. In this case, the
certificate was issued to MPC on the condition that the final
centerline would be located in cooperation with individual
landowners over whose lands the transmission line would pass.
Another condition of the certificate was that the selection
of the final centerline would, as far as possible, avoid
skylining and crossing irrigated or potentially irrigable
lands except on property boundaries. Thus if the landowners
felt these conditions were being breached, their proper
remedy lies in a mandamus action under 5 75-20-404.
DUE PROCESS
In issues 7 and 9, the landowners raise questions of due
process under the Montana Constitution, Art. 11, 5 17. MPC
argues that constitutional issues may not be raised for the
first time on appeal. However, this rule is subject to the
exception that issues raised for the first time will be heard
when they relate to the fundamental rights of the parties.
Halldorson v. Halldorson (1977), 175 Mont. 170, 173, 573 P.2d
169, 171. We find that the taking of private property for
public use is a fundamental right under our Constitution, and
we will therefore consider the due process issues raised by
the landowners.
The landowners argue that their right to an opportunity
to be heard has been violated by the District Court, in its
refusal to hear evidence from them on the issue of necessity,
and by the Siting Act, by its failure to require recording
and notice of the power line corridor.
Due process does not require notice and hearing at
any particular stage of an administrative
proceeding leading to a deprivation ... but only
"at a meaningful time and in a meaningful manner."
Auclair v. Vermont Elec. Power Co., Inc. (Vt. 1974), 329 A.2d
641, 645 (citing Armstrong v. Manzo (1965), 380 U.S. 545,
552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62, 66).
This Court has stated:
[Due process] requires an orderly proceeding
adapted to the nature of the case and in accordance
with law, in which the person has an opportunity
before the taking to be heard, and to defend,
protect and enforce his rights. Before the
property of a person can be taken by another and
converted to his own use, a hearing or opportunity
to be heard is absolutely necessary.
Sorensen v. Jacobson (1951), 125 Mont. 148, 154-155, 232 P.2d
332, 336. The question is at which point the individual has
the right to be heard, so that the hearing is conducted at "a
meaningful time and in a meaningful manner." As we stated in
Sorensen, the lawful procedure by which a citizen is deprived
of property is related to the nature of the case and the
applicable law. Id.
- The law in this case, as previously
discussed, involves both the Siting Act and the Eminent
Domain Act. We must scrutinize what happened here to
determine whether the landowners had an adequate opportunity
for notice and hearing prior to the taking of their property.
In this instance the Board granted MPC's certificate of
environmental compatability and public need subject to the
following conditions:
C. The final location of the centerline of the
right-of-way of the transmission line within the
approved corridor is subject to approval by the
board. The selection of the final centerline
location shall, as far as possible, avoid
skylining, will avoid closely paralleling main
highways, will avoid crossing irrigation or
potential [sic] irrigated lands except on property
boundaries, will cross roads and other streams
directly rather than obliquely and will otherwise
be so designed and constructed including the
painting green of poles in forested areas and the
minimizing of clear cutting so as to reduce to the
fullest extent possible the visual impact of the
lines.
D. The final proposed location of the centerline
of the transmission facility shall be located in
cooperation with and consultation with the
applicant [MPC], the Department of Natural
Resources and Conservation and the individual
landowners whose lands the said transmission
facility passes over, through and across so as to
mitigate the effects of said transmission
facilities on the individual landowner. When the
applicant submits the final proposed location of
the centerline for the final approval of this
board, they [sic] shall include information
substantiating compliance with this related
condition.
A review of the record indicates letters were sent to
the appellant landowners on at least three separate occasions
notifying them of public meetings to gather landowner comment
on the proposed centerline location. On-site inspections and
discussion of the proposed centerline location and
alternative routes were conducted with the landowners by DNRC
and MPC in October, 1984, May, 1985, and July, 1985. A
detailed report to the Board was prepared by DNRC evaluating
the alternative centerlines for the Canyon Mountain segment
of the Clyde Park - Emigrant 161 kv transmission line. The
report discussed the landowners' concerns over the impact of
the transmission line on their property, compared the various
alternative routes, and explained the reasons for choosing
the preferred alternative.
We believe that the procedure outlined above provided
adequate opportunity for the landowners to be heard on the
subject of where the proposed facility was to be located on
their property. Further, violations of the conditions of the
certificate may be considered at any time by the District
Court. Section 75-20-404, MCA. We therefore hold that the
procedure required by the Montana Major Facility Siting Act
meets the requirements of due process under the Montana
Constitution. We also hold that the District Court did not
violate the landowners' due process rights, in light of our
holding limiting a district court's jurisdiction to determine
public necessity under the Siting Act.
Landowners Fondren and Cochran argue that they
personally never received notice of the public meetings and
notice and comment period involving the initial decision to
construct the line since they did not purchase their property
until 1980, three years after MPC's certificate had been
issued. While Fondren and Cochran did not have the
opportunity to seek judicial review of the Board's decision
to grant the certificate for the corridor, their
predecessor-in-interest did. Further, Fondren and Cochran
were and are in a position to challenge any violations of the
conditions of the certificate. One of the conditions was
that the selection of the final centerline location be in
consultation and cooperation with the affected landowners.
The record discloses that Fondren and Cochran were consulted
with on at least three separate occasions. If these
landowners felt such consultation was ineffective or
insufficient, they had a remedy in mandamus under §
75-20-404.
A final issue we consider is the landowners' issue no.
5. They claim that since § 70-30-203(6), MCA, requires a
complaint in eminent domain proceedings to contain a
statement "that the interest sought is the minimum necessary
interest" to be taken, and such a statement does not appear
in MPC1s complaint, that therefore the action of the District
Court here in determining it had no jurisdiction means it
entered a preliminary order of condemnation without finding
whether the taking was "the minimum necessary interest. "
Landowners contend such a finding is a necessary part of
a district court's jurisdiction in condemnation cases and
must first be found by this District Court before a
preliminary order of condemnation can be entered.
In a case arising under the Major Facility Siting Act
however, the findings of the Board necessary for the issuance
of a certificate are found in S 75-20-301, MCA. "Minimum
necessary interest" in land to be taken by condemnation is
not one of the criteria. Instead. the Siting Act focuses on
the "minimum adverse environmental impact" and that the
facility "will serve the public interest, convenience and
necessity." Section 75-20-301 (2)(c), (g), MCA. We have set
forth earlier in this Opinion the provisions of S 75-20-407,
MCA, which puts great strictures on the power of courts to
determine any "issue, case, or controversy concerning a.ny
matter" determined by the Board in issuing the certificate.
The D i s t r i c t Court under § 75-20-407 h a s no j u r i s d - i c t i o n t o
d e t e r m i n e "minimum n e c e s s a r y i n t e r e s t " i n t h i s c a s e i f such
a n i s s u e c o u l d have been d e t e r m i n e d i n t h e p r o c e e d i n g s b e f o r e
t h e Board. W e f i n d no w e i g h t i n t h i s i s s u e .
The judgment o f t h e D i s t r i c t C o u r t i s a f f i r m e d , and t h e
c a u s e i s remanded f o r f u r t h e r p r o c e e d i n g s .
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