No. 86-373 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

THE MONTANA POWER COMPANY, 

Plaintiff-Respondent, 

-vsELLANOR FONDREN and SHARON COCHRAN, 

Defendants, Counter-Claimants 

and Third-Party Complainants-Appellants. 

-vsDEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, 

Third-Party Defendant-Respondent. 

No. 86-374 

THE MONTANA POWER COMPANY, 

Plaintiff-Respondent, 

-vsLILLIAN 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. ,WE nKiek&knn 

Butte, Montana 

(Continued, next page) 
Submitted: February 10, 1987 

Decided: May 12, 1987 

Filed: MAY I 2 1987 

i 

*# 

Clerk 

w 
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 in jury" 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. - See Rules 21 (b) and 5, M.R.App.Civ.P. ; Zell v. Zell 

(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 SS 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. ~al. 

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 - Co., 92 

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. - Id.; -- see also Otter Tail Power - Co., 92 

N.W.2d at 521; In -- Re Bangor Hydro-Electric Co., 314 A.2d at 
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 -- laws or rules. 

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 - of courts restricted. 

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 environmentalcompatability 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 District Court under § 75-20-407 has no jurisd-iction to 

determine "minimum necessary interest" in this case if such 

an issue could have been determined in the proceedings before 

the Board. We find no weight in this issue. 

The judgment of the District Court is affirmed, and the 

cause is remanded for further proceedings. 

We Concur: /' 

\c)-ftnL12.- - 

Justice 

,4$7M~ 

Chief Justice 

Justices