Avista loses fight over easement: Judge says old rules don't apply to new steel towers on farmland

 

Apr 17 - McClatchy-Tribune Business News Formerly Knight Ridder/Tribune Business News - John Stucke The Spokesman-Review, Spokane, Wash.

 

Colfax farmer Martin Marler has won a legal fight with Avista Utilities, convincing a state judge that the company's massive transmission line improvements strung across his wheat fields violated a decades-old easement and will cost his farm money.

The ruling last week by Whitman County Superior Court Judge David Frazier found that easements granted to Avista in the 1920s did not authorize the regional utility to erect new steel towers and high-voltage lines across Marler's property.

It also may expose Avista to more easement challenges from farmers similarly frustrated that the sheer height of the towers and power lines prevent crop dusters from spraying fertilizers and pesticides because of safety concerns and worries that chemicals sprayed from higher-flying planes could drift to neighboring fields.

"We're disappointed, obviously," said Avista spokesman Hugh Imhof.

He said the company is reviewing its options, though it will probably proceed with condemnation rather than appeal Frazier's decision.

Avista already affirmed its rights of eminent domain, though such an action will require the utility to pay a fair price for the land seized.

While Avista weighs its options, Marler is poised to file a trespassing action against Avista, an action that his attorney, Tim Esser, said could provide financial damages and cover his attorney fees on the matter.

The problems between Avista and Marler began several years ago when Avista announced that its Palouse transmission project -- a $45 million undertaking designed to bring better reliability to the Colfax and Pullman area and help Avista better align with the national power grid.

Part of the plan included replacing older, 60-foot wooden transmission poles with steel poles reaching 120 feet tall.

When Marler balked at Avista's plans, the company filed a court action against him. In the first phase, the judge ensured that Avista, at the very least, had the power to condemn the land for the public good.

Though Avista's project fit within the width restrictions included in the old easements, the judge found that the precise language of Marler's easement didn't allow Avista to make such dramatic changes that would cut into his farming operation, including some choice bottomland fields where wheat yields can top 100 bushels to the acre without irrigation.

Of particular concern is a single so-called lightning shield wire that runs far above the heavy-duty transmission lines. In some places the wire reaches about 250 feet above valley floors as it stretches from one hilltop pole to the next.

Marler likened it to an electric fence.

The judge was not interested in Marler's contention that Avista was wrongly using the easement to help it sell and transmit electricity from its Clark Fork River dams in Montana and North Idaho into lucrative markets in California elsewhere.

The transmission line was originally built to bring electricity to rural Whitman County, part of Avista's mission of rural electrification.