The attorney for a Baker County couple who own property along the route of the Boardman to Hemingway power transmission line that Idaho Power Company wants to build told a judge that the company’s lawsuit seeking an easement across the couple’s land should be dismissed.

Andrew Martin, a Baker City attorney, contends that the condemnation lawsuit Idaho Power’s attorney filed May 20, 2024, against Tel and Lacey Abbe, who own a ranch near Farewell Bend, includes “impermissible language” that invalidates the complaint.

Martin and Timothy Helfrich, the Ontario attorney who represents Idaho Power, argued their cases before Judge Matt Shirtcliff in Baker County Circuit Court during an hour-long hearing Tuesday morning, Oct. 22.

The subject was a motion for summary judgment — in effect asking the judge to dismiss the lawsuit — that Martin filed on the Abbes’ behalf on July 23.

Shirtcliff, after hearing arguments from Martin and Helfrich, said he would issue a ruling “fairly quickly.”

Also known as eminent domain, condemnation is a legal process in which a judge or jury orders a property owner to sell land, or an easement, to make possible a particular project, and decides the price.

Eminent domain lawsuits can be filed by public agencies, such as a state department of transportation to acquire land for a highway or other project, or, as in this case, by a private firm.

Idaho Power is seeking a 160-foot-wide easement, totaling about 17.5 acres, across the Abbes’ property for the power line and an access road, according to the lawsuit.

The company has offered $28,470 for the easement for the project known as B2H, according to the lawsuit. The couple rejected the offer, which by law must be made at least 40 days before a condemnation lawsuit is filed.

Idaho Power wants to finish the 293-mile line, which runs from near Boardman to a substation in Idaho, by 2027.

In his motion for summary judgment, Martin wrote that the lawsuit filed against the Abbes includes language about “warranties” and “covenants” that would make the couple a “title insurer for Idaho Power,” and that the couple “would be liable to Idaho Power for anyone who holds a property interest in the property at issue that Idaho Power may have left out or failed to include in this condemnation action.”

Those liabilities exceed the limits of condemnation under Oregon law, Martin contends.

In his response to the motion, Helfrich argued that Martin’s motion has a “fundamental misunderstanding of the condemnation process.” Helfrich contends that the inclusion of “warranties” and “covenants” does not impose the requirements on the Abbes that Martin contends.

Malheur County cases, and Tuesday’s court hearing

Martin and Helfrich, in their arguments to Shirtcliff on Tuesday morning, addressed issues raised in two other condemnation lawsuits for the B2H project, both of which Helfrich filed against landowners in Malheur County.

The issues in those suits are identical to those in the Abbes’ case, said Martin, who also represents the landowners in the two Malheur County complaints.

One of those properties borders the Abbes’ land, Martin told Shirtcliff.

Martin summarized the argument he made in his July motion — that the lawsuit against the Abbes, in describing the easement Idaho Power is seeking, references “warranties and covenants” that constitute “personal obligations” from the Abbes that can’t, by law, be included in the description of an easement in a condemnation suit.

“Idaho Power has no right to obtain those warranties,” Martin said to Shirtcliff.

Martin described the terms as “impermissible and unenforceable.”

He made basically the same argument in the two Malheur County cases.

On Oct. 10, Judge Lung S. Hung of Malheur County Circuit Court granted Martin’s motion for summary judgment on both lawsuits in that county.

Hung wrote in his opinion in both cases that the language describing the easements sought in the lawsuits constitutes “personal contractual obligations.” Attorneys for both Idaho Power and the property owners “agree a condemnation cannot be used to obtain personal contractual obligations,” Judge Hung wrote in explaining why he granted Martin’s motions for summary judgment in both lawsuits.

Martin argued Tuesday that Shirtcliff should apply the same standard to the Abbes’ case, and grant the motion for summary judgment that would dismiss that lawsuit.

Helfrich, in a written objection to Hung’s decision on the two Malheur County lawsuits, filed Oct. 17, argued that despite the issue with the language describing the easement, the judge should, rather than dismiss the two lawsuits, allow attorneys to amend the complaints to remove the offending language “rather than unnecessarily file the same thing in a new case.”

Martin, in a written response to Helfrich’s objection filed Oct. 18, argued that Helfrich “is attempting a ‘second bite at the apple’ on a matter that already been litigated on summary judgment.”

Martin contends that Oregon courts have “summarily denied” requests, similar to Helfrich’s, to amend lawsuits “after summary judgment motions have been heard or a ruling on summary judgment has been entered,” which is the case with the two Malheur County cases on which Lung ruled.

During Tuesday’s hearing in Baker County Circuit Court, Martin argued that if Idaho Power were allowed to amend the lawsuit it filed against the Abbes, the revised document, lacking the original language regarding warranties and covenants, would be different from the original complaint.

That discrepancy violates Oregon law on condemnations, Martin told Shirtcliff.

Martin argued that Idaho Power has tacitly acknowledged the flaw in the original lawsuit by omitting the language about warranties and covenants in the condemnation suits it has subsequently filed for B2H.

That includes six suits filed in Baker County during October.

In the Abbes case, Martin argued, the proper remedy is to dismiss the lawsuit and, in effect, require Idaho Power to start over.

In his argument before Shirtcliff on Tuesday, Helfrich called Martin’s claims a “classic case of form over substance.”

Helfrich said the judge could, and should, allow Idaho Power to amend its complaint against the Abbes, rather than dismissing the suit.

In that case, Helfrich said, “we would simply be back to square one,” with a new lawsuit that seeks the same easements as the one he filed in May.