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MONTANA-DAK. UTIL. CO. v. CITY OF BILLINGS

No. 01-862.

80 P.3d 1247 (2003)

2003 MT 332

MONTANA-DAKOTA UTILITIES CO., a Division of MDU Resources Group, Inc.; The Montana Power Company; and Yellowstone Valley Electric Cooperative, Inc., Plaintiffs and Respondents, and Touch America, Inc., Intervenor and Respondent, v. The CITY OF BILLINGS, Montana, Defendant and Appellant.

Supreme Court of Montana.

Submitted October 23, 2002.

Decided December 3, 2003.

Attorney(s) appearing for the Case

For Appellant Brent Brooks, City Attorney, Billings, Montana, Joseph Van Eaton (argued), Miller & Van Eaton, P.L.L.C., Washington, D.C.

For Respondents Elizabeth Baker (argued) and John Alke, Hughes, Kellner, Sullivan & Alke, Helena, Montana, Patrick T. Fleming, Butte, Montana (Intervenor).

For Amici David L. Nielsen, City Attorney, Helena, Montana (Montana League of Cities and Towns), Maxon R. Davis, Davis, Hatley, Haffeman & Tighe, Great Falls, Montana Electric Cooperatives Ass'n; Montana Independent Telecommunications System; and Montana Telecommunications Ass'n.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Public utilities and telecommunications corporations with transmission lines, cables, pipelines or other facilities located within public rights-of-way challenge a franchise fee established by ordinance in Billings, Montana. The Thirteenth Judicial District Court, Yellowstone County, held that the franchise fee constitutes an illegal tax. We affirm.

¶ 2 The issue on appeal is whether...

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