Revise civil liability laws

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AN ACT GENERALLY REVISING LAWS RELATING TO WILDFIRES AND UTILITIES; REQUIRING CERTAIN
ENTITIES TO PREPARE A WILDFIRE MITIGATION PLAN; PROVIDING DEFINITIONS; PROVIDING
REQUIREMENTS FOR THE WILDFIRE MITIGATION PLAN; PROVIDING FOR APPROVAL OF THE
WILDFIRE MITIGATION PLAN; REQUIRING UPDATED REPORTS RELATING TO THE WILDFIRE
MITIGATION PLAN AND SUBMISSION OF AN UPDATED WILDFIRE MITIGATION PLAN; PROVIDING THAT
CERTAIN ENTITIES THAT HAVE SUBSTANTIALLY FOLLOWED AN APPROVED WILDFIRE MITIGATION
PLAN ARE AFFORDED CERTAIN CIVIL LIABILITY PROTECTIONS FOR INJURY OR DAMAGES CAUSED
BY WILDFIRE; REVISING THE STANDARD OF CARE RELATING TO CERTAIN ENTITIES AND WILDFIRE;
PROVIDING RULEMAKING AUTHORITY TO THE PUBLIC SERVICE COMMISSION RELATING TO
WILDFIRE MITIGATION PLANS; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE.
WHEREAS, the Legislature finds that electric facilities providers of Montana have an obligation to serve
customers and extend services, which is different from typical businesses, and that they provide a necessary
and beneficial public service for the supply, transmission, and delivery of electricity to the people of Montana as
well as a fundamental basis of economic growth and development of all sectors of Montana's economy; and
WHEREAS, there is a growing threat of wildfires in the United States and within the state of Montana;
and
WHEREAS, in recognition of electric facilities providers' obligation to serve their customers and in order
to secure and sustain Montana's reliable provision of electricity and services associated with it at just and
reasonable rates, electric facilities providers must be encouraged and have the right to deliver and transmit
electricity throughout the state without fear or risk of being held strictly liable for wildfire losses under the
common law theory of ultrahazardous activity or being held liable for wildfires caused by factors beyond their
control; and
THEREFORE, the intent of the Legislature to protect electric facilities providers from strict liability and
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uncertain common law standards of care in the event of an unintentionally or negligently caused wildfire and to
provide a standard of care for electric facilities providers that choose to affirmatively undertake wildfire
mitigation efforts.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Definitions. As used in [sections 1 through 3], the following definitions apply:
(1) "Approval authority" means the commission for a regulated utility, the board of trustees for an
electric cooperative, the city council or city commission for a municipal utility, or the appropriate body
responsible for corporate governance of any other type of electric facilities provider.
(2) "Commission" has the same meaning as provided in 69-1-101.
(3) "Department" means the department of natural resources and conservation, as provided in 2-
15-3301.
(4) "Electric cooperative" means a cooperative organized under Title 35, chapter 18, or a similar
state law for providing electricity to the public in Montana.
(5) “Electric facilities” means any equipment used for the transmission or distribution of electricity
to the public, including but not limited to generation and energy storage resources, substations, switchyards,
poles, towers, transformers, conductors, and relaying, sectionalizing, and protective equipment, such as
arrestors.
(6) "Electric facilities provider" means any of the following that engages in electric transmission
and distribution activities as defined in this section:
(a) a an operator, regulated utility, or electric cooperative;
(b) a municipally owned utility;
(c) an entity, owning electric facilities in the state without regard to the jurisdiction of the
commission; or
(d) a transmitting utility under the jurisdiction of the federal energy regulatory commission.
(7) "Electric transmission and distribution activities" means a condition, activity, or facility directly
related to the conveyance and distribution of electrical energy to a person, facility, transmission, or distribution
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system in the state.
(8) "Jointly owned electric facility" means an identified set of electric facilities that is jointly owned
by multiple parties and operated by a designated operator.
(9) "Operator" means the person or entity designated by the owners of a jointly owned electric
facility as defined in this section as responsible for the operation and maintenance of jointly owned electric
facilities.
(10) "Regulated utility" means a public electric utility regulated by the commission under Title 69,
chapter 3.
(11) "Wildfire" has the same meaning as "forest or range fire" as defined in 50-63-104 and, for the
purposes of [sections 1 through 3], a fire ignited by electric facilities or activities associated with electric
transmission and distribution activities, regardless of whether the fire's ignition occurs within an incorporated
municipality.
(12) "Wildfire mitigation plan" means an electric facilities provider's written plan, including any
related components, that identifies risks associated with wildfire and strategies to mitigate or reduce those risks.
Section 2. Electric facilities provider -- wildfire -- wildfire mitigation plan approval. (1) An
electric facilities provider shall prepare a wildfire mitigation plan in accordance with this section and submit the
plan to its approval authority and commence implementation of its wildfire mitigation plan no later than
December 31, 2025. An electric facilities provider shall resubmit an updated or subsequent wildfire mitigation
plan to its approval authority at least every 3 years.
(2) A wildfire mitigation plan must include a description of:
(a) areas in which the electric facilities provider has electric facilities or electric transmission and
distribution activities that may be subject to a heightened risk of wildfire;
(b) the strategies and programs that the electric facilities provider will use to inspect, maintain,
repair, and operate its electric facilities;
(c) the strategies and programs that the electric facilities provider will use to perform vegetation
management;
(d) the strategies for modifications or upgrades to electric facilities and preventative programs that
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the electric facilities provider will employ to reduce the risk of its electric facilities igniting a wildfire;
(e) the strategies and methods for de-energizing power lines and modifying electric facility
operations to mitigate potential wildfires taking into consideration the ability of the electric facilities provider to
reasonably access the proposed electric facility to be de-energized, the balance of the risk of wildfire with the
need for continued supply of electricity to a community, and any potential impact to public safety, first
responders, and health and communications infrastructure;
(f) the methods the electric facilities provider intends to use to restore its electrical system in the
event systems are de-energized for the prevention of a wildfire;
(g) the estimated incremental costs associated with implementing the plan, including system
improvements and upgrades for a regulated utility;
(h) community outreach and public awareness efforts before and during a wildfire season; and
(i) potential participation, if applicable, with state or local wildland fire protection plans or wildfire
mitigation plans.
(3) An electric cooperative must present incremental costs associated with implementing a wildfire
mitigation plan to its approval authority for consideration when reviewing the plan. However, those costs may
not be a part of the wildfire mitigation plan itself.
(4) For the purposes of [sections 1 through 3], the approval authority for an electric facilities
provider's wildfire mitigation plan shall:
(a) initially review an electric facilities provider's wildfire mitigation plan;
(b) consider any input from a federal, tribal, state, or local entity, or other interested persons during
a public comment period not to exceed 45 days; and
(c) after a public meeting and no more than 60 days after the close of public comment:
(i) approve the wildfire mitigation plan or identify any deficiencies in the plan; and
(ii) provide required modifications in writing with the opportunity for the electric facilities provider to
correct the deficiencies and resubmit the plan for approval.
(5) The department and Montana disaster and emergency services shall review a wildfire
mitigation plan submitted to the commission and within the public comment period provide comments and
recommendations regarding aspects of the plan within each of their jurisdictions.
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(6) The approval authority shall approve the wildfire mitigation plan if the approval authority
determines the wildfire mitigation plan contains the required components in subsection (2), is in the public
interest, and reasonably balances the incremental costs of implementing the plan with the risk of a potential
wildfire.
(7) No later than June 1 of each year, the electric facilities provider shall submit to its approval
authority a report summarizing the electric facilities provider's wildfire mitigation efforts and compliance with its
currently authorized wildfire mitigation plan.
(8) For any jointly owned electric facilities, the operator shall prepare and implement the required
wildfire mitigation plan for the jointly owned electric facilities. If an owner of a jointly owned electric facility is a
regulated utility, the commission is the approval authority whether or not the operator is a regulated utility. The
operator's submission and implementation of a wildfire mitigation plan as required by this subsection satisfies
the obligations under this section for the jointly owned electric facility only.
(9) In accordance with the Montana Administrative Procedure Act, the commission may make any
necessary rules establishing procedures for the review and comment on a regulated utility's wildfire mitigation
plan, including for the appointment of a technical master to determine whether the wildfire mitigation plan
contains the required components in subsection (2).
(10) Nothing in this section may be construed to create a new liability, basis for claim, or separate
legal cause of action arising from the review or approval of a wildfire mitigation plan when none would exist
otherwise.
Section 3. Electric facilities provider -- wildfire -- cause of action -- standard of care --
damages. (1) The purpose of this section is to set statutory criteria governing the civil liability of an electric
facilities provider for wildfire-related claims. An electric facilities provider has an obligation to serve the public,
and a standard of strict liability may not be applied to an electric facilities provider as follows:
(a) in a cause of action alleging the electric facilities provider's electric facilities or electric
transmission and distribution activities caused wildfire-related damages; or
(b) in a cause of action alleging an electric facilities provider's wildfire mitigation activities
conducted in accordance with a wildfire mitigation plan caused damages.
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(2) An electric facilities provider may be found civilly liable only under the provisions of this section,
and may not be found civilly liable under any other statute, theory of recovery, or common law claim, for
wildfire-related injury or damages arising from the electric facilities provider's electric facilities or electric
transmission and distribution activities or for injury or damages arising from any act or omission of the electric
facilities provider associated with implementing a wildfire mitigation plan.
(3) An electric facilities provider may be found civilly liable for:
(a) wildfire-related injury or damages arising from the electric facilities provider's electric facilities
or electric transmission and distribution activities; or
(b) injury or damages arising from an act or omission of the electric facilities provider associated
with implementing a wildfire mitigation plan only if the party seeking recovery establishes:
(i) the electric facilities provider failed to exercise the degree of care, skill, and learning expected
of a reasonable, similarly situated electric facilities provider at the time in the state, acting under the same or
similar circumstances; and
(ii) the failure was the proximate cause of the injury to person or property for which recovery is
sought.
(4) After an electric facilities provider has commenced implementation of its wildfire mitigation plan,
in an action against an electric facilities provider seeking wildfire-related damages arising from the electric
facilities provider's electric facilities or electric transmission and distribution activities, there is a rebuttable
presumption that the electric facilities provider acted reasonably if, with respect to the place of the wildfire's
ignition, the electric facilities provider substantially followed a wildfire mitigation plan that was approved in
accordance with [section 2], provided that evidence related to the electric facilities provider's actual incremental
costs associated with implementing a wildfire mitigation plan may not be considered in determining whether the
electric facilities provider substantially followed its wildfire mitigation plan. The presumption in this subsection
(4) may be controverted by other evidence.
(5) In an action against an electric facilities provider under this section, if a plaintiff has proved
liability, as required:
(a) a plaintiff may recover for real and personal property damage pursuant to 50-63-104;
(b) in the event of a bodily injury or death, a plaintiff may recover:
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(i) economic damages, including medical expenses and lost wages; and
(ii) noneconomic damages;
(c) a plaintiff may not recover noneconomic losses unless the plaintiff suffered bodily injury or
death;
(d) an electric facilities provider may not be assessed punitive damages unless there is a showing,
by clear and convincing evidence, that the electric facilities provider's actions were grossly negligent or
intentional. An electric facilities provider's acts or omissions may not be considered grossly negligent if the
electric facilities provider substantially followed its wildfire mitigation plan with respect to the place of ignition.
The availability of punitive damages is otherwise subject to the provisions of 27-1-220 and 27-1-221.
(e) a person who obtains payment pursuant to a policy of insurance for damages resulting from a
wildfire loss is deemed to have been made whole exclusively for purposes of an insurer's right to subrogation
under this section.
(6) A civil action against an electric facilities provider under this section must be commenced within
3 years from the date the plaintiff first incurred injury or damages, without regard to when the injury or damages
are discovered.
(7) This section does not affect express contractual rights of any person or entity in any way
involving communications facilities or the shared use of electric facilities or pole attachments.
Section 4. Notification to tribal governments. The secretary of state shall send a copy of [this act]
to each federally recognized tribal government in Montana.
Section 5. Codification instruction. [Sections 1 through 3] are intended to be codified as a new part
in Title 69, chapter 2, and the provisions of Title 69, chapter 2, apply to [sections 1 through 3].
Section 6. Severability. If a part of [this act] is invalid, all valid parts that are severable from the
invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in
effect in all valid applications that are severable from the invalid applications.
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Section 7. Effective date. [This act] is effective on passage and approval.
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I hereby certify that the within bill,
HB 490, originated in the House.
___________________________________________
Chief Clerk of the House
___________________________________________
Speaker of the House
Signed this _______________________________day
of____________________________________, 2025.
___________________________________________
President of the Senate
Signed this _______________________________day
of____________________________________, 2025.
HOUSE BILL NO. 490
INTRODUCED BY A. REGIER, G. OBLANDER, K. ZOLNIKOV, T. FRANCE
AN ACT GENERALLY REVISING LAWS RELATING TO WILDFIRES AND UTILITIES; REQUIRING CERTAIN
ENTITIES TO PREPARE A WILDFIRE MITIGATION PLAN; PROVIDING DEFINITIONS; PROVIDING
REQUIREMENTS FOR THE WILDFIRE MITIGATION PLAN; PROVIDING FOR APPROVAL OF THE WILDFIRE
MITIGATION PLAN; REQUIRING UPDATED REPORTS RELATING TO THE WILDFIRE MITIGATION PLAN
AND SUBMISSION OF AN UPDATED WILDFIRE MITIGATION PLAN; PROVIDING THAT CERTAIN ENTITIES
THAT HAVE SUBSTANTIALLY FOLLOWED AN APPROVED WILDFIRE MITIGATION PLAN ARE AFFORDED
CERTAIN CIVIL LIABILITY PROTECTIONS FOR INJURY OR DAMAGES CAUSED BY WILDFIRE; REVISING
THE STANDARD OF CARE RELATING TO CERTAIN ENTITIES AND WILDFIRE; PROVIDING RULEMAKING
AUTHORITY TO THE PUBLIC SERVICE COMMISSION RELATING TO WILDFIRE MITIGATION PLANS; AND
PROVIDING AN IMMEDIATE EFFECTIVE DATE.