Public Comment. Volume III - Montana Legislature

GUNDERSON LAW FIRM
AlTORNEYS AT LAW
POST OFFICE BOX 926
BILLINGS. MONTANA 59103
ALLEN D. GUNDERSON
TODD D. GUNOERSON
gundylaw@wtp.net
March 31, 2000
ENVIRONMENTAL
20s BEHNER BUILDING
TELEPHONE 252-2177
FAX 252-2270
406
VIA Facsimile and Regular Mail
406-444-3036
Environmental Quality Council
P.O. Box 201 704
Helena, MT 59620- 1704
AlTN: Eminent Domain Subcommittee
RE:
Burden of Proof Standards
Dear Subcommittee Members:
'The subcommittee has expressed a desire to receive written comments on the issue of replacing
the evidentiary standard necessary to establish that a taking is in the public interest, by
replacing the burden of proof of "preponderance of the evidence" with the "clear and
convincing" standard. The preponderance standard is simply the greater weight of the evidence.
In other words, the evidence supporting the propositions which a party has the burden of
proving, must outweigh the evidence opposed to it.
In a parental rights case, the Montana Supreme Court defined a clear and convincing evidence as
simply a requirement that a preponderance of the evidence be definite, clear and convincing, or
that a particular issue must be clearly established by a preponderance of the evidence or by a
clear preponderance of proof. 'This requirement does not call for unanswerable or conclusive
evidence. The quality of proof, to be clear and convincing, is somewhere between the rule in
ordinary civil cases and the requirement of criminal procedure -- that is, it must be more than
a mere preponderance, but not beyond a reasonable doubt. Matter of J.L. (1996), 277 Mont.
284, 922 P.2d 459.
'The "clear and convincingn standard does not lend itself to the issues involved in an eminent
domain case. The condemnor walks a fine line balancing the greatest public good, the least
private injury and the desires of the landowners. In addition, the route chosen must take into
consideration environmental concerns such as wetlands, erosion control, sediment control, weed
control, revegetation, reclamation, feasibility of construction, safety, and a host of other issues.
For example, an electric transmission line must get from point A to point B. There are an
infinite number of routes to follow in achieving this goal. A preliminary route is picked and
then landowners are contacted. Landowner input is critical because the landowners are a
fountain of knowledge on where such a line could be placed on their land. Most are extremely
helpful in this regard. But many landowners have a preference as to where to locate the utility
across his or her land. However, a landowner's preference may not match that of his neighbors.
EQC Eminent Domain Study -1 05-