Public Comment. Volume III - Montana Legislature

Environmental Quality Council
March 31, 2000
2 of 3 Pages
Consequently, there is a lot of negotiating between the utility company, environmental experts,
engineers and the various landowners concerning where to best route the line, and whether it is
feasible. As you might guess, the proposed route may come down to picking one coulee over
another. If coulee 'A" is picked, it may upset the landowner who owns that specific coulee.
However, that choice may be the most buildable and environmentally sound route to follow and
will tie in with the neighboring landowners' desires.
Routing a line involves engineering and environmental sciences, certainly. However, those
sciences are used to reach compromise. The clear and convincing standard is not applicable in
this type of situation. There may not be a clear and convincing choice in terms of the
environment or engineering. However, it may be a reasonable, requisite and proper route when
all of the factors are considered, including the desires of adjacent neighbors. It is all too easy
for a condemnee to stand up in court and point to an alternate route because there are always a
number of routes that can possibly be used to get from point A to point B.
Under the current law, we do know this:
1. A condemnor must prove that the public interest requires the taking.
5 70-30-206(2).
2. It must prove that the use is authorized by law. 5 70-30-1 1 l(1.);
3. It must prove that the taking is necessary (reasonable, requisite and
proper). 5 70-30-1 11 (2). Montana Power v. Bokma (1 969),
153 Mont. 390, 399, 457 P.2d 769, 775.
4. If the land is already appropriated to a public use, the condemnor
must prove that this is a more necessary one. 5 70-30-1 1 l(3).
5. The condemnor must prove that it made a written offer that was
rejected. 5 70-30-1 11 (4).
6. If a condemnor fails to consider alternate routes, the greatest public
good and the least private injury then this action is arbitrary and
amounts to an abuse of discretion. Shara v. Anaconda Co. (1 980),
198 Mont. 377, 386, 610 P.2d 132, 137; Montana Power Co. v.
Bokma (1969), 153 Mont. 390, 399, 457 P.2d 769.
7. 'The condemnor must take only the minimum necessary interest and
the court has the power to limit that interest. 55 70-30-203(6)
and 70-30-206(1)(b), MCA.
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