Public Comment. Volume III - Montana Legislature

Northern Plains Resource Council
March 30, 2000
Ms. Krista Lee, Resource Policy Analyst
Montana Environmental Quality Council
P.O. Box 20 1704
Helena, Montana 59620- 1 704
ENVIRONMENTAL
QUALITY CgUlWClE
Re:
Request for Comment on Standard for Burdens of Proof Pertaining to
Eminent Domain - HJR 34 Interim Study
Dear Ms. Lee:
Thank you for the opportunity to comment on the issue of the standard for burdens of
proof in eminent domain proceedings. As you know, NPRC represents landowners across
Montana who have been condemned, threatened with condemnation, or otherwise directly
affected in an adverse manner by eminent domain.
Two standards for burdens of proof generally exist in civil court cases. Using the lesser
standard, assertions must be proven by "a preponderance of the evidence." This standard is
usually interpreted to mean "that the existence of a contested fact is moreprobable than its nonexistence.
" Cleary et al, McConnick on Evidence (3* Ed. 1984) at 957. Using the higher
standard, assertions must be proved by "clear and convincing evidence." It has been argued that
to meet this standard, the fact must be shown to be "highly probable." Id at 960. Despite
statements by industry to the contrary, the higher standard is not akin to a standard of "beyond a
reasonable doubt," which is the highest evidentiary standard, and reserved for criminal cases. Id
at 963. Currently the eminent domain law provides that both parties, the plaintiff (condemnor)
and the defendant (the landowner) need only prove their assertions in court by the lowest
standard. The EQC Eminent Domain Subcommittee is discussing whether the standard for
burdens of proof should be changed from a preponderance of the evidence to clear and
convincing evidence.
NPRC continues to recommend that the standard be raised to clear and convincing
evidence for assertions by the condemnor in an eminent domain proceeding. We specifically
suggest that: (a) Section 70-30-1 1 1, MCA be amended to require condemnors to show that the
public interest requires the taking by clear and convincing evidence; (b) that another provision of
law be enacted so that if a condemnor seeks an interest in a landowner's property greater than an
easement, the condemnor proves the greater interest is necessary by clear and convincing
evidence; and (c) that the law be-changed so that determinations of public use must be proven by
clear and convincing evidence.
Because Montana's eminent domain law is so slanted toward the condemnor, landowners
should not be required to meet a clear and convincing standard when the burden shifts to the
defendant in an eminent domain proceeding. As Subcommittee members discussed in Missoula,
landowners frequently do not have access to the vast legal resources of large corporations and the
State. Landowners have testified they feel they have no options but to sign an agreement with the
condemnor. Telling landowners they must meet the same evidentiary requirements to defend their
2401 Montana Avenue Suite # 200 Billings, Montana 59101-2336
Phone: (406) 248-1154 Fax: (406) 248-2110 E-mail: info@nprcmt.org Web: http://www.nprcmt.org
-1 08- Volume Ill: Public Comment