Public Comment. Volume III - Montana Legislature

These examples illustrate that clear and convincing evidence should be required before
depriving citizens of their property. It is wrong that owners of real property are not protected by
the same evidentiary standard. It is currently easier to deprive landowners of their fundamental
right to own property than it is to prove someone broke a city parking code.
Further, Montana's environmental statutes hold plaintiffs to standards of clear and
convincing evidence. The Environmental Policy Act requires citizens to prove that agency actions
in approving environmental impact statements were arbitrary and capricious with this higher
standard. Section 75- 1-20 1, MCA. Megalandfill Siting Act and Major Facility Siting Act
proceedings require applicants to prove their certificates of environmental compatibility should
be approved by clear and convincing evidence. Section 75-10-928(3), MCA.
Considering the wide number of civil court cases requiring clear and convincing
evidence, industry's unsubstantiated argument that raising the standard for burden of proof will
somehow harm business or slow the economy does not withstand scrutiny. To the contrary, the
evidentiary standard for condemnation will improve the position of Montana's largest industry -
agriculture.
NPRC wants to stress to the Subcommittee that raising the standard for the condemnor's
burden of proof must only be done in conjunction with other, more substantive reforms of the
eminent domain law. As they testified in Helena, Missoula, and in Billings, landowners want
reforms that:
Make condemnors minimize damage to private property;
Ensure that only true public uses get the power of eminent domain;
Provide for just compensation which covers damages to the remainder of the property
not taken;
Allows landowners to retain possession of their property while the case is on appeal;
and
Makes eminent domain for private companies a privilege, not a right, by requiring
condemnors to: (a) prove they have adequate financial resources; (b) use the land
only for one particular project; (c) limit their interest taken to an easement when
requested by the landowner; and (d) give back the land if they don't build their
project with due diligence or if they cease using the land for five years.
We ask the Subcommittee to vote at its April 12 meeting to draft legislation enacting the
recommendations above.
Again, thank you for the opportunity to comment. If you have any questions, please feel
free to contact our office.
Sincerely,
L;F%F
DENA HOFF
NPRC Chair
March 31,2000
Page 3
-1 10- Volume Ill: Public Comment