Public Comment. Volume III - Montana Legislature

MONTANA DEPARTMENT OF TRANSPORTATION
Helena, Montana 59620-1001
MEMORANDUM
TO:
Krista Lee
Eminent Domain Subcommittee
Environmental Quality Council
FROM:
DATE: March 30,2000
SUBJECT:
Standard of ProoWublic Interest
At the outset, this Department (MDT) urges the Subcommittee not to change the evidentiary
standard ofproofregarding "public necessity." The reasons for this position will be explained in more detail
in the following discussion.
Technically speaking, the current standard of proof is not "preponderance of the evidence." In the
usual condemnation case, if the landowner does not admit public necessity, MDT makes a motion in District
Court for a Preliminary Condemnation Order. Mont. Code Ann. § 70-30-206(2) states that such an
Order must be entered by the Court if the evidence presented shows "that the public interest requires the
taking of such interest in real property and that the plaintifFhas met his burden of proof under 70-30- 1 1 1 ."
Mont. Code Ann. § 70-30- 1 1 1 requires a showing:
(1) that the use to which it is to be applied is a use authorized by law;
(2) that the taking is necessary to such use;
(3) if already appropiiated to some'public use, that the public use to which it is to be
applied is a more necessary public use;
(4) that an effort to obtain the interest sought to be condemned was made by
submission of a written offer and that such offer was rejected.
When the issue is a public road or highway, there is no question that a public road use is authorized
by law. Mont. Code Ann. §§ 60-4- 103 and 70-30- 102. Also, in most cases, the land being condemned
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