Public Comment. Volume III - Montana Legislature

, ti AND !l L I P
HOLLAND & HART^^^
AmORNEYS AT LAW
Environmental Quality Council
April 1 1, 2000
Page 2
the stake does not apply to underground coal mining. The prohibition
applicable to surface coal mining.was.tnacted in the early 1970s- when surface .
coal mining was a controversial issue in Montana, based in part on the fact that
surface coal mining disturbs a large surface area, which is perhaps some reason
for making the distinction between surface and underground mining, which needs
much less of the surface. Elimination of hard rock mining from the list of
permitted uses for, condemnation would result in owners of minerals being
deprived of their property. Although it sounds simplistic, an ore body must be
mined where it exists; it cannot be moved. If the mining company does not have
the power to take portions of the surface - in every instance paying just
compensation - for location of mills, smelters, tailing ponds and other necessary
adjuncts to the mining process, then it would be impossible to mine. I
respecfilly suggest to the subcommittee that elimination of hard rock mining in
Montana is something that should not occur at all, and certainly should not
occur under the guise of a rewriting of the eminent domain laws.
I likewise disagree with the proposal to change the burden of proof in
eminent domain proceedings from "a preponderance of the evidence" to &clear
and convincing." While there are instances under Montana law in which clear
and convincing evidence is required in a civil action, they are distinguishable
from most civil actions such as condemnation. For exampIe, a plaintiff must
prove entitlement to punitive damages by clear and convincing evidence,
however, the state recognizes that punitive damages are extraordinary and
require a higher burden of proof for that reason. Likewise, certain actions
involving the welfare of children require a higher degree of proof for obvious
reasons. Further,.none of the civil actions which requires a showing of "clear
and convincing" evidence involves actions by or on behalf of the State in the
public interest, and for uses which have specifically been approved by the
legislature.
Furthermore, .to suggest that uclear and convinciag" is a compromise or
middle ground "between preponderance of the evidence," and "beyond a
reasonable doubt" is inaccurate and misleading. "Beyond a reasonable doubt" is
the standard for burden of proof in criminal cases, and has no relevancy to civil
litigation. Instead of being a middle ground, "clear and convincing" is the
highest standard of proof required in civil actions, and is inappropriate in
eminent domain actions. None of the reasons supporting the exercise of eminent
d~mpjn has changed, and as pointed out earlier in this letter, the exercise of
eminent domain has become less intrusive over time. In fact, no justification is
EQC Eminent Domain Study -1 19-