Public Comment. Volume III - Montana Legislature

BROWNING, KALECZYC, BERRY & HOVEN, P.C.
AlTORNEYS AT LAW
Q MREW ADCMEK
KUBERLY A. BEKTrY
LEO BERRY
R mPnm BROWM
ROBERT CI)*IERON
UWIM 5. DOWELLEV
MARK 0. €rCWRT
W Y K (YDDINGS
OLMR n GOE
J. W E L HOVEN
Mailing Address
POST OFFICE BOX 1697
HELENA. MONT'ANA 5%24
TELEPHONE (406) 443-6820
bkbh@bkbh.com
JEFF J JARACZESKI '
Street Address
STANLEY T KALECZYC
CATHERINE A. LAUGHNER
139 NORTH LAST CHANCE GULCH DAVID M MCLEAN
HELENA. MONT'ANA 5%01
WRK R TAYLOR
KIMBERLY L. TOWE
TELEFiIX 406) 443-6883
STEVEN T WADE
w.bkbh.com
LEOS WAR0
' Locansad an CA and u
MEMORANDUM
TO: EQC - Eminent Domain Subcommittee
FROM: Steven T. wad& *N
DATE: April 7, 2000
EIYVIRC)N~IIVTAL
QUALITY COUNCIL
RE:
Burden of Proof in Eminent Domain Matters
We are writing in response to the Subcommittee's request for comments on changing the
burden of proof in Eminent Domain cases from a preponderance of the evidence to a clear and
convincing evidence standard. We strongly urge the Subcommittee to maintain the burden of proof
as a preponderance of the evidence. The current burden presents a fair and equitable framework for
establishing the need for a condemnor to condemn property if the statutory and case law
requirements are met.
At the Billings meeting there were discussions that the Montana Environmental Policy Act
(MEPA) and the National Environmental Policy Act (NEPA) have established some precedent that
can be applied to Eminent Domain. There was some discussion that the standard of proof in MEPA
and NEPA cases is that of clear and convincing evidence. Under NEPA, "an agency's decision must
be supported by a preponderance of the evidence." See NEPA Law and Litigation, 3 8.07, p. 19.
In challenging an agency decision under NEPA, "a Plaintiff must prove by a preponderance of the
evidence that the EIS is inadequate and that the agency's decision to proceed is arbitrary and
capricious." Guide to the National Environmental Policy Act, p. 137. In other words, the
plaintiff in NEPA cases must show the agency was arbitrary and capricious by a preponderance of
the evidence in order to successfUlly challenge an agency's decision.
With respect to MEPA, Montana Courts look to federal NEPA cases for guidance since
MEPA is patterned after its federal counterpart. While MEPA specifically provides that an agency's
decision may not be set aside unless the court finds "clear and convincing" evidence that the decision
was arbitrary or capricious or not in compliance with the law, it appears that such a burden of proof
has not been applied by the Montana Supreme Court. The Montana Supreme Court has adopted the
Ninth Circuit rule for challenging an agency decision that an EIS will not be prepared. In spite of
the statutory guidance, the Montana Supreme Court has established a significantly lower standard
than "clear and convincing" evidence In addressing an agency's decision under bEPA not to
-1 34- Volume Ill: Public Comment