Public Comment. Volume III - Montana Legislature

No matter what. No criteria is applied to proposals by private companies, largely
unregulated by the state and accountable to no one but their own investors, to build these
projects using our land. Ted Turner could propose to build a railroad across Rep. Tash's
property to haul his buffalo to market and it would be considered a public use under
eminent domain. I can mine vermiculite or gold next door to Sen. Stang's property, and
take his property under eminent domain for my waste dump. By virtue of being in the list
it is, on its face, a public use.
Ladies and gentlemen, this is absurd! Please, we ask you to restore some
common sense to the definition of public use. We encourage you to change the law and
enact some criteria so that only those projects truly in the public interest and necessity
have eminent domain power. These criteria may either be applied by the court when
adjudging a preliminary order of condemnation, or, more appropriately, be a finding by
elected officials accountable to the voters, such as the Board of Land Commissioners,
that the proposal is indeed a public use.
We support the proposal to remove hard rock mining fiom the list of public uses
for which eminent domain may be used. The state does not allow coal mines to use
eminent domain, and hard rock mines should not be treated any differently.
There must be a higher standard for taking ~rivate ~romrtv. As the population
grows and the demands for true public uses are greater, there will be more and more
pressure to confine rights of ways to comdors. The unlucky landowners who happen to
be on the comdor deserve carell and thorough protection.
Also important to landowners is the issue of getting the land back after it has been
taken. While some highways may last forever, many pipelines, powerlines, and railroads
will become abandoned or replaced by other uses. The eminent domain law currently
says that this land is supposed to revert back to the original landowner or their successor
in interest. We are concerned that there is no mechanism in the law that triggers this
reversion. The land could sit idle for years, not being used by the condemnor, when it
should be returned to the condemnee. To solve this, we propose you do two things:
First, enact the provision like Wyoming's, which would revert the
taken land to the condemnee after five years of non-use. And we
suggest you go farther, and give the landowner standing to bring an
action in court to get their land back if it has been abandoned.
Second, enact a due diligence clause so that no one may take private
property for a project, and then never build it. There are due diligence
clauses in the state and federal coal mining laws, and we suggest you
look at that language for guidance. It isn't fair that speculators can
virtually depress the value of land by indefinitely hanging a proposed
development over the title of property.
One major concern for private property rights supporters is that the eminent
domain law doesn't require that damage to our land be mitigated. The law says that the
act of taking private property should be the least private injury for the greatest public
-138- Volume Ill: Public Comment