Public Comment. Volume III - Montana Legislature

EQC Eminent Domain
Subcommittee-Public Hearing
March 23,2000
Exhibit 13
Eminent Domain Ref01-111s
For Private Property Protection
Summary of Reform Package Proposed by NRPC
Before the Environmental Quality Council
Billings 3123100-
For many decades, Montana landowners have been exploited and their land, water and
other property unnecessarily damaged under the state's antiquated, 123-year-old eminent domain
law. Working with NPRC, landowners from across the state have developed the following
platform of eminent domain reforms to ensure fair treatment for landowners whose property is
- crossed by public or private industrial rights-of-way. Where noted, proposals similar to these
have already been enacted into law in other states. ALSO, where noted, some of the following
reforms were proposed in legislation introduced during the iggg Legislature.
Minimizing damage to private property:
Central to the eminent domain law is the principle that a project must do minimum damage to
private property while providing maximum public benefit. However, in reality, under the threat of
condemnation landowners find they have little or no say in picking the least damaging route for a
right-of-way across their land. Landowners then find they must aggressively watchdog the project
to ensure proper construction and reclamation. Even then, reclamation is often highly inadequate,
resulting in weed infestations and many other problems.
In contrast to rights-of-way across private lands, developers are held to much higher
standards and must comply with much stronger land and water protection requirements on the
public lands they cross.
To ensure full and equal protection of land, water and other property, private property should
be given the same level of protection required on public lands. For every project, the law should
require that a mitigation plan is developed through a process that includes public comment. The
state should monitor each plan and publish annual monitoring reports. Most important, if the state
fails to enforce a mitigation plan, citizens must have the right to go to court to require enforcement.
As required for pipelines developers under Colorado law, any private industry developing a
right-of-way in Montana must post a reclamation bond.
Determining true public use:
The law should not presume that every pipeline, railroad, powerline or mine serves a
public purpose that justifies the taking of private property. When a developer wants to take
private property under the eminent domain law, they should have to show clear and convincing
evidence that they are taking it for a truly public use. Public use should be determined on a
case-by-case basis under criteria established in law.
If the project is not a legitimate public use, then the developer should not be given the
power to threaten condemnation when negotiating with landowners. They should be required to
negotiate with landowners on a level playing field.
Specifically, hard rock mines should not get special treatment under the law. Currently,
Montana law does not grant the power of eminent domain to any other kind of mine.
EQC Eminent Domain Study -1 69-