Public Comment. Volume III - Montana Legislature

Ensuring just compensation:
In most cases, eminent domain is used to take corridor out of a larger piece of property.
The remaining property is usually substantially devalued and may include small, largely useless
parcels split off by the right-of-way. A classic example is a railroad right-of-way that blocks
access to water.
In recognition of the often permanent disruption of agricultural operations and the loss of
quality of life imposed on property owners, (both of which are difficult or impossible to
quantify), compensation for devaluation of the remaining property should be greater than the
dollar amount of the devaluation. That dollar amount should be doubled or tripled, or increased
by some other percentage established by the legislature.
Also, in addition to compensating landowners for the fair market value of..the property
taken, compensation for damages should be readjusted up to one year after construction has
been completed. A similar requirement exists in Colorado law to ensure that landowners receive
just compensation if damage turns out to be greater than originally projected.
As provided for under Wyoming law, landowners should have the right to demand
amortized annual payments instead of a lump sum payment.
For incidents that may occur in the course of industrial use of the right-of-way, such a
train-caused fires or pipeline leaks, landowners must have the same rights to seek compensation
as are granted to government in comparable cases of damage to public lands.
Making eminent domain a privilege, not a right:
The power of eminent domain should be a privilege, not a right. The original landowner
should retain as many rights and as much control over their land as possible.
Developers should only be given the power of eminent domain if they can prove they have
the resources to operate responsibly. Anyone seeking to develop a project on others' property
must be required to register with the Secretary of State and disclose their financial solvency. If
the developer cannot prove the ability to fully construct the project,, mitigate damages and post a
performance bond, they should not be granted the power to condemn.
As required under Wyoming Law, when the state grants the power of eminent domain for a
particular project (such as a railroad), the developer should not have the right to use the land for
other projects (such as a pipeline) without first renegotiating with landowners.
Landowners should have the choice of granting an easement rather than selling title to the
right-of-way. As required when industrial right-of-ways cross public lands, all liability for
damage to land or water must lie with developers and operators, regardless of whether the
landowner retains title. (HB355, Sponsored by Rep. Taylor, R-Busby 1999)
A right-of-way should automatically revert to the original owner if project construction
does not begin within three years of condemnation. As provided for under Wyoming law, a
right-of-way should also revert to the original owner after abandonment or five years of non-use.
Giving landowners the right to retain possession:
When landowners go to court to fight condemnation, or to appeal for changes to a
developer's plans, they should have the right to keep control of their land until all court
proceedings are concluded. Possession is nine-tenths of the law, and courts are far less likely to
restore private property to a landowner once it has been taken and the project is already under
construction. (HB 354, Sponsored by Rep. Lindeen, D-Huntley 1999)
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