Public Comment. Volume III - Montana Legislature

subcommittee
DEPARTMENT OF STATE L1 May 4,2000
Exhibit 15
ENlTi AVENUE
April 13, 1994
MEMORANDUM-Revised
TO:
Marylee Norris, John North
FROM:
Roy Andes, Agency Counsel
R # L
RE:
ISSUE:
Meridian mine--condemnation authority for rail spur
Whether Meridian minerals correctly asserts the legal authority to use
eminent domain for acquisition of rail spur rights-of-way
Factually I understand that Meridian plans to create a rail spur to be used for
hauling coal and otherwise servicing the coal mine. The spur will not otherwise be
used for freight or passenger transportation by any other persons or businesses. In
other words, it will not be available for hire.
The issue is whether Meridian must buy all the land for the spur from
consenting sellers, or whether it may exercise eminent domain powers and compel
land sales at judicially determined values.
The power of eminent domain, often called condemnation, is a sovereign
function of government exercised on behalf of various public purposes. Nichols on
Eminent Domain, 93.1 1 [I]. The state may by statute delegate the power to public
or private entities to carry out designated activities. Ibid. This power to delegate
resides exclusively in the legislature. Nichols, 9 3.21. The delegation to private
corporations "..must be conferred in express terms or by necessary implication.."
Nichols, 93.21 [4].
"One of the most firmly established principles of the law of
eminent domain is that the burden is on a party seeking to exercise the
power of eminent domain to show a warrant from the legislature either
in express terms or by necessary implication ... The burden is also on the
condemnor to show that it is acting within the scope of statutory
power." Nichols 93.21 3.
"Even when the power has been expressly granted, the grant, itself, and
the extent thereof will be construed strictly against the grantee. The latter will
not be allowed to take the lands of another unless such right comes clearly and
YN EOUAL OPPORTUNITY EMPLOYER-
EQC Eminent Domain Study -257-