Public Comment. Volume III - Montana Legislature

Memo--Marylee Norris, John North
February 16, 1993
Page 2
unmistakably within the limits of the authority granted." Nichols, 53.21 3 [I]. .
Thus, the question becomes whether either the Congress or the Montana legislature
has delegated condemnation authority to Meridian.
the Montana Legislature
I have reviewed all Montana statutes I could find from the Code index. Given
the code's imperfect index structure, it remains possible there are other statutes my
search did not disclose. If so, my conclusion may be in doubt.
Based on the statutes I found, it seems clear that if Meridian qualifies as a
"railroad" under 5 570-30-102(4) 'or 77-2-101 (2), it may exercise eminent domain
powers andlor be granted an easement to cross state lands. Id. or 5 569-14-1 01,
102, MCA.
569-14-552 directly empowers railroads to to condemn land for rights-of-way.
In order to qualify as a railroad, however, they must be a "common carrier" as that
term is generally understood and they probably become subject to ICC authority, since
that chapter of the code applies only to "common carriers." 569-14-102. 1 have not
researched what constitutes a common carrier.
Neither Chapter 30 of Title 70 nor Chapter 2 of Title 77 defines "railroad."
Meridian may have an argument that it qualifies as a "railroad" by virtue of the broad,
open-ended definitions of 5 561 -1-317, and 69-12-101, and the maxim that terms
once defined in the Code are deemed defined the same way throughout. Those
sections, however are both within acts imposing public regulation on "railroads." In
light of the strict construction against grants of eminent domain powers, it does not
seem plausible to me to assert that disconnected legislative definitions of "railroad"
for purposes of imposing state regulation are intended to be synonomous with the
granting the public power of eminent domain.
By the same token, 569-14-101 also defines "railroad," and could be equally
argued to be applicable to other disconnected parts of the Code. By contrast,
however 569-14-101 's definition includes only "common carriers." 969-14-1 02. .
Since this Chapter's provisions are the only one's giving explicit eminent domain
powers to railroad-type entities, the absence of any clear, or even implicit intent to do
so in other parts of the code suggests this statute covers the issue. Nichols' strict
construction argument should prevail. Nichols, 53.21 3 [I].
Assuming, therefore Meridian will NOT qualify as a "common carrier," I can
find no other authority in Montana statutes for it to exercise eminent domain power.
Montana law expansively gives that power to hard rock mining activities, including
access, refining, smelting, reclamation, and waste disposal activities. 570-30-102,
subsections (4) & (5), MCA; see 582-2-221 , MCA and Kipp vs. Davis-Daly Copper
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