Public Comment. Volume III - Montana Legislature

Exhibit 6 from last meeting -- Requirement for completion of EIS or EA
1. This proposal is likely to have negative unintended consequences for
landowners and it seems to misunderstand typical mitigation measures. The
federal government, in order to fulfill its public trust, vol~~ntarily imposes
restrictions on the use of its land that private landowners are not required to
irr~pose on theirs. Many of the NEPA and MEPA standards may be
incompatible with private land holdings. For example, a typical EIS is careful to
identify potential impacts of proposed projects on fish, wildlife, and native
vegetation, and is particularly concerned with nesting, spawning, and other
sensitive areas.
When private land is condemned, the issues to be addressed are whether the
siting of the proposed project accomplishes the greatest public good with the
least private injury (70-30-1 1 O), and whether the use is authorized by law and
the taking is necessary to the use (70-30-1 11). Private landowners would not
be well-served to invite additional scrutiny. Imposing NEPA mitigation
measures on private lands could result in burdens on the land beyond those
entailed in the granting of an easement.
2. The EIS process is the procedural equivalent of the private property
condemnation process. Prohibiting these two procedures from occurring
simultaneously will extend unnecessarily the time required to proceed with a
project that requires the condemnation of both public and private property.
3. The condemnor already has to establish that the use it seeks to make of the
property is authorized by law (70-30-1 11 (1)).
4. The provision would overrule the Montana Supreme Court decisions in
Cenex Pipeline LC v. Fly Creek Angus, Inc. and Shara v. Anaconda Co., both
of which rejected the argument that condemnation could not occur until
necessary governmental approvals were obtained. Shara, which considered
whether the condemnor should first be required to obtain a mining permit states
that such a requirement would be "contrary to the public policy of providing
expediency in eminent domain proceedings." (Express Pipeline)
• Exhibit 7 from last meeting -- Mitigation Measures
As with Exhibit 6, this seems to misunderstand typical mitigation measures.
Some MEPNNEPA mitigation measures may be corr~patible with private
property, but some clearly will not be. There is already a requirement that
condemnation be for a use authorized by law. All this proposal does is to
potentially require inapplicable and wasteful (possibly even counterproductive)
EQC Eminent Domain Study -23-