Public Comment. Volume III - Montana Legislature

projects delayed it is the citizens who rely on the services provided to bear that
additional expense, through higher fees and prices. (Burlington Northern and
Sante Fe Railway Company, Conoco, and the Montana Power Company)
Exhibit 9 from last meeting -- Burden of Proof
The distinction between condemnation by a public entity and condemnation by
a private entity is illusory. In all cases of condemnation, property is being taken
because the public interest requires the taking (7030-1 I), and4he property is
being taken to fulfill that public interest. 'This change would elevate the
interests of a siqgle private individual above those of the public in general. 'This
would completely gut the powers of erninent domain.
This change in the burden of proof is also poorly conceived. For example, the
current burden as it pertains to the greatest public goodlleast private injury
requirement is that the condemnor's decision about the location of the project
will not be overturned except "on clear and convincing proof that the taking has
been excessive or arbitrary," Shara, 61 0 P.2d at 137 citing Montana Power Co.
v. Bokma 457 P.2d 769, 774-75. The proposal is to raise the burden of proof
on the condemnor without changing the burden on the landowner. This
presumably would require ,the condemnor to establish the greatest public
goodlleast private injury requirement by clear and convincing evidence, but
require the landowner to carry the same burden to defeat the showing. That
makes no sense. It is also contrary to the court's view that a condemnor's
choice of location is to be given great weight because it has the expertise and
detailed knowledge necessary to make the determination.
Furthermore, while the right to hold property is highly valued, the right to
acquire property by errrinent domain is also recognized in the Montana
Constitution (Article II, Section 29). As discussed in the Draft Final Report the
power to condemn is "inherent in all sovereign governments and, if not checked
by constitutional and statutory provisions, is limitless." Draft Final Report, p. 47.
'The justification for changing the burden of proof presumes that the power to
condemn abridges landowner's rights; in fact, condemnation statutes abridge
and limit the state's otherwise limitless and paramount power to condemn for
the public good. Finally as discussed at the recent hearing, logic would require
an even higher burden of proof on the landowner than clear and convincing.
Since there is no higher burden of proof then the court is left with the dilemma.
(Express Pipeline)
Cenex supports the findings and recommendations of the study, as presented
in Chapter 7 of the draft Report. (Cenex)
EQC Eminent Domain Study -39-