Public Comment. Volume III - Montana Legislature

LC 7034: This proposal apparently requires a condemnor to show by a
preponderance of the evidence that the project is in the public interest.
Presently under Montana law the allowed uses for condemnation are specified
in statute. If condemnation is sought for one of the permitted uses then it is
allowed assuming the condemnor can satisfy the other requirements of the
statute. I believe the existing procedure is satisfactory and in fact superior to
the suggested change.
A significant advantage of the existing procedure is certainty. The statute
spells out exactly what public uses qualify under the Eminent Domain statutes.
LC 7034 would eliminate that certainty, and leave the determination of what
projects qualify for eminent domain to a judge or jury made on a case by case
or ad hoc basis. Allowing a jury or a judge to determine whether a project is in
the public interest will result in inconsistencies in application of the law. For
example, a jury in one location may think a mine, a road, or a highway is in the
public interest whereas in another location where 'the project was more
controversial, a different jury presented with similar facts may disagree.
Compounding the uncertainty is the fact that public interest is not defined.
While it may be possible to craft a definition of public interest, it would have to
be so broad and therefore vague it would be virtually meaningless insofar as
providing any reliable standards.
The suggested change also fails to address which court would have the
authority to make the determination that a project is in .the public interest. Many
projects such as highways, power lines or railroads stretch over several judicial
districts. Obviously a condemnor should not be required to obtain a
determination that the project is in the public need from each of the judges in
the judicial districts affected by the project, yet I see no basis to arbitrarily
designate a a particular judge to make that determination. There is no such
problem with respect to determination of just compensation, because each
parcel of property has its own ur~ique characteristics which affect value, and
those characteristics can be recognized in determining just compensation.
Finally, under the suggested change, the decision of whether the project is in
the public interest would presumably be subject to review by an appellate court
thereby delaying planning and increasing the cost of the project. (Holland &
Hart)
We agree with the finding and draft recommendation as outlined in the report.
(W ETA)
Montana Petroleum Association believes the Subcommittee's "Findings" and
"Draft Recommendations" fairly represent and balance the evidence presented
to the Subcommittee. (MPA)
-50- Volume Ill: Public Comment