Public Comment. Volume III - Montana Legislature

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Rockwood Brown C.J. Gabeje Jr. Angus B. Fultan Steven J. Hamurn 'ohn J. Russell ;imoth A. Filz ~ichac!~. Hainger Guy W. Rogers Scott G. Gratton Don -YIBoMa .Hayes Lisa A. Rodeghiao James E. Robats William A. D'Altan Of Counsel John Walker Ross John A. D od 1949-1 998 3 15 North 24th Street P.O. Draw 849 Billings, Montana 59 103-0849 Phone 406.248.26 1 1 Fax 406.248.3 128 Joe Gerbase 406.247.2814 j g ~ b r o ~ . c o m April 1 1,2000 MEMO TO NORTHERN PLAINS RESOURCE COUNCIL & ENVIRONMENTAL QUALITY COUNCIL SUBCOMMITTEE ONGEMINENT DOMAIN I have been asked to write a memo on behalf of the Northern Plains Resource Council in regard to state deliberations concerning eminent domain. I base this memo on my experience as an attorney in real property matters as a whole and specifically in my experience in eminent domain cases specifically. There are two issues which are of particular concern to Northern Plains. The first is whether a condemnor should be restricted to an Easement interest only unless some heightened burden of proof is met. The second is whether or not condemnor should be restricted from transferring use interests in the condemned property to third parties. These issues will be discussed individually after presentation of an irrefutable and compelling public policy consideration. By presenting this public policy consideration, I hope that the intelligence of the Environmental Quality Counsel members won't be insulted. However, it is so basic and so compelling that all considerations hereunder turn on it. Therefore, I must go into it. Simply put, eminent domain is a necessary but extraordinary power. It allows the government and.other private third parties to take a person's propeity against the person's will. It doesn't matter a wit that the person is justly compensated. The extraordinary part is the taking against his will . When the government authorizes such an extraordinary taking, rules of fairness, equity, good conscience and the constitutional guarantee of "acquiring, possessing and protecting property" found in The Constitution of the State of Montana Article 11, Section 3. dictate that the taking be the least limited taking possible which allows the condemnor to reasonably hlfill its needs. 1. All condemnors should be restricted to the taking of an easement only, unless it is proven in court that the special need of the condemnor requires a taking of fee -60- Volume Ill: Public Comment
BROWN LAW F w P.C. Page 2 April 1 1,2000 simple title. The vast majority of eminent domain matters are handled through private negotiations. Most of those are done by land owners who don't even consult their lawyers. Simply put, fee simple title is normally given up without even considering theconsequences. In litigation many of condemnation cases are result in a fee simple title taking. The Condemnors file their cases seeking fee simple title and support their claims with simple proof of their needs to use the land being taken, as a pipe line for example. At this point the burden shifts to the Condemnee to prove that there is no need for a fee simple taking and that an easement interest is sufficient. The courts then make their decisions, under the power conferred under Section 70-30-206, MCA which allows courts to "limit the interest in real property sought to be appropriated if in the opinion of the court the interest sought is not necessary." There is nothing in this statute is which creates a presumption that ~Q to reasonablv fulfill their needs. There is nothing in this statute which mandates that condemnors, who privately negotiate takings, do so as easements, unless they get a court order which allows them to do otherwise. There are practical reasons why the more limited easement taking should be required unless a court finds that a fee simple taking is required: A Easements by their vary nature revert to the owner of the fee when they are abandoned; B. Easements through non use are be deemed abandoned; C. Easement uses are spelled out in the written easement and through rules of construction are restrictively interpreted against the grantee; D. Easements don't restrict the fee owner from using the easement area, as long as such use does not unreasonably burden the use of the grantee; E. Easements which bifircates a land owner's property by a ribbon of land, create less of a question as to the land owner's right to cohesively use his property as a whole; and F. Easements which separate the land owner's property by a ribbon fiom adjoining leasehold interests, water sources and fiom points of access, create less questions at to the land owners continued rights of access. In each of the considerations A. through F. the burdens through easements are less onerous and are fraught with less legal questions than fee simple takings. For all of these reasons, Section 70-30-206, MCA and the related statutes should require that all takings, should be by easement, unless a court order allowing that fee simple be previously entered. This would not in any way restrict potential condemnors fiom obtaining what they need and would in fact place any inconvience caused upon the party who should shoulder it- - the condemnor. EQC Eminent Domain Study -61 -
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Public Benefits and Private Rights:
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Helena Public Hearing. December 1.
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The Eminent Domain Subcommittee (Su
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The location of the right-of-way of
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land to locate the pipeline. She ad
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in a case in Illinois a pipeline wa
Page 13 and 14: REP. MCGEE questioned who would pay
Page 15 and 16: PUBI-IC COMMENT - BILLINGS Dena Hof
Page 17 and 18: use the power of eminent domain sho
Page 19 and 20: were no answers provided. 'The Legi
Page 21 and 22: telecorr~munication lines, and rail
Page 23 and 24: EMINENT DOMAIN DRAFT STUDY REPORT P
Page 25 and 26: certain criteria for State and Fede
Page 27 and 28: Exhibit 6 from last meeting -- Requ
Page 29 and 30: circumstances, which is exactly wha
Page 31 and 32: ight to all of the surface damage p
Page 33 and 34: I support eminent domain reform. I
Page 35 and 36: of Property" should also be rejecte
Page 37 and 38: that only a very few condem~iations
Page 39 and 40: approved use, the bill should requi
Page 41 and 42: While we don't believe this legisla
Page 43 and 44: projects delayed it is the citizens
Page 45 and 46: the subcommittee have been clear th
Page 47 and 48: Cenex supports the findings and rec
Page 49 and 50: up front. State and federal governm
Page 51 and 52: Cenex supports the findings and rec
Page 53 and 54: draft legislation, which does the f
Page 55 and 56: -The "Necessity/Public Interest" is
Page 57 and 58: I support eminent domain reform. I
Page 59 and 60: e used as a guide to better underst
Page 61 and 62: MEIC's testimony at the December 1,
Page 63: Northern Plains Resource Council Ma
Page 67 and 68: BROWN hw P.C. Page 4 April 1 1, 200
Page 69 and 70: Page 2 March 3 1. 1000 3. Yearly fe
Page 71 and 72: Montana Environmental Quality Counc
Page 73 and 74: The five eminent domain reform bill
Page 75 and 76: Lee, Krista From: 3ent: To: Subject
Page 77 and 78: mlt~ Montana Independent Telecommun
Page 79: THE .. *I& i k end o* CQALITBON Jan
Page 82 and 83: knowledgeable buyer will pay and a
Page 84 and 85: volume gasoline pipelines at the ti
Page 86 and 87: January 23, 2000 Krista Lee Environ
Page 88 and 89: 3. The land value be based on whate
Page 90 and 91: NFW SECTION, Section 1. Limitation
Page 92 and 93: Memorandum TO: Aaron Browning FROM:
Page 94 and 95: MEMORANDUM MONTANA DEP~TMENT OF '+
Page 96 and 97: v 6 - c U :Preferable, maybe. Desir
Page 98 and 99: Public water supply wells susceptib
Page 100 and 101: Lee, Krista From: Alan Roiston [ala
Page 102 and 103: 11. Whether a condemning corporatio
Page 104 and 105: BULL MOUNTAIN LANDOWNERS ASSOCIATIO
Page 106 and 107: APR- 3-00 MON 1145 PM THE PRINTERY
Page 108 and 109: . . . . . . . . . . . .. . . . . .
Page 110 and 111: Environmental Quality Council March
Page 112 and 113: Northern Plains Resource Council Ma
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These examples illustrate that clea
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is not already appropriated to some
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Schoro v. Anaconda Co., 187 Mont. 3
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the abuse. But the changes being co
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DM1 ASPEN BOWER - COLORADO SPRIIUq
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HOLLAND & HART ATTORNEYS AT LAW LLP
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Environmental Quality Council April
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GOVERNOR SI.ARC R\CICOT HOCSE SIESI
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ROCKER SIX CAlTLE CO. HC 84 BOX 205
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Hi Krista, This letter is in regard
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NA COAL COUNCIL 01 COLONIAL DRIVE H
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03/31/00 FRI 11:18 FAX 1 406 761 83
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BROWNING, KALECZYC, BERRY & HOVEN,
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EQC Eminent Domain Subcommittee-Pub
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No matter what. No criteria is appl
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On the issue of the use of taken la
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3UDcommlttee-Pu blic Hearing WALLAC
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h.VC Lvl~ll~ent Oun~will Subcummitt
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1. hcgv Conservation. (Using less e
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In conclusion, it is important to r
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changed. Thosc who seek to condemn
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*.I - EQC Eminent Domain Subcommitt
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ights-of-way along with other uses,
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STANDARD CORM 199 Pr*9c*bd by DOz/U
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Other exemptions, waivers, or reduc
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-168- Volume Ill: Public Comment U.
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Ensuring just compensation: In most
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company by statute, in order to obt
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Crude Oil and Petroleum Products Pi
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Mitigation Measures #2 (State and F
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Burden of Proof EQC Eminent Domain
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EQC Eminent Domain subcommittee May
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TABLE OF CONTENTS . Section Page 10
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PROPOSED MASTER MITIGATION POLICY.
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DRAFT, 4/9/8 5 Indirect .land loss,
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DRAFT, 4/ 9/8 5 (5) Impacts During
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DRAFT, 4/9/85 the possibility of es
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DRAFT, 4/9/85 21) LARRS requests th
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DRAFT, 4/9/85 11 impacted communiti
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DRAFT, 4/9/85 13 appropriate . agen
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DRAFT, 4/9/85 ( 2 Strict speed limi
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DRAFT, 4/9/85 (5) A program of nois
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DRAFT, 4/ 9/ 8 5 b, Local. ambulanc
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DRAFT, 4/9/85 21 tion and operation
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DRAFT, 4/ 9/ 8 5 23 ces . These per
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DRAFT, 4/9/85 (a) quality (b) formi
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DRAFT, 4/9/85 27 tify new winter ra
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DRAFT, 4/9/85 29 of these individua
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DRAFT, 4/9/85 2. Topsoil should.. b
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DRAFT, 4/ 9/8 5 33 district ;would.
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DRAFT, 4/ 9/ 8 5 - and/or operation
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EQC Eminent Domain Subcommittee May
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Miles City Fish Hatchery Impact Ana
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Impact Analysis Studies and Propose
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'. ATTACHMENT A 'VIBRATION AND IMPA
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Study Plan Page 2 . As a condition
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Study Plan Page 4 Lab Tests -Target
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Study Plan Page 6 Information neede
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Study Plan Page 8 Rcfcrcnce List Be
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United States Department of the Int
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Bobbi Keeler, FA Coordinator 3 Idea
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EQC Eminent Domain Subcommittee DEP
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Robert Ochsner April 5, 1994 Page 3
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. Robert Ochsner April 5, 1994 Page
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Memo--Marylee Norris, John North Fe
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EQC Eminent Domain Subcommittee May
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Public Comment. Volume III - Montana Legislature

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