Privatizing eminent domain


The Montana House of Representatives recently voted to pass on to the Senate House Bill 198, which would give persons the right to use eminent domain to condemn private land once a corporation is granted a certificate under the Major Facilities Siting Act. If the Senate allows this bill to become Montana law, they set a dangerous precedent for the private property rights of all Montanans.

HB 198 would give the right of condemnation, without need for good-faith negotiations, to persons who will use the land they condemn to make a profit. The taking of property for a person’s profit differs fundamentally from a governmental taking of property for the public’s use. Why should Montana landowners have to subsidize these profits for other entities? The profits earned by these persons, who could be from another state or even country, will be exported from the state as surely as the energy that flows through their structures crossing Montana’s landscape.

A delicate balance exists between private property rights and the need for public taking of such property through eminent domain. Eminent domain should be a last resort, used by a governmental agency or a person only when negotiations with the owner of the desired property have broken down. When the landowner has no ability to negotiate the taking of their property, for a profit-making venture by a non-governmental entity, it is inevitable that the market value of that property, for the purpose it is being taken, will not be realized. The “market value” that the takers of the property will assess will be based on current agricultural land uses, not the industrial use for which the land is taken, and won’t consider the added liability and loss of control of the property to which the landowner is subjected after condemnation.

Sandy Barnick


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