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Whose property line is it anyway?


Landowners from across the state believe that the process of eminent domain—taking over private property for a purported public good—needs to be changed in Montana.

But despite pressure from agricultural interests, the Montana AFL-CIO, and the Billings-based Northern Plains Resource Council, the 1999 Legislature failed to approve any of the four reform-minded bills that surfaced during the last legislative session. Instead, lawmakers told their Legislative Environmental Quality Council to study the issue and report back before the 2001 session.

During one of the council’s public hearings last week in Missoula, frustrated landowners said the state’s eminent domain statutes, first enacted in 1877, need to be updated to protect their rights and reflect changing times.

Industry representatives, however, said the current laws are working just fine. But, they noted, if the public wants changes, state lawmakers clearly have that option.

“Public use is anything that the Legislature says it is,” said John Alke, an attorney representing Northern Border Pipeline and Montana-Dakota Utilities Co. “There is no right answer. There is no wrong answer. If you want to stop the construction of pipelines, then you say pipelines cannot condemn land. If you want to stop the construction of railroads, then you say railroads cannot condemn. The Legislature decides.”

Montana law gives a broad array of corporate and governmental interests the power to condemn property, no matter who owns it. Included in a long list of uses considered vital to the public good are public buildings; canals, ditches and dikes; water, sewer and gas lines; many types of roads; docks and piers; powerlines; railroads; and even gravel pits. Consistent with Montana’s history, mining and logging companies are in many cases given wide latitude to use private property to extract resources and expand their operations.

While landowners must always be compensated for their property, reformers argue that the power to condemn is too heavily weighted toward corporate interests.

“You put your whole life into your land, and then you are faced with having to hire and pay all of these lawyers to defend yourself,” said Betty Thisted, a Ninemile Valley resident whose family is fighting a proposed Yellowstone Pipe Line Co. re-routing across their land.

Reform advocates note that when private entities want their projects to cross state lands, easements are typically used instead of title changes. The state also requires developers to sign agreements taking full responsibility for any damages they cause on the property. But developers who take title of private land can often skirt damage claims. They can also sell the condemned land to whomever they choose.

“There are no protections for private landowners like there are for public land,” said Paradise-area resident Robert Lund. The legislative panel, chaired by Sen. Mack Cole (R-Hysham), will conduct a mid-term organizational meeting in Helena on Feb. 24. Another public hearing on the issue will take place March 23 in Billings.


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