Montana Eminent Domain Law

Summary of the Montana Eminent Domain Law

Few issues evoke such strong opposition as the taking of private land through eminent domain for a public use. When it comes to eminent domain, the government is playing in their arena; they do this every day. They know what the rules are, they know how the rules affect them and they know how the rules affect property owners. If the government is taking your land, make sure that you become informed so that you know what you can and cannot do.

Your initial question might be, can I stop the process? In most cases, you won’t be able to prevent the government from acquiring your land, but you are entitled to just compensation under eminent domain law. Learn more about eminent domain generally and what you’re entitled to receive, or continue reading to learn about the Montana eminent domain process, your rights as a property owner and hiring a Montana eminent domain attorney.

Did you know that most eminent domain attorneys work on a contingent fee basis? With this fee structure, the attorney assumes the risk of earning a fee. Also, the government or condemning authority may be required to pay a property owner’s attorney’s fees if certain criteria are met.

Montana Eminent Domain Process

In the state of Montana, the eminent domain process can only be stopped if the proposed taking does not meet the requirements for public purpose or public necessity. If you have determined that the proposed taking does meet these requirements, then you should learn more about the Montana eminent domain process.

Remember, even if the government has the right to condemn your property, they cannot dictate the price they are willing to pay; compensation is determined by the highest and best use laws for your property.

Montana Property Rights

The eminent domain abuse dialogue often centers on policy issues involving the right to take property for economic development and blight. Since the landmark case of Kelo v. City of New London in 2005, many states have taken measures to help curb eminent domain abuse. Some states were very successful at passing meaningful reform, and other states failed to pass any legislation at all. Most states fall in the middle by passing legislation that looks good on paper but does little to level the playing field between property owners and the government.

Since the decision by the United States Supreme Court in Kelo v. City of New London many states across the country have taken measures to help protect the rights of private ownership.  The controversial Kelo decision held that a local government can take the private property of one person and give it to another private entity.  While the Court’s ruling was seen by many as a serious blow to citizen’s constitutionally protected rights of private property ownership, the decision prompted a number of states to initiate legislative reform to help curb eminent domain abuse.

The Castle Coalition has released a report, grading each of the states based on their efforts to protect private property owners and their rights based on changes in their respective state laws.  The Castle Coalition is the Institute for Justice’s nationwide grassroots property rights activism project that teaches home and small business owners how to protect themselves and stand up to abuse by governments and developers who seek to use eminent domain to take private property for their own gain. The Castle Coalition gave a letter grade of a D to the state of Montana for property rights.

In 2007, the Montana legislature passed two bills that addressed the state definitions of public use and blight. Unfortunately, the loose and vague language did not provide much protection for property owners.

Senate Bill 41 provided additional language to the state’s definition of blighted areas, but the newly added language did not provide sufficient improvement and still allows a condemning authority to find loopholes to get around the bill. Senate Bill 41 also removed a 10-year private transfer limit for private properties, making it easier for private developers to acquire land for private developments.

In addition to Senate Bill 41, Senate Bill 363 was passed, which attempted to tighten the definition of public use for the state of Montana. Unfortunately, the bill ceased to provide much help. Senate Bill 363 removed some vague language and attempted to tighten the definition of blight, but words like “deterioration” and “age obsolescence” are still within the state constitution.

Hiring an Eminent Domain Attorney in Montana

If your instincts tell you that the offer from the government is low, then it probably is. However, determining just compensation often requires an attorney to identify damages and help guide you through the Montana eminent domain process. Additionally, other experts are needed such as an appraiser and maybe an engineer or planner to provide evidence and expert testimony on your behalf.

Most eminent domain attorneys work on a contingent fee basis. With this fee structure, the attorney assumes the risk for earning a fee. Property owners are generally only responsible for paying costs, with the primary cost being the appraiser who values the property. Because of the contingent fee structure, most eminent domain attorneys will conduct a free case evaluation for property owners prior to recommending representation.

Are my Attorney’s Fees Recoverable for Eminent Domain in Montana?

Property owner’s attorney’s fees and costs may be paid for by the government or condemning authority in Montana if the property owners’ final award is higher than the final offer made by the condemning authority prior to condemnation (MCA 70-30-305(2). Reasonable attorney’s fees and expenses are based on customary hourly rates for an attorney’s services, and may not exceed the customary rate for the services that an expert witness in the same county may provide (MCA 70-30-306). Also, attorneys fees and costs could be recoverable when a claimant is successful in pursuing an inverse condemnation claim (Rauser v. Toston Irr. Dist., 565 P.2d 632, 640-41 (Mont. 1977)).

Very few attorneys can claim expertise in the area of eminent domain law. If you’re affected by eminent domain, you should obtain a consultation from an eminent domain lawyer so that you know and understand your rights before taking any action. Remember, the government is like any buyer, they will want to purchase your property as cheaply as possible, and their appraisers may neglect to consider damages that can lead to a larger amount of just compensation. 

Summary

Although the state’s attempt to pass new legislation began positive reform in the state of Montana, the state still needs tightened definitions of public use and blight. In order to ensure protection for property owners, state legislators must work to pass amendments that do not allow loopholes for private developers to get around. In addition, a timed enforcement on private to private property transfers will undoubtedly help curb eminent domain. Click to read more about Senate Bill 41 and Senate Bill 363.

In 2013, the Montana legislature passed HB 417, which sought to expand property rights by clarifying and expanding their eminent domain procedures.  Although it failed to tighten the definition of public use and blight, it did expand property rights slightly in the area of attorney fee recovery.  Under Montana eminent domain law, the government or condemning authority must make a final written offer to property owners prior to initiating the eminent domain process.  As a result of HB 417, this offer is now used to calculate attorney fees and cost reimbursement to landowners who are successful at pursuing a just compensation eminent domain claim.  Prior to HB 417, the final offer issued by the government after the property owner appealed the commissioner’s award was used to calculate fees.

Although HB 417 improved their eminent domain process slightly, the legislature could help level the playing field between property owners and the condemning authority by tightening the definition of blight and public use.