Update: Oral argument audio posted above.
The condemnation of privately owned utilities is a thing these days. Seems like many local governments believe they can do it better than the private owners, and exercise the eminent domain power to force the acquisition. But in these cases, isn't the property already being put to public use? Indeed, the exact same public use?
This morning, the Montana Supreme Court is hearing oral arguments in a case we've been following that will address the meaning of the phrase "more necessary public use" in Montana Code Annotated § 70-30-111 and and what kind of proof is necessary to support such a claim. The city of Missoula is attempting to condemn Mountain Water Company, a private company which supplies municipal water to the city. The company (and its employees) object.
The Supreme Court oral arguments are being live streamed here, so you can follow along in real time. If the video is archived, we'll update this post with the link.
The trial court bought the city's argument that public ownership of the water company is "more necessary" than private ownership, and in this order upheld the condemnation. The company appealed, and the Montana Supreme Court narrowed the issue to the meaning of the statutory requirement that "[b]efore property can be taken, the condemnor shall show by a preponderance of the evidence that the public interest requires the taking based on the following findings: ... if already being used for a public use, that the public use for which the property is proposed to be used is a more necessary public use." The court also asked for argument about the effect of its earlier opinion in City of Missoula v. Mountain Water Co., 228 Mont. 404, 743 P.2d 590 (1987), which considered the same city attempting to take the same utility. As you can see by the date of the opinion, this controversy has been going on for some time.
The city argues (and the trial court agreed) that public ownership itself is enough to show a "more necessary" public use, while the water company asserts that the city needed to have shown that it would actually be more beneficial to the public to have the city own it.
Here are the briefs of the parties and amicus:
- Appellants/Intervenors Opening Brief
- Carlyle Infrastructure Partners Opening Brief
- Appellant Mountain Water Co's Opening Brief
- Amicus Curiae Brief of United Property Owners of Montana
- Appellee City of Missoula's Answer Brief to Mountain Water Company (Dec. 9, 2015)
- Appellee City of Missoula's Answer Brief to Mountain Water Company (Dec. 11, 2015)
- Appellee City of Missoula's Answer Brief to Employees of Mountain Water Company
- Appellee City of Missoula's Answer Brief to Carlyle Infrastructure Partners
- Appellants/Intervenors' Reply Brief
- Carlyle Infrastructure Partners Reply Brief
- Appellant Mountain Water Co's Reply Brief
Here's the Montana Supreme Court docket. More background on the case here.
We'll have more when a decision is rendered.