Wednesday December 18th
TO: John Lawton, City Manager
FROM: David V. Gliko, City Attorney
DATE: December 11, 1996
SUBJECT: Eminent Domain-MaceRich/City of Great Falls Water Retention Pond
You have requested an opinion regarding the City's right to exercise "Eminent Domain" for the taking of State property, i.e. storm water retention pond as a part of the MaceRich Development.
It is clear that the City may exercise "Eminent Domain" proceedings for the taking of State property pursuant to 70-30-103, MCA, which provides a pertinent part: "The private property which may be taken under this chapter includes...(b) lands belonging to this state or to any county, city, or town not appropriated to some public use; (c) property appropriated to a public use, but such property must not be taken unless for a more necessary public use than that to which it has already been appropriated." It would appear that a storm water retention pond is a necessary public use and by reference in the "Encroachment Permit," such a retention pond would solve concurrent drainage problems on the 14th Street Interchange as well as benefit the adjacent property.
Our right of Eminent Domain on state land may be restricted where it involves "school trust lands." A very early case in Montana, Galen v. District Court, 42 Mont. 105 (1910) held that the United States Congress commanded that Section 16 and 36 in each Township must be sold at "public sale" and that mandate preempted the taking of such property by Eminent Domain procedures. Brief research does not indicate that this theory and preemption has been applied in other states and the precedent may no longer be valid.