Was the Big Sky Really Falling? Examining Montana's Response to Kelo v. City of New London
69 Mont. L. Rev. 79 (Winter 2008)
Posted: 23 Jul 2012
Date Written: August 1, 2008
The U.S. Supreme Court sent shockwaves throughout the country when it ruled in Kelo v. City of New London that New London, Connecticut could condemn ordinary neighborhood properties and resell the land to private developers for economic development. Those shockwaves were felt in Montana, where many citizens let it be known that they did not want Kelo to happen in their state. But could Kelo happen in Montana? The short answer is “no”-- not under facts like those in the Kelo case. But the introspection Kelo triggered did reveal some gray areas in the State's eminent domain law that warranted clarification. Ultimately, however, the Legislature lost sight of Montana law in its rush to enact a Kelo fix and may have taken the response too far by eliminating an important tool for condemning and renewing unsafe urban properties.
Part I of this article summarizes the Kelo decision and highlights what will later be shown as key distinctions between U.S. Supreme Court jurisprudence and eminent domain law in Montana. Part II provides a brief sketch of Montana eminent domain law, highlights the key distinctions between Montana law and Kelo, and identifies some of the gray areas in Montana law. Part III then describes Montana's legislative response to Kelo and where the State's eminent domain law stands today. Finally, the article concludes with an assessment of Montana's response to Kelo and suggests future possibilities for Montana's eminent domain law that better balance private property rights and community safety.
Keywords: eminent domain, condemnation, urban redevelopment, 5th Amendment, land use, Kelo, ballot initiative
JEL Classification: K11, K32, H70, L32, O10, O20, R52, R58
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