                                   No. 14829
                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    1980


JOHN V. SCHARA and MARDELL SCHARA,

                       Plaintiff and Respondents and
                        Cross-Appellants,
          VS.
THE ANACONDA COMPANY, a Delaware
corporation,

                        Defendant and Appellant


                                   No. 14800
TliE ANACONDA COMPANY,

                        Relator,
        VS   .
THE HON. JAMES D. FREEBOURN, DISTRICT JDUGE PRESIDING
IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al.,

                        Respondents.

Appeal from:     District Court of the Second Judicial District,
                 In and For the County of Silver Bow
                 Honorable Judge James D. Freebourn and Honorable
                  Judge Arnold H. Olstin presiding.
Counsel of Record:

      For Appellant:
          Poore Law Firm, Butte, Montana
          Urban L . Roth argued, Butte, Montana
      For Respondent:

          McCaffery and Peterson, Butte, Montana
          John L. Peterson argued, Butte, Montana


                                     Submitted:   February 28, 1980
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
          This is an appeal in which two actions have been consol-
idated.    The first is a condemnation action brought by The Ana-
conda Company (Anaconda) to condemn approximately two acres of
land in the Columbia Gardens Addition of Butte, Nontana,        The
property sought to be condemned is owned by John and filardell
Schara (Scharas),     The second is an action brought by khe Scharas
to enjoin Anaconda from allegedly violating the conditions of a
restrictive covenant incorporated in deeds to lots in the Col~un-
bia Gardens Addition.    Both actions were filed in the Silver Bow
County District Court.
          In the first action, the District Court entered incorn-
p&
 Le   findings and was thereafter directed by this Court to comp1et.e
such findings.
          In the second action, the District Court granteii a mandn--
tory permanent injunction enjoining Anaconda from violating t.he
restrictive covenant which '
                           a
                           d      attached to the Scharas' property,
Anaconda moved for a stay of the injunction, but the mot-ion was
denied by the District Court.     This Court granted Anaconda a tern-
porary stay pending determination of the merits of this appeal,
          Anaconda appeals from both District Court judgments, and
the Scharas cross-appeal from the judgment entered in the condem-
nation action.
          John and Mardell Sct:a.ra are the owners of approximately
2 - 2 ' 7 0 4 acres of land, Lots 51, 52 and 54 of the Columbia Gardens

Addition in Butte, Montana.     On September 1, 1978, the Columbia
Gardens Addition was incorpo.ra.tedunder the Master Zoning Plan for
Butte-Silver Bow and was zoned "Mu for mininy or industrial.          Most
of the 26 acres and the entire mineral estate within the Addition
is owned by the Ailaconda Company.    The only access to the Scharas'
property and the Addition is Montgomery Avenue.       Anaconda owns all
of the land adjacent to Montgomery Avenue on both sides, plus all
of Montgomery Avenue to the Columbia Gardens Addition.    At the

present timc, the Scharas are the sole residents of the addi-

tion.     Since 1970, the Addition and its immediate neighborhood
have undergone extensive changes, most of which have been prompted

by Anaconda.    The Columbia Gardens Anlusement Park has been razed,

the Continental East Pit operation located 300 to 400 feet from
the Addition has commenced, an interstate highway has been con-
structed through the southeast corner of the ~ddition,the Berkeley
Pit has expanded and a power line has been constructed through
the north end of the Addition.     The Anaconda Company has, upon
s i r r i occasions, attempted to acquire the Scharas' property
 :\ea
through negotiation and offers to purchase.
           Anaconda instituted a condemnation proceeding against the
Scharas to acquire their land. for the purpose of establishing a
dumping site for mining waste.     In support of its claim, Anaconda
presented evidence that it wished to expand its mining operations,
that the expansion would require new techniques and expensive
equipment, that it would be economically infeasible and imprac-
tical to d.ump waste on any other land, and that the 1.ancI was es.-
sential to carrying out Anaconda's long term mining plan.     Anacoxr-

da's testimony reveals that if the land is not acquired it would
be infeasible to expand the Berkeley Pit eastward; consequen,kly,
mining would terminate within seven years due to exhaustion of
the pit, shortening the life of mining in Butte by 14 years.        Aria,-

conda's mining plan requires that Montgomery Avenue as well as the
Coluntbia Gardens Addition be inundated by overburden by the n j d
                                                              1.-
1980's.     The Scharas presented contradictory evidence of alter-
native dumping sites which were not as economically feasible for
the mining operation but which were being contemplated by rmacorlda
if the Scharasyand could not be obtained.       The Scharas also

proffered testimony that Anaconda had made inconsistent !~tatcmenl.s
concerning future mining operations in its petition for the
Woodville Road closure in 1977.    Anaconda had stated at that
time that with the road closure it could continue mining until
about year 2000.
        In the second action, the Scharas sought to enjoin Ana-
conda from violating one of the restrictive covenants placed
upon their property.     The covenant was the result of a trust
agreement signed in 1950 between North Butte Mining Company,
Anaconda's predecessor in interest, and all of the owners of
Columbia Gardens Addition, one of whom was the Scharasqrede-
cessor in interest.     The trust instrument bound successors in
interest and provided:
        "That in all conveyances, uses or permits there
        shall be a restriction upon the use of said prem-
        ises that said premises shall be for residential
        use only and that no building, use or operation of
        the premises shall create or constitute a nuisance."
        The District Court denied Anaconda's motion to 2tay the
restrictive covenant proceedrngs until the outcome of the condem-
nation action, and Judge Olsen entered judgment against Anaconda
on March 28, 1979.     Pursuant to this judgment, a permansnt injunc-
tlon was issued which restrained Anaconda from using its property
within the Columbia Gardens Addition for any purpose other than
residential and from creating or maintaining a nuisance.    The
inlunctlon   also commanded Anaconda to remove an electr~ctrans-
mission line from the Addition and to repair or remove all vacated
buildings located upon its property within the Addition.
        Originally the District Court, in the condemnatjon action,
the Honorable James D. Freebourn presiding, made the foL1.owing
findings of fact and conclusions of Law on April 19, 19'79:
       "5.  At this date, plaintiff has nearly reached
       the maximum depth at which ore can be economically
       mined from the pit; the pit must be expanded
       horizontally in one direction or another; defen-
       dants' property lies east and south of the pit;
       expansion to the east and south, instead of some
       other direction, is compatible with the greatest
       public good and least private injury;
        "10. Plaintiff's past, present and continuation
        of future operations have and will accrue as a
        benefit to the public and to the use of the public.
        Acquisition of lots 51, 52 and 54 of the Columbia
        Garde.n Addition, on substantial and satisfactory
        estimations, now in evidence, will continue plain-
        tiff" operations for some 13 or more years.
        "11. Plaintiff has shown, by a preponderance of
        the evidence, that the use and taking of said
        lots is authorized by law; that the taking of said
        lots is necessary to such use; that the need of
        said lots is necessary to continue plaintiff's
        mining operations and such taking, at this definite
        and specific location, is being accon.plished in
        a manner which will be most compatible with the
        greatest public good and the least private injury."
         However, the court took judicial notice of the permanent
injunction issued on March 30, 1979, by the Honorable Arnold H.
Olsen in favor of the Scharas and against Anaconda concerning the
violation of restrictive covenants in the Columbia Gardens Addi-
tion.   As a result, Judge Freebourn refused to enter a condcmna-
tion award until this Court. reviewed the permanent injunction
since such an award would amount to a reversal of Judge Olsen's
injunction.
         Subsequently, Anaconda sought a writ from this Court t o
                                                               .
direct Judge Freebourn to complete his findings and conclusions.
On July 11, 1979, this Court directed the District Court to enter
those conclusions.   Judge Freebourn then made "amended and supple-
mental" findings of fact and conclusions of law in which he held
that Anaconda had "more than sufficient land for dumping purposes
and to continue its mining operations for some 14 or 1 5 years
without the need and necessity of the use of defendantsX land,"
and further found that Anaconda"   need for the Scharas' property
would not arise for some "14 or 15 years" in the future.   The
District Court then concluded Anaconda had failed to prove rts
need of the Scharas' property in the immediate future and because
of increases in land values over the last five years, the present
taking of the Schara property for "some 14 or 15 years in the
future, wou1.d deny defendants just compensation for such use."
        The following issues are before us on appeal:
        (1) Whether the District Court was in error by denying
Anaconda's motion to stay the restrictive covenant action until
a final determination of the condemnation action;
        (2)   In the alternative, whether the restrictive covenant
is unen-forcealiie due to the radical changes which have occurred
in the Columbia Gardens Addition since 1950;
        (3)   Whether the District CourL abused iLs discretion by
not having substantial evidence upon which to base its finding
that no "necessity" will exist for Anaconda to condemn the Scharas'
property for 14 or 15 yea.rs.
        The Scharas raise the following issues on cross,-appeal:
        (1) Whether the proposed condemnation is excessive;
        (2)   Whether, by reason of the Hardrock Mining Act, a
valid mining permit is an absolute condition precedent to condom-
nation for mining purposes;
        (3) Whether section 70-30-102, MCA, which distinguishes
between copper mining and coal mining as a public use, is uncon-
stitutional under the Equal Protection Clause.
        Looking first to Judge Olsen's denial of Anacoiic~a's soti<,>ri
to stay the covenant action pending the outcome of the condemna-
tion proceedings, the heart of this issue is the effect that a
restrictive covenant has upon a proceeding seeking a preliminary
cendm.%ion award.
        Nichols on Eminent Domain discusses the issue as foLiows:
        "5.73 - .
              Restrictive covenants.
                                 -
        "A rather perplexing situation arises out of the
        existence of what are commonly called 'building
        restrictions.' A large tract of land is often cut
        up into lots and sold for residential purposes,
        and each lot is sold subject to restrictions
        against use for various purposes, the restriction
        upon each lot being for the benefit of all other
        lots in the same development or 'common plan or
          scheme,' reasonable in their character, they are
          enforced by courts of equity in favor of the
          benefitted owner, so long as he continues to own
          any part of the tract for the benefit of which the
          restrictic~nswere createz, as well as in favor
          of the owner of hny one of the lots into which the
          tract was divided, and against the owner of any of
          the lots who attempts to disregard the restric-
          tions. Such restrictions do not, however, have- an
                                                 --
          inhibiting influencexon The right to exercise     --
          the power of eminent domain .     .    ." (Emphasis added.)
          Nichols on Eminent Domain, S 5 . 7 5 . -

          This approach is consistent with Montana eminent domain

statutes.     Section 70-30-103, MCA, provides that all real prop-
erty as well as all classes of private property may be taken
for public use when such taking is authorized by law, and section
70-30-104, MCA, states that "such estate or rights as may be
necessary up to and including a fee simple when taken         ...       for

      . a place for the deposit of debris or tailings of       a mine     . . ."
are   " . . . subject to be t-aken for the public use."
           In our present appeal, the restrictive covenant. is at
most a part of the fee or something less than a fee.          Therefore,

it is the proper subject of a condemnation proceeding.          Once it
is determined that the property sought is a proper subject of

condemnation, the court must find that the taking is necessary
to the public interest and consistent with the greatest public
good and the least private injury.

          We therefore conclude that a restrictive covenant action

is moot when a preliminary condemnation action involvinc~the same

property is pending.      If i. is found that a preliminary condem-.
nation award is proper, the condemnee may seek compensation which

takes into account the value of the property pursuant to the uses

allowed.    On the other hand, if the condemnor is not entitled to

a preliminary condemnation award, the covenantee may proceed with
a suit on the restrictive covenant.

          The District Court was in error by not granting the motion
to stay the restrictive covenant proceeding until t.he propriety
of the condemnation action was finally determined.
             Since we find the restrictive covenant action moot, we
nerd not reach the xssue involving the unenfo-~cakilityof a
covenant when radical changer; have occurred rn the character of
a neighborhood.

             Next, with regard to the propriety of the District Court's
denial of a preliminary condemnation order, it is Anaconda's son-
tention that substantial credible evidence does not exist to
support the tlndrng ot no necessxty tor condemnatlon,
             Section 70-30-111, MCA, is entitled "Facts necessarx to
                                                                 ,
                                                                 .




                   .~
be found before condemnation."       It provides, in pertinent part,
'\   .   .   [blefore property c r be taken, it must appear:
                                at                              (1) that
                                                       --
the use to which it is to be applied is a use authorized b x L 3 ;
( 2 ) that the taking is necessary to such use     . . ."   Section 70-
30-110, MCA, states that the proposed condemnation "must: be lo-
cated in the manner which will be most compatible with the greatest
public good and the least private injury."
             From the preceding statutes the key determinations to be
made are:       (1) Whether the proposed use is "authorized by law,'"
( 2 ) whether "the taking is necessary", and (3) whether the location

is the "most compatible with the greatest public good a l the least
                                                       id
private injury."
             The determination involving whether the proposed use is
"authorized by law" is easily made.       Section 70-30-102, MCA,
enumerates the public uses which are the proper subject        oi c$)n-
de.nnatron and therefore "authorized by law."      Mininq, except the
strip rnininq of coal, is an authorized public use within sectxan
70-30-102 (15), MCA.
             The determinations of whether the taking is necessary
and whethes it is conipatible with the greatest public good a i
                                                             rd
the least private injury both involve factual issues.
             With regard to whether the talcing is necessary, this
Court has consistently held that the necessity need not be ab-
solute.      Instead the test is "reasonable, requi-site,and proper
for the accomplishment of the end in view, under the particular
circumstances of the case."      Montana Power Co. v. Bokma (1969)

153 Mont. 390, 398, 457 P.2~1 769, 774; State Highway Coinmissron
a. Yost Farm Co. (19631, 142 Mont. 239, 384 P.2d 277; Butte,

A,   &   P. Ry. Co. V. Montana U. Ry. Co. (1895)' 16 Mont. 504, 4 1
P.   232-
            This Court made the following statement with regard to

the determination of "necessity" and "the greatest good" and the
"least private iL1jllr~i1' Mmta7aPower Co. v. Bokma, supra.
                         in

            "The taking of private property by condemnation
            proceedings must be compatible with the greatest
            public good and the least private injury. . . The
            greatest good on the one hand and the least injury
            on the other are questions of fact to be determined
            in passing upon the question of necessity. . . ?'hese
            questions commonly arise in connection with the
            location of the proposed improvement. Since the
            condemnor has the expertise and detailed knowledge
            of considerations involved in determining 1ocati.on
            of the improvement, i.ts choice of location is given
            great weight. . . Such choice will not be overturned
            except on clear and convincing proof that the taking
            has been excessive or arbitrary, it not being the
            function of the judiciary to dt:.tcrmine as an engineer
            the best location of the proposed improvements.      ..
            On the other hand when the condemnor fails to cun-
            sider the question of the Least private injury be-
            tween alternate routcs equal in terms of public
            good, its action is arbitrary and amounts to an abuse
            of discretion."  (Citations omitted.) 153 Mont. at
            399-400, 457 P.2d at 774-775.
            According to the above approach the condemnor's (Anaconda%)
 choice of location is to be given great weight, it is to be over-
 turned only by clear and convincing proof that the decision was

 excessive or arbitrary, and an abuse of discretion will be found

 if the condemnor fails to study alternatives.          The record dis-
 closes that Anaconda studied all alternatives and rejected them
 as being economically infeasible.         The District Court in its

 original findings found that Anaconda had "shown, by a prepon-
 derance of the evidence that the      .   . . taking   is necessary   ..
 and will be most compatible: with the greatest public good and
 the least private injury."    Mysteriously, in the court"   amended
 and supplemental findings of fact and conclusions of law, the
 original findings remain intact, but tl fcllodi~ginconsistent
                                       !e
 finding is added:
        "Plaintiff has falled to prove by a preponderance
        of the evidence the need and necessity of plain-
        tiff for the use for mining of defendants' land in
        the immediate future and such need and necessity
        will not arise for some 14 or 15 years in the future,"
        Normally, the entry c f inconsistent findings wo~iLd require
                             )
us to remand the case for further proceedings in the District
Court; however here we find no evidence to support the court's
latest findings and substantial evidence to support the initial
findings.   We conclude that the findings entered by the District
Court on April 9, 1979, arc correct and must be entered.
        The record does disclose that mining in the present Berkeley
Pit will be completed in 1986.    In order to increase the life of
future mining in Butte the Berkeley Pit must be expanded, and ac-
cordinq to Anaconda's long term mining plan strippinq of overburden
must commence by 1983.   Anaconda explains that new technoloyy has
been developed for removing overburden, and in order to have the
equipment on line by 1983, inmediate action is requi-red. The
equipment requires a tremendous investment and Anaconda must know
the result of the condemnation action before it can be ordered.
        It is further disclosed that Anaconda considered two al-
ternatives to the condemnaticin of the Scharas' property.    One al-
ternative was backfilling the Berkeley Pit with overburclen.    This
alternative was rejected since the long term mining plan contem-
plates vertically mining ore deposnts located beneath the deepest
portion of the Berkeley Plt.    This future vertical mining plan 1s
not now feaslbie because of both a lack of technology and current
market conditions; however, it would be completely precluded if
Anaccnaa backfilled the pit,    The second alternative studied by
Anaconda was the establishment of a dumping site on a portion of
its own land.    Testimony reveals that although this alternative

is feasible from an engineering standpoint, it is economicalLy
infeasible to transport the waste the distance involved..      his

leaves condemnation of the Scharas' land as the only feasible
alternative to continue the life of mining in Butte.
         The Scharas contend that since the preceding alternatives
exist, condemnation of their land is not "necessary" nor "corn-
patibSe with the greatest public good and the least private i..njl~:i?y-''
We find this contention lacking in merit in light of Montana Power
Co. v. Bokma, supra.
         As a result, we find substant:ial credible evidence to
support the findings entered,by the District Court on April 19,
3.979.

         The Scharas contend on cross-appeal that the amount of
property sought to be condemned is excessive.     The basis for this
argument is that Anaconda has recognized in its mining plan that
a portion of the Scharas' land is within the Highway Department's
proposed right-of-way for expansion of Interstate 15 and that
Anaconda only contemplates use of the Scharas' property up to the
proposed highway right-of-way.

         Again this argument centers on absolute necessity, rather
than the Montana test of necessity, "reasonable, requisite and proper
for the accomplishment of the end in view, under the particular cir-
cumstances of the case."    Montana Power Co. v. Bokma, supra.    Test-
imony reveals that Anaconda would not use a small portion of the
Scharas-and     within the proposed highway right-of-way if the Hi-gh-
way Department does acquire it.    Based on this testimony we cannot
find that the proposed condemnation is excessive merely because

Anaconda points out to the District Court that the Highway Depart-
ment may have a superior claim to a small portion of the land.       We

find that condcmnation of the Scharas' property is reasonable,
requisite, and proper for thc accomplishment of the end in
view under the peculiar circumstances of the case.    The possibil-
ity that Anaconda may have to forfeit a small portion of the land

to a superior claimant at a later date does not render the taking
excessive.
        The Scharas next contend on cross-appeal that since seca-
tion 70-30-111, MCA, requires the use to be "authorized by law"
before condemnation is allowed, the obtaining of a valid mining
permit is a condition precedent to condemnation.     However, there
is nothing in either the Hardrock Mining Act, section 82-4-301,
MCA, et seq., or the eminent domain statutes, section 70-30-101,
MCA, et seq., to support this position.    Section 70-30-102, MCA,
declares mining to be a public use and it is unquestioned that
Anaconda is allowed to engage in mining activities.    To find that
"authorized by law" requires that a mining company obtain a valid
mining permit prior to condemnation would be inconsistent with
Itontana statutory authority and would bc contrary to the public
policy of providing expediency in eminent domain proceedings.
        The Scharas' next issue on cross-appeal is that section
70-30-102(15), MCA, is unconstitutional.   The statute provides,
in pertinent part:
        "Public uses enumerated.   Subject to the provisions
        07 this chaoter, the riqht of eminent domain mav
        be exercise2 in behalf of the following public Gscs:


        "(15) to mine and extract ores, metals, or minerals
        owned by the plaintiff located beneath or upon the
        surface of wrowertv where the title to said surface
        vests in others. Gowever, the use of the surface
                                                -- -
        for strip mining or open pit mining of coal (i.e.,
        any mlnlng method or process zn which the strata or
        overburden is removed-or displaced in order to ex-
        tract the coal) - not a pubiic use, and eminent
                        is
                        .                            --
        domain may                      -               ..
                                                         ."
        (Emphasis added.)
        It is contended that since the statute allows the mining
of copper to be a public use and disallows the strip mining of
                              an
coal as a public use, there is/unconstitutional violation of the
Equal Protection Clause,    However, it is weil established that
the equal protection clause is very iimited in cases involviny
eminent domain statutes.    This is especially so when the statute
merely declares the legislative determination as to what is to
be considered a public use.    A11 that is required to survive
an equal protection challenge in this context is that there be a
"reasanable" basis for the distinction.    Nichols on Eminent Domain,
S4.15.
         The legislature has provided its basis for the distinction
between copper mining and coal mining in section 70-30-106, MCA,
which provides:
         "70-30-106. Eminent domain not to be used for
                              --
         coal mining in certain cases--pol*.    For the
         following reasons the state's power of eminent
         domain may not be exercised to mine and extract
         coal owned by the plaintiff located beneath the
         surface of property where the title to the sur-
         face is vested in others:
         " ( I ) Because of the large reserves of and the
         renewed interest in coal in eastern Montana, coal
         development is potentially more destructive to land
         and watercourses and underground aquifers and
         potentially more extensive geographically than the
         forseeable development of other ores, metals, or
         minerals and affects large areas of land and Large
         numbers of people.
         " ( 2 ) In many areas of Montana set forth in (1) here-
         inabove, the title to the surface is vested in dn
         owner other than the mineral owner, and the surface
         owner is putting that surface to a productive use,
         and it is the public policy of the state to encour-
         age and foster such productive use by such owner,
         and to permit the mineral owner to condemn the sur-
         face owner is to deprive the surface owner of the
         right to use his property in a productive manner as
         he determines and is also contrary to public policy
         as set forth in subsection (4).

         " (3) The magnitude of the potential coal devel0~~-
         ment in eastern Montana will subject landowners to
         undue harassment by excessive use of emlnent donialn
         "(4) It is the public policy of the state to encourage
         and foster diversity of land ownership, and the surface
         mining of coal and control of large areas of land by
         the surface coal mining industry would not foster pub-
         lic policy and further the public interest."
Based upon the immediatei:i preceding legislative policy we find
a reasonable basis for the distinction between copper rn~ningand
coal minlng.   We conclude that section 70-30-102(15) does not
viola-te the Equal Protection Clause.
        The judgments of the Distri.ct Court in both. actions are
reversed.    The restrictive covenant action is dismissed.   The con-
demnation action is remanded to the District Court for entry of
judgment of condemnation in accordance with this opinion.



                                        Chief Justice
Wc concur:
Mr. Justice John C. Sheehy dissenting:


     At the base of this Court"    decision and that of Judge
Freebourn in the condemnation action was the contention of the

Anaconda Company that unless the Schara property were acquired
by the company, the company's mining operations would be reduced
from 20 years in the Butte area to 6 to 7 years of active
life and we are told "this obviously would be disastrous for
the public good of Butte-Silver Bow, Deer Lodge Counties and
the State of Montana."
     The closing threat is not new,    It seems to me that I
have heard this song before.    It is from an old familiar
score.      We can only be sure that the decision to go or remain
            be
w i l l noddependent on the Schara property.

     Judge Freebourn, when this Court forced him by mandate
to make final findings of fact and conclusions of law so as
to override Judge Olsenk restrictive covenant decision,
found that "for dumping purposes" and to continue its mining
operations for some 14 or 1 5 years, Anaconda has sufficient

land already.   Therefore he saw no need for the Schara
property until some 14 or 15 years in the future and conclud.ed
that to permit condemnation now would deny them just corn-
pensation for the use of their Land.
     Althouyh Rule 52, M.R.Civ.P. makes it mandatory that firidinys
of a District Court shall. not be set. aside unless clearly
erroneous, this Court through the majority opinion not only

sets Judge Freebourn's findings aside, but proceeds to make
findings of its own.     There is ample support in the record that
the Anaconda company owns a considerable area of Land which
could be used for dumping purposes, established in the cross.-
examination of Wilbur Crisswell.    Moreover, Judge Freebourn had
before him the testimony regarding the East Continental

Pit.    The old highway leading to Woodville had been closed
to permit the opening of the East Continental Pit, upon the
representation that such <:losing of the highway would extend
Butte's mininq life for 22 years.      East Continental Pit was

abandoned after 2 years.
       As a second point, I cannot permit myself to sign an
opinion which finds it "reasonable" for eminent domain power
to be granted to open-pit hard rock mining companies, but Lo
be denied to open-pit coal mining companies.      Every reason st.nted
for denying eminent domain power to the coal mining industry

in section 70-30-106, MCA, applies with equal force to the
copper mining industry,    There is no real distinction between
an open-pit copper mine and an open-pit coal mine, except
that the ie7islature favored cows over people.      We give mere
lip service to the equal protection clause of the federal con-
stitution when we find a distinction without a difference
in section 70-30-106.
       For these reasons, I dissent.
