I 

111TH CONGRESS 

1ST SESSION H. R. 1885 

To protect private property rights. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 2, 2009 

Ms. WATERS (for herself, Mr. SENSENBRENNER, Mrs. BACHMANN, Mr. CLAY, 

Mr. COBLE, Mr. COHEN, Mr. CUELLAR, Mr. CUMMINGS, Mrs. EMERSON, 

Mr. FRANKS of Arizona, Mr. GOODLATTE, Mr. GORDON of Tennessee, 

Mr. HELLER, Mr. HERGER, Mr. HOLT, Mr. ISSA, Mrs. KIRKPATRICK of 

Arizona, Mr. LOBIONDO, Mr. ROGERS of Kentucky, Mr. ROHRABACHER, 

Mr. ROYCE, Mr. SESSIONS, Mr. SIMPSON, Mr. SMITH of Nebraska, Mr. 

SMITH of Texas, and Mr. WAMP) introduced the following bill; which was 

referred to the Committee on the Judiciary 

A BILL 

To protect private property rights. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Private Property 

5 Rights Protection Act of 2009’’. 

6 SEC. 2. PROHIBITION ON EMINENT DOMAIN ABUSE BY 

7 STATES. 

8 (a) IN GENERAL.—No State or political subdivision 

9 of a State shall exercise its power of eminent domain, or 


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1 allow the exercise of such power by any person or entity 

2 to which such power has been delegated, over property to 

3 be used for economic development or over property that 

4 is used for economic development within 7 years after that 

5 exercise, if that State or political subdivision receives Fed6 eral economic development funds during any fiscal year 

7 in which the property is so used or intended to be used. 

8 (b) INELIGIBILITY FOR FEDERAL FUNDS.—A viola9 tion of subsection (a) by a State or political subdivision 

10 shall render such State or political subdivision ineligible 

11 for any Federal economic development funds for a period 

12 of 2 fiscal years following a final judgment on the merits 

13 by a court of competent jurisdiction that such subsection 

14 has been violated, and any Federal agency charged with 

15 distributing those funds shall withhold them for such 2- 

16 year period, and any such funds distributed to such State 

17 or political subdivision shall be returned or reimbursed by 

18 such State or political subdivision to the appropriate Fed19 eral agency or authority of the Federal Government, or 

20 component thereof. 

21 (c) OPPORTUNITY TO CURE VIOLATION.—A State or 

22 political subdivision shall not be ineligible for any Federal 

23 economic development funds under subsection (b) if such 

24 State or political subdivision returns all real property the 

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1 diction to have constituted a violation of subsection (a) 

2 and replaces any other property destroyed and repairs any 

3 other property damaged as a result of such violation. 

4 SEC. 3. PROHIBITION ON EMINENT DOMAIN ABUSE BY THE 

5 FEDERAL GOVERNMENT. 

6 The Federal Government or any authority of the Fed7 eral Government shall not exercise its power of eminent 

8 domain to be used for economic development. 

9 SEC. 4. PRIVATE RIGHT OF ACTION. 

10 (a) CAUSE OF ACTION.—Any (1) owner of private 

11 property whose property is subject to eminent domain who 

12 suffers injury as a result of a violation of any provision 

13 of this Act with respect to that property, or (2) any tenant 

14 of property that is subject to eminent domain who suffers 

15 injury as a result of a violation of any provision of this 

16 Act with respect to that property, may bring an action 

17 to enforce any provision of this Act in the appropriate 

18 Federal or State court. A State shall not be immune under 

19 the eleventh amendment to the Constitution of the United 

20 States from any such action in a Federal or State court 

21 of competent jurisdiction. In such action, the defendant 

22 has the burden to show by clear and convincing evidence 

23 that the taking is not for economic development. Any such 

24 property owner or tenant may also seek an appropriate 


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1 relief through a preliminary injunction or a temporary re2 straining order. 

3 (b) LIMITATION ON BRINGING ACTION.—An action 

4 brought by a property owner or tenant under this Act may 

5 be brought if the property is used for economic develop6 ment following the conclusion of any condemnation pro7 ceedings condemning the property of such property owner 

8 or tenant, but shall not be brought later than seven years 

9 following the conclusion of any such proceedings. 

10 (c) ATTORNEYS’ FEE AND OTHER COSTS.—In any 

11 action or proceeding under this Act, the court shall allow 

12 a prevailing plaintiff a reasonable attorneys’ fee as part 

13 of the costs, and include expert fees as part of the attor14 neys’ fee. 

15 SEC. 5. REPORTING OF VIOLATIONS TO ATTORNEY GEN16 ERAL. 

17 (a) SUBMISSION OF REPORT TO ATTORNEY GEN18 ERAL.—Any (1) owner of private property whose property 

19 is subject to eminent domain who suffers injury as a result 

20 of a violation of any provision of this Act with respect to 

21 that property, or (2) any tenant of property that is subject 

22 to eminent domain who suffers injury as a result of a vio23 lation of any provision of this Act with respect to that 

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1 ment, any authority of the Federal Government, State, or 

2 political subdivision of a State to the Attorney General. 

3 (b) INVESTIGATION BY ATTORNEY GENERAL.—Upon 

4 receiving a report of an alleged violation, the Attorney 

5 General shall conduct an investigation to determine wheth6 er a violation exists. 

7 (c) NOTIFICATION OF VIOLATION.—If the Attorney 

8 General concludes that a violation does exist, then the At9 torney General shall notify the Federal Government, au10 thority of the Federal Government, State, or political sub11 division of a State that the Attorney General has deter12 mined that it is in violation of the Act. The notification 

13 shall further provide that the Federal Government, State, 

14 or political subdivision of a State has 90 days from the 

15 date of the notification to demonstrate to the Attorney 

16 General either that (1) it is not in violation of the Act 

17 or (2) that it has cured its violation by returning all real 

18 property the taking of which the Attorney General finds 

19 to have constituted a violation of the Act and replacing 

20 any other property destroyed and repairing any other 

21 property damaged as a result of such violation. 

22 (d) ATTORNEY GENERAL’S BRINGING OF ACTION TO

23 ENFORCE ACT.—If, at the end of the 90-day period de24 scribed in subsection (c), the Attorney General determines 

25 that the Federal Government, authority of the Federal 


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1 Government, State, or political subdivision of a State is 

2 still violating the Act or has not cured its violation as de3 scribed in subsection (c), then the Attorney General will 

4 bring an action to enforce the Act unless the property 

5 owner or tenant who reported the violation has already 

6 brought an action to enforce the Act. In such a case, the 

7 Attorney General shall intervene if it determines that 

8 intervention is necessary in order to enforce the Act. The 

9 Attorney General may file its lawsuit to enforce the Act 

10 in the appropriate Federal or State court. A State shall 

11 not be immune under the eleventh amendment to the Con12 stitution of the United States from any such action in a 

13 Federal or State court of competent jurisdiction. In such 

14 action, the defendant has the burden to show by clear and 

15 convincing evidence that the taking is not for economic 

16 development. The Attorney General may seek any appro17 priate relief through a preliminary injunction or a tem18 porary restraining order. 

19 (e) LIMITATION ON BRINGING ACTION.—An action 

20 brought by the Attorney General under this Act may be 

21 brought if the property is used for economic development 

22 following the conclusion of any condemnation proceedings 

23 condemning the property of an owner or tenant who re24 ports a violation of the Act to the Attorney General, but 


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1 shall not be brought later than seven years following the 

2 conclusion of any such proceedings. 

3 (f) ATTORNEYS’ FEE AND OTHER COSTS.—In any 

4 action or proceeding under this Act brought by the Attor5 ney General, the court shall, if the Attorney General is 

6 a prevailing plaintiff, award the Attorney General a rea7 sonable attorneys’ fee as part of the costs, and include 

8 expert fees as part of the attorneys’ fee. 

9 SEC. 6. NOTIFICATION BY ATTORNEY GENERAL. 

10 (a) NOTIFICATION TO STATES AND POLITICAL SUB11 DIVISIONS.— 

12 (1) Not later than 30 days after the enactment 

13 of this Act, the Attorney General shall provide to the 

14 chief executive officer of each State the text of this 

15 Act and a description of the rights of property own16 ers and tenants under this Act. 

17 (2) Not later than 120 days after the enact18 ment of this Act, the Attorney General shall compile 

19 a list of the Federal laws under which Federal eco20 nomic development funds are distributed. The Attor21 ney General shall compile annual revisions of such 

22 list as necessary. Such list and any successive revi23 sions of such list shall be communicated by the At24 torney General to the chief executive officer of each 

25 State and also made available on the Internet 


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1 website maintained by the United States Depart2 ment of Justice for use by the public and by the au3 thorities in each State and political subdivisions of 

4 each State empowered to take private property and 

5 convert it to public use subject to just compensation 

6 for the taking. 

7 (b) NOTIFICATION TO PROPERTY OWNERS AND TEN8 ANTS.—Not later than 30 days after the enactment of this 

9 Act, the Attorney General shall publish in the Federal 

10 Register and make available on the Internet website main11 tained by the United States Department of Justice a no12 tice containing the text of this Act and a description of 

13 the rights of property owners and tenants under this Act. 

14 SEC. 7. REPORTS. 

15 (a) BY ATTORNEY GENERAL.—Not later than 1 year 

16 after the date of enactment of this Act, and every subse17 quent year thereafter, the Attorney General shall transmit 

18 a report identifying States or political subdivisions that 

19 have used eminent domain in violation of this Act to the 

20 Chairman and Ranking Member of the Committee on the 

21 Judiciary of the House of Representatives and to the 

22 Chairman and Ranking Member of the Committee on the 

23 Judiciary of the Senate. The report shall— 


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1 (1) identify all private rights of action brought 

2 as a result of a State’s or political subdivision’s vio3 lation of this Act; 

4 (2) identify all violations reported by property 

5 owners and tenants under section 5(c) of this Act; 

6 (3) identify all lawsuits brought by the Attorney 

7 General under section 5(d) of this Act; 

8 (4) identify all States or political subdivisions 

9 that have lost Federal economic development funds 

10 as a result of a violation of this Act, as well as de11 scribe the type and amount of Federal economic de12 velopment funds lost in each State or political sub13 division and the Agency that is responsible for with14 holding such funds; and 

15 (5) discuss all instances in which a State or po16 litical subdivision has cured a violation as described 

17 in section 2(c) of this Act. 

18 (b) DUTY OF STATES.—Each State and local author19 ity that is subject to a private right of action under this 

20 Act shall have the duty to report to the Attorney General 

21 such information with respect to such State and local au22 thorities as the Attorney General needs to make the report 

23 required under subsection (a). 

24 SEC. 8. SENSE OF CONGRESS REGARDING RURAL AMERICA. 

25 (a) FINDINGS.—The Congress finds the following: 


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1 (1) The founders realized the fundamental im2 portance of property rights when they codified the 

3 Takings Clause of the Fifth Amendment to the Con4 stitution, which requires that private property shall 

5 not be taken ‘‘for public use, without just compensa6 tion’’. 

7 (2) Rural lands are unique in that they are not 

8 traditionally considered high tax revenue-generating 

9 properties for State and local governments. In addi10 tion, farmland and forest land owners need to have 

11 long-term certainty regarding their property rights 

12 in order to make the investment decisions to commit 

13 land to these uses. 

14 (3) Ownership rights in rural land are funda15 mental building blocks for our Nation’s agriculture 

16 industry, which continues to be one of the most im17 portant economic sectors of our economy. 

18 (4) In the wake of the Supreme Court’s deci19 sion in Kelo v. City of New London, abuse of emi20 nent domain is a threat to the property rights of all 

21 private property owners, including rural land own22 ers. 

23 (b) SENSE OF CONGRESS.—It is the sense of Con24 gress that the use of eminent domain for the purpose of 

25 economic development is a threat to agricultural and other 


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1 property in rural America and that the Congress should 

2 protect the property rights of Americans, including those 

3 who reside in rural areas. Property rights are central to 

4 liberty in this country and to our economy. The use of 

5 eminent domain to take farmland and other rural property 

6 for economic development threatens liberty, rural econo7 mies, and the economy of the United States. The taking 

8 of farmland and rural property will have a direct impact 

9 on existing irrigation and reclamation projects. Further10 more, the use of eminent domain to take rural private 

11 property for private commercial uses will force increasing 

12 numbers of activities from private property onto this Na13 tion’s public lands, including its National forests, National 

14 parks and wildlife refuges. This increase can overburden 

15 the infrastructure of these lands, reducing the enjoyment 

16 of such lands for all citizens. Americans should not have 

17 to fear the government’s taking their homes, farms, or 

18 businesses to give to other persons. Governments should 

19 not abuse the power of eminent domain to force rural 

20 property owners from their land in order to develop rural 

21 land into industrial and commercial property. Congress 

22 has a duty to protect the property rights of rural Ameri23 cans in the face of eminent domain abuse. 

24 SEC. 9. DEFINITIONS. 

25 In this Act the following definitions apply: 


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1 (1) ECONOMIC DEVELOPMENT.—The term 

2 ‘‘economic development’’ means taking private prop3 erty, without the consent of the owner, and con4 veying or leasing such property from one private 

5 person or entity to another private person or entity 

6 for commercial enterprise carried on for profit, or to 

7 increase tax revenue, tax base, employment, or gen8 eral economic health, except that such term shall not 

9 include— 

10 (A) conveying private property— 

11 (i) to public ownership, such as for a 

12 road, hospital, airport, or military base; 

13 (ii) to an entity, such as a common 

14 carrier, that makes the property available 

15 to the general public as of right, such as 

16 a railroad or public facility; 

17 (iii) for use as a road or other right 

18 of way or means, open to the public for 

19 transportation, whether free or by toll; and 

20 (iv) for use as an aqueduct, flood con21 trol facility, pipeline, or similar use; 

22 (B) removing harmful uses of land pro23 vided such uses constitute an immediate threat 

24 to public health and safety; 


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1 (C) leasing property to a private person or 

2 entity that occupies an incidental part of public 

3 property or a public facility, such as a retail es4 tablishment on the ground floor of a public 

5 building; 

6 (D) acquiring abandoned property; 

7 (E) clearing defective chains of title; 

8 (F) taking private property for use by a 

9 public utility; and 

10 (G) redeveloping of a brownfield site as de11 fined in the Small Business Liability Relief and 

12 Brownfields Revitalization Act (42 U.S.C. 

13 9601(39)). 

14 (2) FEDERAL ECONOMIC DEVELOPMENT

15 FUNDS.—The term ‘‘Federal economic development 

16 funds’’ means any Federal funds distributed to or 

17 through States or political subdivisions of States 

18 under Federal laws designed to improve or increase 

19 the size of the economies of States or political sub20 divisions of States. 

21 (3) STATE.—The term ‘‘State’’ means each of 

22 the several States, the District of Columbia, the 

23 Commonwealth of Puerto Rico, or any other terri24 tory or possession of the United States. 


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1 SEC. 10. SEVERABILITY AND EFFECTIVE DATE. 

2 (a) SEVERABILITY.—The provisions of this Act are 

3 severable. If any provision of this Act, or any application 

4 thereof, is found unconstitutional, that finding shall not 

5 affect any provision or application of the Act not so adju6 dicated. 

7 (b) EFFECTIVE DATE.—This Act shall take effect 

8 upon the first day of the first fiscal year that begins after 

9 the date of the enactment of this Act, but shall not apply 

10 to any project for which condemnation proceedings have 

11 been initiated prior to the date of enactment. 

12 SEC. 11. SENSE OF CONGRESS. 

13 It is the policy of the United States to encourage, 

14 support, and promote the private ownership of property 

15 and to ensure that the constitutional and other legal rights 

16 of private property owners are protected by the Federal 

17 Government. 

18 SEC. 12. BROAD CONSTRUCTION. 

19 This Act shall be construed in favor of a broad pro20 tection of private property rights, to the maximum extent 

21 permitted by the terms of this Act and the Constitution. 

22 SEC. 13. LIMITATION ON STATUTORY CONSTRUCTION. 

23 Nothing in this Act may be construed to supersede, 

24 limit, or otherwise affect any provision of the Uniform Re25 location Assistance and Real Property Acquisition Policies 

26 Act of 1970 (42 U.S.C. 4601 et seq.). 


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1 SEC. 14. RELIGIOUS AND NONPROFIT ORGANIZATIONS. 

2 (a) PROHIBITION ON STATES.—No State or political 

3 subdivision of a State shall exercise its power of eminent 

4 domain, or allow the exercise of such power by any person 

5 or entity to which such power has been delegated, over 

6 property of a religious or other nonprofit organization by 

7 reason of the nonprofit or tax-exempt status of such orga8 nization, or any quality related thereto if that State or 

9 political subdivision receives Federal economic develop10 ment funds during any fiscal year in which it does so. 

11 (b) INELIGIBILITY FOR FEDERAL FUNDS.—A viola12 tion of subsection (a) by a State or political subdivision 

13 shall render such State or political subdivision ineligible 

14 for any Federal economic development funds for a period 

15 of 2 fiscal years following a final judgment on the merits 

16 by a court of competent jurisdiction that such subsection 

17 has been violated, and any Federal agency charged with 

18 distributing those funds shall withhold them for such 2- 

19 year period, and any such funds distributed to such State 

20 or political subdivision shall be returned or reimbursed by 

21 such State or political subdivision to the appropriate Fed22 eral agency or authority of the Federal Government, or 

23 component thereof. 

24 (c) PROHIBITION ON FEDERAL GOVERNMENT.—The 

25 Federal Government or any authority of the Federal Gov26 ernment shall not exercise its power of eminent domain 


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1 over property of a religious or other nonprofit organization 

2 by reason of the nonprofit or tax-exempt status of such 

3 organization, or any quality related thereto. 

4 SEC. 15. REPORT BY FEDERAL AGENCIES ON REGULATIONS 

5 AND PROCEDURES RELATING TO EMINENT 

6 DOMAIN. 

7 Not later than 180 days after the date of the enact8 ment of this Act, the head of each Executive department 

9 and agency shall review all rules, regulations, and proce10 dures and report to the Attorney General on the activities 

11 of that department or agency to bring its rules, regula12 tions and procedures into compliance with this Act. 

13 SEC. 16. SENSE OF CONGRESS. 

14 It is the sense of Congress that any and all pre15 cautions shall be taken by the government to avoid the 

16 unfair or unreasonable taking of property away from sur17 vivors of Hurricane Katrina who own, were bequeathed, 

18 or assigned such property, for economic development pur19 poses or for the private use of others. 

Æ 


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