II

107TH CONGRESS

1ST SESSION S. 1412

To protect private property rights guaranteed by the fifth amendment to

the Constitution by requiring Federal agencies to prepare private property taking impact analyses and by allowing expanded access to Federal

courts.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 10, 2001

Mr. HAGEL introduced the following bill; which was read twice and referred

to the Committee on Governmental Affairs

A BILL

To protect private property rights guaranteed by the fifth

amendment to the Constitution by requiring Federal

agencies to prepare private property taking impact analyses and by allowing expanded access to Federal courts.

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 Act of 2001’’.

6 SEC. 2. FINDINGS.

7 Congress finds that—
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1 (1) the ownership of private property plays an

2 important role in the economic and social well-being

3 of the Nation;

4 (2) the protection of private property from a

5 taking by the Government without just compensation

6 is an integral protection for private citizens incor7 porated into the United States Constitution by the

8 fifth amendment and made applicable to the States

9 by the fourteenth amendment;

10 (3) Federal agency actions that restrict the use

11 of private property and result in a significant dimi12 nution in value of such property constitute a taking

13 of that property and should be properly com14 pensated;

15 (4) Federal agencies should consider the impact

16 of agency actions, including regulations, on the use

17 and ownership of private property; and

18 (5) owners of private property that is taken by

19 a Federal agency action should be permitted to seek

20 relief in Federal district court.

21 SEC. 3. STATEMENT OF POLICY.

22 The policy of the Federal Government is to protect

23 the health, safety, and general welfare of the public in a

24 manner that, to the extent practicable, avoids takings of

25 private property.
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1 SEC. 4. DEFINITIONS.

2 In this Act:

3 (1) AGENCY.—The term ‘‘agency’’ means a de4 partment, agency, independent agency, or instru5 mentality of the United States, including any mili6 tary department, Government corporation, Govern7 ment-controlled corporation, or other establishment

8 in the executive branch of the United States Govern9 ment.

10 (2) AGENCY ACTION.—The term ‘‘agency ac11 tion’’ means any action, inaction, or decision taken

12 by an agency and includes such an action, inaction,

13 or decision taken by, or pursuant to—

14 (A) a statute, rule, regulation, order,

15 guideline, or policy; or

16 (B) the issuance, denial, or suspension of

17 any permit, license, or authorization.

18 (3) OWNER.—The term ‘‘owner’’ means the

19 person with title, possession, or other property rights

20 in property affected by any taking of such property.

21 (4) TAKING OF PRIVATE PROPERTY.—The term

22 ‘‘taking of private property’’ means any action

23 whereby private property is taken in such a way as

24 to require compensation under the fifth amendment

25 to the United States Constitution.
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1 SEC. 5. REQUIREMENT FOR PRIVATE PROPERTY TAKING

2 IMPACT ANALYSIS.

3 (a) IN GENERAL.—To the fullest extent possible—

4 (1) the policies, regulations, and public laws of

5 the United States shall be interpreted and adminis6 tered in accordance with the policies under this Act;

7 and

8 (2) subject to subsection (b), each agency shall

9 complete a private property taking impact analysis

10 before taking any agency action (including the pro11 mulgation of a regulation) which is likely to result

12 in a taking of private property.

13 (b) NONAPPLICATION.—Subsection (a)(2) shall not

14 apply to—

15 (1) an action in which the power of eminent do16 main is formally exercised;

17 (2) an action taken—

18 (A) with respect to property held in trust

19 by the United States; or

20 (B) in preparation for, or in connection

21 with, treaty negotiations with foreign nations;

22 (3) a law enforcement action, including seizure,

23 for a violation of law, of property for forfeiture or

24 as evidence in a criminal proceeding;

25 (4) a communication between an agency and a

26 State or local land-use planning agency concerning
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1 a planned or proposed State or local activity that

2 regulates private property, regardless of whether the

3 communication is initiated by an agency or is under4 taken in response to an invitation by the State or

5 local authority;

6 (5) the placement of a military facility or a

7 military activity involving the use of solely Federal

8 property;

9 (6) any military or foreign affairs function (in10 cluding a procurement function under a military or

11 foreign affairs function), but not including the civil

12 works program of the Army Corps of Engineers; and

13 (7) any case in which there is an immediate

14 threat to health or safety that constitutes an emer15 gency requiring immediate response or the issuance

16 of a regulation under section 553(b)(B) of title 5,

17 United States Code, if the taking impact analysis is

18 completed after the emergency action is carried out

19 or the regulation is published.

20 (c) CONTENT OF ANALYSIS.—A private property tak21 ing impact analysis shall be a written statement that

22 includes—

23 (1) the specific purpose of the agency action;
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1 (2) an assessment of the likelihood that a tak2 ing of private property will occur under such agency

3 action;

4 (3) an evaluation of whether such agency action

5 is likely to require compensation to private property

6 owners;

7 (4) alternatives to the agency action that

8 would—

9 (A) achieve the intended purposes of the

10 agency action; and

11 (B) lessen the likelihood that a taking of

12 private property will occur; and

13 (5) an estimate of the potential liability of the

14 Federal Government if the Government is required

15 to compensate a private property owner as a result

16 of the agency action.

17 (d) SUBMISSION TO OMB.—Each agency shall pro18 vide the analysis required under this section as part of

19 any submission otherwise required to be made to the Of20 fice of Management and Budget relating to an agency ac21 tion.

22 (e) PUBLIC AVAILABILITY OF ANALYSIS.—An agency

23 shall—

24 (1) make each private property taking impact

25 analysis available to the public; and
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1 (2) to the greatest extent practicable, transmit

2 a copy of such analysis to the owner and any other

3 person with a property right or interest in the af4 fected property.

5 SEC. 6. ALTERNATIVES TO TAKING OF PRIVATE PROPERTY.

6 Before taking any final agency action, the agency

7 shall fully consider alternatives described in section

8 5(c)(4) and shall, to the maximum extent practicable, alter

9 the action to avoid or minimize the taking of private prop10 erty.

11 SEC. 7. CIVIL ACTION.

12 (a) STANDING.—If an agency action results in the

13 taking of private property, the owner of such property may

14 obtain appropriate relief in a civil action against the agen15 cy that has caused the taking to occur.

16 (b) JURISDICTION.—Notwithstanding sections 1346

17 or 1491 of title 28, United States Code—

18 (1) a civil action against the agency may be

19 brought in either the United States District Court in

20 which the property at issue is located or in the

21 United States Court of Federal Claims, regardless of

22 the amount in controversy; and

23 (2) if property is located in more than 1 judicial

24 district, the claim for relief may be brought in any

25 district in which any part of the property is located.
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1 SEC. 8. GUIDANCE AND REPORTING REQUIREMENTS.

2 (a) GUIDANCE.—The Attorney General shall provide

3 legal guidance in a timely manner, in response to a request

4 by an agency, to assist the agency in complying with this

5 Act.

6 (b) REPORTS.—

7 (1) IN GENERAL.—Not later than 1 year after

8 the date of enactment of this Act and at the end of

9 each 1-year period thereafter, each agency shall sub10 mit a report to the Director of the Office of Manage11 ment and Budget and the Attorney General that

12 identifies—

13 (A) each agency action that has resulted in

14 the preparation of a taking impact analysis;

15 (B) the filing of a taking claim; and

16 (C) any award of compensation pursuant

17 to the just compensation clause of the fifth

18 amendment to the Constitution.

19 (2) PUBLICATION OF REPORTS.—The Director

20 of the Office of Management and Budget and the

21 Attorney General shall publish in the Federal Reg22 ister, on an annual basis, a compilation of the re23 ports of all agencies made under this paragraph.

24 SEC. 9. PRESUMPTIONS IN PROCEEDINGS.

25 For the purpose of any agency action or administra26 tive or judicial proceeding, there shall be a rebuttable pre-
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1 sumption that the costs, values, and estimates in any pri2 vate property takings impact analysis shall be outdated

3 and inaccurate, if—

4 (1) such analysis was completed 5 years or

5 more before the date of such action or proceeding;

6 and

7 (2) such costs, values, or estimates have not

8 been modified within the 5-year period preceding the

9 date of such action or proceeding.

10 SEC. 10. RULES OF CONSTRUCTION.

11 Nothing in this Act shall be construed to—

12 (1) limit any right or remedy, constitute a con13 dition precedent or a requirement to exhaust admin14 istrative remedies, or bar any claim of any person

15 relating to such person’s property under any other

16 law, including claims made under this Act, section

17 1346 or 1402 of title 28, United States Code, or

18 chapter 91 of title 28, United States Code; or

19 (2) constitute a conclusive determination of—

20 (A) the value of any property for purposes

21 of an appraisal for the acquisition of property,

22 or for the determination of damages; or

23 (B) any other material issue.
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1 SEC. 11. EFFECTIVE DATE.

2 This Act shall take effect 120 days after the date of

3 enactment of this Act.

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