I

106TH CONGRESS

1ST SESSION H. R. 1142

To ensure that landowners receive treatment equal to that provided to the

Federal Government when property must be used.

IN THE HOUSE OF REPRESENTATIVES

MARCH 17, 1999

Mr. YOUNG of Alaska (for himself, Mr. TAUZIN, Mr. POMBO, Mr. PETERSON

of Pennsylvania, Mr. DOOLITTLE, Mrs. CHENOWETH, Mr. RADANOVICH,

Mr. CANNON, Mr. SHADEGG, Mr. SCHAFFER, Mr. WALDEN of Oregon,

Mr. HASTINGS of Washington, Mr. SIMPSON, Mr. HANSEN, Mr.

MCKEON, Mr. HERGER, Mr. HILL of Montana, Mr. GALLEGLY, Mr.

DELAY, Mr. THOMAS, Mr. BAKER, Mr. SKEEN, Mr. THORNBERRY, Mrs.

CUBIN, Mr. CALVERT, and Mr. BONILLA) introduced the following bill;

which was referred to the Committee on Resources

A BILL

To ensure that landowners receive treatment equal to that

provided to the Federal Government when property must

be used.

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 ‘‘Landowners Equal

5 Treatment Act of 1999’’.
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1 SEC. 2. FINDINGS AND PURPOSE.

2 (a) FINDINGS.—The Congress finds and declares the

3 following:

4 (1) The Secretary of the Interior, through the

5 United States Fish and Wildlife Service, recently de6 manded and received compensation for the loss of

7 use of federally owned property resulting from con8 structive use of the property for other public pur9 poses, in an amount of approximately $26,000,000.

10 (2) The Secretary of Transportation has pro11 mulgated a regulation allowing for compensation of

12 Federal agencies for the lost use of agency property

13 for public purposes, through a definition of the term

14 ‘‘constructive use’’ that includes off-site impacts of

15 Federal agency actions on federally owned property.

16 (3) The Federal Government enjoys no right

17 under the Constitution to compensation for use of

18 Federal agency property for other public purposes,

19 while the rights of private persons to be com20 pensated for the taking of their property by the Gov21 ernment for a public purpose is a fundamental right

22 protected by the Fifth and Fourteenth Amendments

23 to the Constitution.

24 (4) Private property owners should be com25 pensated in a manner that is at least as equitable

26 as the compensation afforded to Federal agencies
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1 when their property is used or constructively used

2 for other public purposes.

3 (5) Fair and equitable treatment of private

4 property owners will increase the willingness of pri5 vate property owners to provide habitat for wildlife

6 and plants protected under the Endangered Species

7 Act of 1973 (16 U.S.C. 1531 et seq.).

8 (b) PURPOSE.—The purpose of this Act is to increase

9 the efforts of private property owners to protect and re10 store habitat for wildlife, by ensuring that their constitu11 tional and legal property rights will be honored, respected,

12 and protected in the implementation of the Endangered

13 Species Act of 1973.

14 SEC. 3. MINIMIZING IMPACTS ON PRIVATE PROPERTY.

15 The Endangered Species Act of 1973 (16 U.S.C.

16 1531 et seq.) is amended by adding at the end the fol17 lowing new section:

18 ‘‘MINIMIZING IMPACTS ON PRIVATE PROPERTY

19 ‘‘SEC. 19. (a) IN GENERAL.—In implementing this

20 Act, the head of an agency shall make every possible effort

21 to avoid, minimize, or mitigate impacts on non-Federal

22 property that result in Federal use of the property as a

23 direct result of the action of the agency head under this

24 Act or in furtherance of the purposes of this Act. An agen25 cy shall not take action that results in a Federal use of

26 non-Federal property under this Act unless the agency—
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1 ‘‘(1) obtains the written permission of its

2 owner;

3 ‘‘(2) negotiates a voluntary agreement author4 izing that use; or

5 ‘‘(3) pays compensation in accordance with this

6 section.

7 ‘‘(b) COMPENSATION FOR FEDERAL USE OF NON8 FEDERAL PROPERTY.—An agency that takes action under

9 this Act or in furtherance of the purposes of this Act that

10 results in a Federal use of non-Federal property or any

11 portion of non-Federal property without the written con12 sent of the owner of the property shall compensate the

13 owner for the fair market value of the Federal use of the

14 property or portion. Compensation paid shall reflect the

15 duration of the Federal use as necessary to achieve the

16 purposes of this Act.

17 ‘‘(c) REQUEST OF OWNER.—An owner of non-Fed18 eral property seeking compensation under this section

19 shall make a written request for compensation to the agen20 cy implementing the agency action resulting in the Federal

21 use of property. The request shall, at a minimum, identify

22 the affected portion of the property, the nature of the Fed23 eral use of non-Federal property for which the compensa24 tion is sought, and the amount of compensation sought.
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1 ‘‘(d) NEGOTIATIONS.—The agency may negotiate

2 with the owner to reach agreement on the amount of the

3 compensation under this section, the terms of any agree4 ment for payment, and the terms of any Federal use of

5 non-Federal property for which compensation is paid. If

6 such an agreement is reached, the agency shall within 6

7 months pay the owner the amount agreed upon. An agree8 ment under this section may include a transfer of title or

9 an agreement to limit the period of time of the Federal

10 use of non-Federal property.

11 ‘‘(e) CHOICE OF REMEDIES.—If, not later than 180

12 days after the written request is made, the parties have

13 not reached an agreement on compensation, the owner of

14 the property may elect binding arbitration or seek com15 pensation due under this section in a civil action.

16 ‘‘(f) ARBITRATION.—The procedures that govern the

17 arbitration shall, as nearly as practicable, be those estab18 lished under title 9, United States Code, for arbitration

19 proceedings to which that title applies. An award made

20 in such arbitration shall include a reasonable attorney’s

21 fee and other arbitration costs, including appraisal fees.

22 The agency shall promptly pay any award made to the

23 owner.

24 ‘‘(g) CIVIL ACTIONS.—A civil action to enforce this

25 section may be filed under section 11(g). An owner who
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1 prevails in a civil action against the agency pursuant to

2 this section shall be entitled to, and the agency shall be

3 liable for, the amount of compensation awarded plus rea4 sonable attorney’s fees and other litigation costs, including

5 appraisal fees. The court shall award interest on the

6 amount of any compensation from the time of the Federal

7 use of non-Federal property.

8 ‘‘(h) SOURCE OF PAYMENTS.—Any payment made

9 under this section to an owner of property and any judg10 ment obtained by an owner of property in a civil action

11 under this section shall, notwithstanding any other provi12 sion of law, be made from the annual appropriation of the

13 agency that took the agency action giving rise to the pay14 ment or civil action. If the agency action resulted from

15 a requirement imposed by another agency, then the agency

16 making the payment or satisfying the judgment may seek

17 partial or complete reimbursement from the appropriated

18 funds of the other agency. For this purpose, the head of

19 the agency concerned may transfer or reprogram any ap20 propriated funds available to the agency. If insufficient

21 funds exist for the payment or to satisfy the judgment,

22 it shall be the duty of the head of the agency to seek the

23 appropriation of such funds for the next fiscal year.

24 ‘‘(i) AVAILABILITY OF APPROPRIATIONS.—Notwith25 standing any other provision of law, any obligation of the
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1 United States to make any payment under this section

2 shall be subject to the availability of appropriations.

3 ‘‘(j) DUTY OF NOTICE TO OWNERS.—An agency may

4 not take any action that is a Federal use of non-Federal

5 property unless the agency has given 30 days notice to

6 each owner of the property directly affected explaining

7 their rights under this section and either obtaining their

8 permission for the Federal use or providing the procedures

9 for obtaining any compensation that may be available

10 under this section.

11 ‘‘(k) RULES OF CONSTRUCTION.—The following rules

12 of construction shall apply to this Act:

13 ‘‘(1) OTHER RIGHTS PRESERVED.—Nothing in

14 this Act shall be construed to limit any right to com15 pensation that exists under the Constitution or

16 under other laws.

17 ‘‘(2) EXTENT OF FEDERAL AUTHORITY.—Pay18 ment of compensation under this section (other than

19 when property is bought by the Federal Government

20 at the option of the owner) shall not confer any

21 rights on the Federal Government other than the

22 Federal use of non-Federal property agreed to so

23 that the agency action may achieve the species con24 servation purposes of this Act.

25 ‘‘(l) DEFINITIONS.—For the purposes of this section:
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1 ‘‘(1) AGENCY.—The term ‘agency’ has the

2 meaning given that term in section 551 of title 5,

3 United States Code.

4 ‘‘(2) FEDERAL USE.—(A) The term ‘Federal

5 use’ means—

6 ‘‘(i) any action under this Act to—

7 ‘‘(I) permanently incorporate non8 Federal property into a Federal facility;

9 ‘‘(II) place non-Federal property

10 under the control of the Secretary; or

11 ‘‘(III) temporarily occupy non-Federal

12 property in a manner that is adverse to the

13 constitutional right of the owner of the

14 property against taking of the property by

15 the Federal Government; and

16 ‘‘(ii) any constructive use of non-Federal

17 property.

18 ‘‘(B) In this paragraph the term ‘constructive

19 use’ means any action described in subparagraph

20 (C) taken under this Act that results in—

21 ‘‘(i) substantial diminution in the normal

22 or reasonably expected uses of non-Federal

23 property;
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1 ‘‘(ii) a reduction in the fair market value

2 of non-Federal property of 25 percent or more;

3 or

4 ‘‘(iii) in the case of the right to receive

5 water, any diminution in the quantity of water

6 received or available for use.

7 ‘‘(C) The actions referred to in subparagraph

8 (B) are the following:

9 ‘‘(i) The imposition or enforcement of a

10 prohibition of use of non-Federal property the

11 purpose of which is to provide or retain habitat

12 for any species of wildlife or plant determined

13 to be an endangered species or threatened spe14 cies.

15 ‘‘(ii) A designation of non-Federal property

16 as critical habitat under this Act.

17 ‘‘(iii) The denial of a permit under section

18 10 that results in the loss of the ability to use

19 non-Federal property in order to provide habi20 tat for wildlife or plants.

21 ‘‘(iv) An agency action pursuant to a rea22 sonable and prudent alternative suggested by

23 the Secretary under section 7, that would cause

24 an agency to restrict the use of non-Federal

25 property.
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1 ‘‘(v) The imposition by any governmental

2 entity of a limitation or restriction on an other3 wise permissible use of non-Federal property by

4 the owner of the property, as a condition of a

5 Federal agency providing any land, money, per6 mit, or other benefit to the governmental entity,

7 if imposition of the limitation or restriction by

8 the agency directly would constitute a Federal

9 use of non-Federal property under the other

10 provisions of this paragraph, unless the govern11 mental entity has some other legal basis for im12 posing the limitation or restriction.

13 ‘‘(3) FAIR MARKET VALUE.—The term ‘fair

14 market value’ means the most probable price at

15 which property or a right to use property would

16 change hands, in a competitive and open market

17 under all conditions requisite to fair sale, between a

18 willing buyer and willing seller, neither being under

19 any compulsion to buy or sell and both having rea20 sonable knowledge of relevant facts, and without re21 gard to the presence of any species protected under

22 this Act. With respect to a right to use property,

23 fair market value shall be determined on or imme24 diately before the exercise of the right.
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1 ‘‘(4) LAW OF THE STATE.—The term ‘law of

2 the State’ includes the law of a political subdivision

3 of a State.

4 ‘‘(5) NON-FEDERAL PROPERTY.—The term

5 ‘non-Federal property’ means property which is

6 owned by a person other than any Federal entity of

7 government.

8 ‘‘(6) PROPERTY.—The term ‘property’ means

9 land, an interest in land, the right to use or receive

10 water, and any personal property, as defined under

11 the law of the State.’’.

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