I

103D CONGRESS

2D SESSION H. R. 3875

To require certain Federal agencies to protect the rights of private property

owners.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 23, 1994

Mr. TAUZIN (for himself, Mr. FIELDS of Texas, Mr. HAYES, Mr. TAYLOR of

North Carolina, Mr. STENHOLM, Mr. YOUNG of Alaska, Mr. MONTGOMERY, Mr. STUPAK, Mr. SHUSTER, Mr. STUMP, Mr. POMBO, Mr. BREWSTER, Mr. CALLAHAN, Mr. HUTTO, Mr. ORTIZ, Mr. LAUGHLIN, Mrs.

BENTLEY, Mr. BONILLA, Mr. CUNNINGHAM, Ms. DANNER, Mr. PICKETT,

and Mr. PACKARD) introduced the following bill; which was referred jointly to the Committees on Merchant Marine and Fisheries, Public Works

and Transportation, and the Judiciary

APRIL 25, 1994

Additional sponsors: Mr. COMBEST, Mr. OXLEY, Mr. HEFLEY, Mr. MCCRERY,

Mr. DOOLITTLE, Mr. HANSEN, Mr. DORNAN, Mr. PARKER, Mr.

MCCANDLESS, Mr. ROBERTS, Mr. WILSON, Mr. EMERSON, Mr. INHOFE,

Mr. THOMAS of Wyoming, Mr. BOEHNER, Mr. HUTCHINSON, Mr. LIVINGSTON, Mr. HANCOCK, Mr. EVERETT, Mr. BAKER of Louisiana, Mr.

LIGHTFOOT, Mr. BARCIA of Michigan, Mr. BATEMAN, Mr. SKEEN, Mr.

INGLIS of South Carolina, Mr. BALLENGER, Mr. BARTLETT of Maryland,

Mr. CRAPO, Mr. DICKEY, and Mr. ROYCE

A BILL

To require certain Federal agencies to protect the rights

of private property owners.

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

2 This Act may be cited as the ‘‘Private Property Own3 ers Bill of Rights’’.

4 SEC. 2. FINDINGS AND PURPOSE.

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

6 (1) Our democracy was founded on principles of

7 ownership, use, and control of private property.

8 These principles are embodied in the fifth amend9 ment to the Constitution prohibiting the taking of

10 private property without the payment of just com11 pensation.

12 (2) A number of Federal environmental pro13 grams, specifically the Endangered Species Act of

14 1973 (16 U.S.C. 1531 et seq.) and section 404 of

15 the Federal Water Pollution Control Act (33 U.S.C.

16 1344) have been implemented by employees, agents,

17 and representatives of the Federal Government in a

18 manner that deprives private property owners of the

19 use and control of their property.

20 (3) As new Federal programs are proposed that

21 would limit and restrict the use of private property

22 to provide habitat for plant and animal species, the

23 rights of private property owners must be recognized

24 and respected.

25 (4) Private property owners are being forced by

26 Federal policy to resort to extensive, lengthy, and
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1 expensive litigation to protect certain basic civil

2 rights guaranteed by the Constitution.

3 (5) Since many private property owners do not

4 have the financial resources or the extensive commit5 ment of time to proceed in litigation against the

6 Federal Government, a clear Federal policy is need7 ed to guide and direct Federal agencies with respect

8 to their implementation of environmental laws that

9 directly impact private property.

10 (6) While all private property owners should

11 and must abide by current nuisance laws and should

12 not use their property in a manner that harms their

13 neighbors, these laws have traditionally been en14 acted, implemented, and enforced at the State and

15 local levels where they are best able to protect the

16 rights of all private property owners and local

17 citizens.

18 (7) While traditional pollution control laws are

19 intended to protect the general public’s health and

20 physical welfare, current habitat protection pro21 grams are intended to protect the welfare of plant

22 and animal species, while allowing the recreational

23 and esthetic opportunities for the public.

24 (b) PURPOSES.—It is the purpose of this Act to pro25 vide a consistent Federal policy to encourage, support, and
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1 promote the private ownership of property and to ensure

2 that the constitutional and legal rights of private property

3 owners are protected by the Federal Government, its em4 ployees, agents, and representatives.

5 SEC. 3. PROTECTION OF PRIVATE PROPERTY RIGHTS.

6 (a) In implementing and enforcing the Acts, each

7 agency head shall comply with applicable State and tribal

8 government laws, including laws relating to private prop9 erty rights and privacy; and shall administer and imple10 ment the Acts in a manner that has the least impact on

11 private property owners’ constitutional and other legal

12 rights.

13 (b) Each agency head shall develop and implement

14 rules and regulations for ensuring that the constitutional

15 and other legal rights of private property owners are pro16 tected when the agency head makes, or participates with

17 other agencies in the making of, any final decision that

18 restricts the use of private property.

19 SEC. 4. PROPERTY OWNER CONSENT FOR ENTRY.

20 (a) An agency head may not enter privately-owned

21 property to collect information regarding the property, un22 less the private property owner has—

23 (1) consented in writing to that entry;

24 (2) after providing that consent, been provided

25 notice of that entry; and
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1 (3) been notified that any raw data collected

2 from the property must be made available at no

3 cost, if requested by the private property owner.

4 (b) Subsection (a) does not prohibit entry onto prop5 erty for the purpose of obtaining consent or providing no6 tice required under subsection (a).

7 SEC. 5. RIGHT TO REVIEW AND DISPUTE DATA COLLECTED

8 FROM PRIVATE PROPERTY.

9 An agency head may not use data that is collected

10 on privately-owned property to implement or enforce any

11 of the Acts, unless—

12 (1) the agency head has provided to the private

13 property owner—

14 (A) access to the information;

15 (B) a detailed description of the manner in

16 which the information was collected; and

17 (C) an opportunity to dispute the accuracy

18 of the information; and

19 (2) the agency head has determined that the in20 formation is accurate, if the private property owner

21 disputes the information pursuant to subparagraph

22 (C).
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1 SEC. 6. RIGHT TO AN ADMINISTRATIVE APPEAL OF WET2 LANDS DECISIONS.

3 Section 404 of the Federal Water Pollution Control

4 Act (33 U.S.C. 1344) is amended by adding at the end

5 the following new subsection:

6 ‘‘(u) ADMINISTRATIVE APPEALS.—

7 ‘‘(1) The Secretary or Administrator shall, after

8 notice and opportunity for public comment, issue

9 rules to establish procedures to allow private prop10 erty owners or their authorized representatives an

11 opportunity for an administrative appeal of the fol12 lowing actions under this section:

13 ‘‘(A) A determination of regulatory juris14 diction over a particular parcel of property.

15 ‘‘(B) The denial of a permit.

16 ‘‘(C) The terms and conditions of a permit.

17 ‘‘(D) The imposition of an administrative

18 penalty.

19 ‘‘(E) The imposition of an order requiring

20 the private property owner to restore or other21 wise alter the property.

22 ‘‘(2) Rules issued under paragraph (1) shall

23 provide that any administrative appeal of an action

24 described in paragraph (1) shall be heard and de25 cided by an official other than the official who took

26 the action, and shall be conducted at a location
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1 which is in the vicinity of the property involved in

2 the action.’’.

3 SEC. 7. RIGHT TO ADMINISTRATIVE APPEAL UNDER THE

4 ENDANGERED SPECIES ACT OF 1973.

5 Section 11 of the Endangered Species Act of 1973

6 (16 U.S.C. 1540) is amended by adding at the end the

7 following new subsection:

8 ‘‘(i) ADMINISTRATIVE APPEALS.—

9 ‘‘(1) The Secretary shall, after notice and op10 portunity for public comment, issue rules to estab11 lish procedures to allow private property owners or

12 their authorized representatives an opportunity for

13 an administrative appeal of the following actions

14 under this Act:

15 ‘‘(A) A determination that a particular

16 parcel of property is critical habitat of a listed

17 species.

18 ‘‘(B) The denial of a permit for an inciden19 tal take.

20 ‘‘(C) The terms and conditions of an inci21 dental take permit.

22 ‘‘(D) The imposition of an administrative

23 penalty.
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1 ‘‘(E) The imposition of an order prohibit2 ing or substantially limiting the use of the prop3 erty.

4 ‘‘(2) Rules issued under paragraph (1) shall

5 provide that any administrative appeal of an action

6 described in paragraph (1) shall be heard and de7 cided by an official other than the official who took

8 the action, and shall be conducted at a location

9 which is in the vicinity of the parcel of property in10 volved in the action.’’.

11 SEC. 8. COMPENSATION FOR TAKING OF PRIVATE PROP12 ERTY.

13 (a) ELIGIBILITY.—A private property owner that, as

14 a consequence of a final qualified agency action of an

15 agency head, is deprived of 50 percent or more of the fair

16 market value, or the economically viable use, of the af17 fected portion of the property, as determined by a quali18 fied appraisal expert, is entitled to receive compensation

19 in accordance with this section.

20 (b) DEADLINE.—Within 90 days after receipt of a

21 final decision of an agency head that deprives a private

22 property owner of fair market value or viable use of prop23 erty for which compensation is required under subsection

24 (a), the private property owner may submit in writing a
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1 request to the agency head for compensation in accordance

2 with subsection (c).

3 (c) AGENCY HEAD’S OFFER.—The agency head,

4 within 180 days after the receipt of a request for com5 pensation, shall stay the decision and shall provide to the

6 private property owner—

7 (1) an offer to purchase the affected property

8 of the private property owner at a fair market value

9 assuming no use restrictions under the Acts; and

10 (2) an offer to compensate the private property

11 owner for the difference between the fair market

12 value of the property without those restrictions and

13 the fair market value of the property with those re14 strictions.

15 (d) PRIVATE PROPERTY OWNERS’ RESPONSE.—A

16 private property owner shall have 60 days after the date

17 of receipt of the agency head’s offers under subsection (c)

18 (1) and (2) to accept one of the offers or to reject both

19 offers. If the private property owner rejects both offers,

20 the private property owner may submit the matter for ar21 bitration to an arbitrator appointed by the agency head

22 from a list of arbitrators submitted to the agency head

23 by the American Arbitration Association. The arbitration

24 shall be conducted in accordance with the real estate valu25 ation arbitration rules of that association. For purposes
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1 of this section, an arbitration is binding on the agency

2 head and a private property owner as to the amount, if

3 any, of compensation owed to the private property owner

4 and whether for purposes of this section the private prop5 erty owner has been deprived of fair market value or viable

6 use of property for which compensation is required under

7 subsection (a).

8 (e) JUDGMENT.—A qualified agency action of an

9 agency head that deprives a private property owner of

10 property as described in subsection (a), is deemed, at the

11 option of the private property owner to be a taking under

12 the Constitution of the United States and a judgment

13 against the United States if the private property owner—

14 (1) accepts the agency head’s offer under sub15 section (c); or

16 (2) submits to arbitration under subsection (d).

17 (f) PAYMENT.—An agency head shall pay a private

18 property owner any compensation required under the

19 terms of an offer of the agency head that is accepted by

20 the private property owner in accordance with subsection

21 (d), or under a decision of an arbiter under that sub22 section, by not later than 60 days after the date of the

23 acceptance or the date of the issuance of the decision, re24 spectively.
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1 (g) FORM OF PAYMENT.—Payment under this sec2 tion, as that form is agreed to by the agency head and

3 the private property owner, may be in the form of—

4 (1) payment of an amount equal to the fair

5 market value of the property on the day before the

6 date of the final qualified agency action with respect

7 to which the property or interest is acquired;

8 (2) a payment of an amount equal to the reduc9 tion in value; or

10 (3) conveyance of real property or an interest in

11 real property having a fair market value equal to

12 that amount.

13 (h) OTHER RIGHTS PRESERVED.—This section does

14 not preempt, alter, or limit the availability of any remedy

15 for the taking of property or an interest in property that

16 is available under the Constitution or any other law.

17 (i) FINAL JUDGMENTS.—When a private property

18 owner unsuccessfully seeks compensation under this sec19 tion and thereafter files a claim for compensation under

20 the fifth amendment to the Constitution and is successful

21 in obtaining a final judgment ordering compensation from

22 the claims court for that claim, the agency head making

23 the final agency decision resulting in the taking shall reim24 burse the judgment fund for the amount of the judgment
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1 against the United States from funds appropriated to the

2 agency for the 2 fiscal years following payment.

3 SEC. 9. DEFINITIONS.

4 For the purpose of this Act the following definitions

5 apply:

6 (1) ‘‘The Acts’’ means the Endangered Species

7 Act of 1973 (16 U.S.C. 1531 et seq.) and the sec8 tion 404 of the Federal Water Pollution Control Act

9 (33 U.S.C. 1344).

10 (2) ‘‘Agency head’’ means the Secretary or Ad11 ministrator with jurisdiction or authority to take a

12 final agency action under the Endangered Species

13 Act of 1973 (16 U.S.C. 1531 et seq.) or section 404

14 of the Federal Water Pollution Control Act (33

15 U.S.C. 1344).

16 (3) ‘‘Non-Federal person’’ means a person

17 other than an officer, employee, agent, department,

18 or instrumentality of—

19 (A) the Federal Government; or

20 (B) a foreign government.

21 (4) ‘‘Private property owner’’ means a non-Fed22 eral person (other than an officer, employee, agent,

23 department, or instrumentality of a State, munici24 pality, or political subdivision of a State, or a State,

25 municipality, or subdivision of a State) that—
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1 (A) owns property referred to in paragraph

2 (5) (A) or (B); or

3 (B) holds property referred to in para4 graph (5)(C).

5 (5) ‘‘Property’’ means—

6 (A) land;

7 (B) any interest in land; and

8 (C) any proprietary water right.

9 (6) ‘‘Qualified agency action’’ means an agency

10 action (as that term is defined in section 551(13) of

11 title 5, United States Code) that is—

12 (A) under section 404 of the Federal

13 Water Pollution Control Act (33 U.S.C. 1344);

14 or

15 (B) under the Endangered Species Act of

16 1973 (16 U.S.C. 1531 et seq.).

17 SEC. 10. PRIVATE PROPERTY OWNER PARTICIPATION IN

18 COOPERATIVE AGREEMENTS.

19 Section 6 of the Endangered Species Act of 1973 (16

20 U.S.C. 1535) is amended by adding at the end the follow21 ing new subsection:

22 ‘‘(j) Notwithstanding any other provision of this sec23 tion, when the Secretary enters into a management agree24 ment under subsection (b) with any non-Federal person

25 that establishes restrictions on the use of property, the
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1 Secretary shall notify all private property owners or les2 sees of the property that is subject to the management

3 agreement and shall provide an opportunity for each pri4 vate property owner or lessee to participate in the manage5 ment agreement.’’.

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