Calendar No. 498

104TH CONGRESS

2D SESSION S. 1954

A BILL

To establish a uniform and more efficient Federal

guaranteed by the fifth amendment.process for protecting property owners’ rights

JULY 17, 1996

Read the second time and placed on the calendar
II

Calendar No. 498

104TH CONGRESS

2D SESSION S. 1954

To establish a uniform and more efficient Federal process for protecting

property owners’ rights guaranteed by the fifth amendment.

IN THE SENATE OF THE UNITED STATES

JULY 16, 1996

Mr. HATCH (for himself, Mr. LOTT, Mr. HEFLIN, Mr. ABRAHAM, Mr.

ASHCROFT, Mr. BURNS, Mr. CRAIG, Mr. FAIRCLOTH, Mr. GRAMS, Mr.

KEMPTHORNE, Mr. MACK, Mr. MCCONNELL, Mr. BENNETT, Mr. BOND,

Mr. BROWN, Mr. GRASSLEY, Mr. NICKLES, Mr. SIMPSON, Mr. STEVENS,

Mr. THURMOND, Mr. PRESSLER, Mr. SHELBY, Mr. COCHRAN, Mr. WARNER, Mr. THOMAS, and Mr. MURKOWSKI) introduced the following bill;

which was read the first time

JULY 17, 1996

Read the second time and placed on the calendar

A BILL

To establish a uniform and more efficient Federal process

for protecting property owners’ rights guaranteed by the

fifth amendment.

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 ‘‘Omnibus Property

3 Rights Act of 1996’’.

4 TITLE I—FINDINGS AND

5 PURPOSES

6 SEC. 101. FINDINGS.

7 The Congress finds that—

8 (1) the private ownership of property is essen9 tial to a free society and is an integral part of the

10 American tradition of liberty and limited govern11 ment;

12 (2) the framers of the United States Constitu13 tion, in order to protect private property and liberty,

14 devised a framework of Government designed to dif15 fuse power and limit Government;

16 (3) to further ensure the protection of private

17 property, the fifth amendment to the United States

18 Constitution was ratified to prevent the taking of

19 private property by the Federal Government, except

20 for public use and with just compensation;

21 (4) the purpose of the takings clause of the

22 fifth amendment of the United States Constitution,

23 as the Supreme Court stated in Armstrong v. United

24 States, 364 U.S. 40, 49 (1960), is ‘‘to bar Govern25 ment from forcing some people alone to bear public
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1 burdens, which in all fairness and justice, should be

2 borne by the public as a whole’’;

3 (5) the Federal Government has singled out

4 property holders to shoulder the cost that should be

5 borne by the public, in violation of the just com6 pensation requirement of the takings clause of the

7 fifth amendment of the United States Constitution;

8 (6) there is a need both to restrain the Federal

9 Government in its overzealous regulation of the pri10 vate sector and to protect private property, which is

11 a fundamental right of the American people; and

12 (7) the incremental, fact-specific approach that

13 courts now are required to employ in the absence of

14 adequate statutory language to vindicate property

15 rights under the fifth amendment of the United

16 States Constitution has been ineffective and costly

17 and there is a need for Congress to clarify the law

18 and provide an effective remedy.

19 SEC. 102. PURPOSE.

20 The purpose of this Act is to encourage, support, and

21 promote the private ownership of property by ensuring the

22 constitutional and legal protection of private property by

23 the United States Government by—
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1 (1) the establishment of a new Federal judicial

2 claim through which to vindicate and protect prop3 erty rights;

4 (2) the simplification and clarification of court

5 jurisdiction over property right claims;

6 (3) the establishment of an administrative pro7 cedure that requires the Federal Government to as8 sess the impact of government action on holders of

9 private property;

10 (4) the minimization, to the greatest extent pos11 sible, of the taking of private property by the Fed12 eral Government and to ensure that just compensa13 tion is paid by the Government for any taking; and

14 (5) the establishment of administrative com15 pensation procedures involving the enforcement of

16 the Endangered Species Act of 1973 and section

17 404 of the Federal Water Pollution Control Act.

18 TITLE II—PROPERTY RIGHTS

19 LITIGATION RELIEF

20 SEC. 201. FINDINGS.

21 The Congress finds that—

22 (1) property rights have been abrogated by the

23 application of laws, regulations, and other actions by

24 the Federal Government that adversely affect the

25 value of private property;
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1 (2) certain provisions of sections 1346 and

2 1402 and chapter 91 of title 28, United States Code

3 (commonly known as the Tucker Act), that delineate

4 the jurisdiction of courts hearing property rights

5 claims, complicates the ability of a property owner to

6 vindicate a property owner’s right to just compensa7 tion for a governmental action that has caused a

8 physical or regulatory taking;

9 (3) current law—

10 (A) forces a property owner to elect be11 tween equitable relief in the district court and

12 monetary relief (the value of the property

13 taken) in the United States Court of Federal

14 Claims;

15 (B) is used to urge dismissal in the district

16 court on the ground that the plaintiff should

17 seek just compensation in the Court of Federal

18 Claims; and

19 (C) is used to urge dismissal in the Court

20 of Federal Claims on the ground that plaintiff

21 should seek equitable relief in district court;

22 (4) property owners cannot fully vindicate prop23 erty rights in one court;
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1 (5) property owners should be able to fully re2 cover for a taking of their private property in one

3 court;

4 (6) certain provisions of section 1346 and 1402

5 and chapter 91 of title 28, United States Code (com6 monly known as the Tucker Act) should be amend7 ed, giving both the district courts of the United

8 States and the Court of Federal Claims jurisdiction

9 to hear all claims relating to property rights; and

10 (7) section 1500 of title 28, United States

11 Code, which denies the Court of Federal Claims ju12 risdiction to entertain a suit which is pending in an13 other court and made by the same plaintiff, should

14 be repealed.

15 SEC. 202. PURPOSES.

16 The purposes of this title are to—

17 (1) establish a clear, uniform, and efficient ju18 dicial process whereby aggrieved property owners

19 can obtain vindication of property rights guaranteed

20 by the fifth amendment to the United States Con21 stitution and this Act;

22 (2) amend the Tucker Act, including the repeal

23 of section 1500 of title 28, United States Code;

24 (3) rectify the constitutional imbalance between

25 the Federal Government and the States; and
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1 (4) require the Federal Government to com2 pensate property owners for the deprivation of prop3 erty rights that result from State agencies’ enforce4 ment of federally mandated programs.

5 SEC. 203. DEFINITIONS.

6 For purposes of this title the term—

7 (1) ‘‘agency’’ means a department, agency,

8 independent agency, or instrumentality of the United

9 States, including any military department, Govern10 ment corporation, Government-controlled corpora11 tion, or other establishment in the executive branch

12 of the United States Government;

13 (2) ‘‘agency action’’ means any action, inaction,

14 or decision taken by an agency or State agency that

15 at the time of such action, inaction, or decision ad16 versely affects private property rights;

17 (3) ‘‘just compensation’’—

18 (A) means compensation equal to the full

19 extent of a property owner’s loss, including the

20 fair market value of the private property taken,

21 whether the taking is by physical occupation or

22 through regulation, exaction, or other means;

23 and
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1 (B) shall include compounded interest cal2 culated from the date of the taking until the

3 date the United States tenders payment;

4 (4) ‘‘owner’’ means the owner or possessor of

5 property or rights in property at the time the taking

6 occurs, including when—

7 (A) the statute, regulation, rule, order,

8 guideline, policy, or action is passed or promul9 gated; or

10 (B) the permit, license, authorization, or

11 governmental permission is denied or sus12 pended;

13 (5) ‘‘private property’’ or ‘‘property’’ means all

14 interests constituting real property, as defined by

15 Federal or State law, protected under the fifth

16 amendment to the United States Constitution, any

17 applicable Federal or State law, or this Act, and

18 more specifically constituting—

19 (A) real property, whether vested or

20 unvested, including—

21 (i) estates in fee, life estates, estates

22 for years, or otherwise;

23 (ii) inchoate interests in real property

24 such as remainders and future interests;
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1 (iii) personalty that is affixed to or

2 appurtenant to real property;

3 (iv) easements;

4 (v) leaseholds;

5 (vi) recorded liens; and

6 (vii) contracts or other security inter7 ests in, or related to, real property;

8 (B) the right to use water or the right to

9 receive water, including any recorded liens on

10 such water right; or

11 (C) rents, issues, and profits of land, in12 cluding minerals, timber, fodder, crops, oil and

13 gas, coal, or geothermal energy;

14 (6) ‘‘State agency’’ means any State depart15 ment, agency, political subdivision, or instrumental16 ity that—

17 (A) carries out or enforces a regulatory

18 program required under Federal law;

19 (B) is delegated administrative or sub20 stantive responsibility under a Federal regu21 latory program; or

22 (C) receives Federal funds in connection

23 with a regulatory program established by a

24 State,
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1 if the State enforcement of the regulatory program,

2 or the receipt of Federal funds in connection with a

3 regulatory program established by a State, is di4 rectly related to the taking of private property seek5 ing to be vindicated under this Act; and

6 (7) ‘‘taking of private property’’, ‘‘taking’’, or

7 ‘‘take’’—

8 (A) means any action whereby restricting

9 the ownership, alienability, or use of private

10 property is an object of that action and is taken

11 so as to require compensation under the fifth

12 amendment to the United States Constitution

13 or under this Act, including by physical inva14 sion, regulation, exaction, condition, or other

15 means; and

16 (B) shall not include—

17 (i) a condemnation action filed by the

18 United States in an applicable court; or

19 (ii) an action filed by the United

20 States relating to criminal forfeiture.

21 SEC. 204. COMPENSATION FOR TAKEN PROPERTY.

22 (a) IN GENERAL.—No agency or State agency, shall

23 take private property except for public use and with just

24 compensation to the property owner. A property owner

25 shall receive just compensation if—
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1 (1) as a consequence of an action of any agen2 cy, or State agency, private property (whether all or

3 in part) has been physically invaded or otherwise

4 taken without the consent of the owner; and

5 (2)(A) such action does not substantially ad6 vance the stated governmental interest to be

7 achieved by the legislation or regulation on which

8 the action is based;

9 (B) such action exacts or affects the owner’s

10 constitutional or otherwise lawful right to use the

11 property or a portion of such property as a condition

12 for the granting of a permit, license, variance, or

13 any other agency action without a rough proportion14 ality between the stated need for the required dedi15 cation and the impact of the proposed use of the

16 property;

17 (C) such action results in the property owner

18 being deprived, either temporarily or permanently, of

19 all or substantially all economically beneficial or pro20 ductive use of the property or that part of the prop21 erty affected by the action without a showing that

22 such deprivation inheres in the title itself;

23 (D) such action results in the property owner

24 being deprived, either temporarily or permanently of

25 50 percent or more of the value of the property or
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1 the value of that part of the property affected by the

2 action without a showing that such deprivation in3 heres in the title itself; or

4 (E) under any other circumstance where a tak5 ing has occurred within the meaning of the fifth

6 amendment of the United States Constitution.

7 (b) NO CLAIM AGAINST STATE OR STATE INSTRU8 MENTALITY.—No action may be filed under this section

9 against a State agency for carrying out the functions de10 scribed under section 203(6). Claims arising from the ac11 tion, inaction, or decision of a State agency are properly

12 filed against the Federal agency which administers the rel13 evant Federal program.

14 (c) BURDEN OF PROOF.—(1) The Government shall

15 bear the burden of proof in any action described under—

16 (A) subsection (a)(2)(A), with regard to show17 ing the nexus between the stated governmental pur18 pose of the governmental interest and the impact on

19 the proposed use of private property;

20 (B) subsection (a)(2)(B), with regard to show21 ing the proportionality between the exaction or af22 fect and the impact of the proposed use of the prop23 erty; and
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1 (C) subsection (a)(2)(C), with regard to show2 ing that such deprivation of value inheres in the title

3 to the property.

4 (2) The property owner shall have the burden of

5 proof in any action described under subsection (a)(2)(D),

6 with regard to establishing the diminution of value of

7 property.

8 (d) COMPENSATION AND NUISANCE EXCEPTION TO

9 PAYMENT OF JUST COMPENSATION.—(1) No compensa10 tion shall be required by this Act if the owner’s use or

11 proposed use of the property is a nuisance as commonly

12 understood and defined by background principles of nui13 sance and property law, as understood within the State

14 in which the property is situated. To bar an award of dam15 ages under this Act, the United States shall have the bur16 den of proof to establish that the use or proposed use of

17 the property is a nuisance.

18 (2)(A) Subject to paragraph (1), if an agency action

19 directly takes property or a portion of property under sub20 section (a), compensation to the owner of the property

21 that is affected by the action shall be either the greater

22 of an amount equal to the difference between—

23 (i) the fair market value of the property or the

24 affected portion of the property before such property
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1 or the affected portion of such property became the

2 object of the agency action; and

3 (ii) the fair market value of the property or the

4 affected portion of the property when such property

5 or the affected portion of such property becomes

6 subject to the agency action.

7 (B) Where appropriate, the calculation of fair market

8 value shall include business losses.

9 (e) TRANSFER OF PROPERTY INTEREST.—The Unit10 ed States shall take title to the property interest for which

11 the United States pays a claim under this Act.

12 (f) SOURCE OF COMPENSATION.—Awards of com13 pensation referred to in this section, whether by judgment,

14 settlement, or administrative action, shall be promptly

15 paid by the agency out of currently available appropria16 tions supporting the activities giving rise to the claims for

17 compensation. If the agency action resulted from a re18 quirement imposed by another agency, the agency making

19 the payment or satisfying the judgment may seek partial

20 or complete reimbursement from the appropriated funds

21 of the other agency. If insufficient funds are available to

22 the agency in the fiscal year in which the award becomes

23 final, the agency shall either pay the award from appro24 priations available in the next fiscal year or promptly seek

25 additional appropriations for such purpose.
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1 SEC. 205. JURISDICTION AND JUDICIAL REVIEW.

2 (a) IN GENERAL.—A property owner may file a civil

3 action under this Act to challenge the validity of any agen4 cy action that adversely affects the owner’s interest in pri5 vate property in either the United States District Court

6 or the United States Court of Federal Claims. This section

7 constitutes express waiver of the sovereign immunity of

8 the United States. Notwithstanding any other provision of

9 law and notwithstanding the issues involved, the relief

10 sought, or the amount in controversy, each court shall

11 have concurrent jurisdiction over both claims for monetary

12 relief and claims seeking invalidation of any Act of Con13 gress or any regulation of an agency as defined under this

14 Act affecting private property rights. The plaintiff shall

15 have the election of the court in which to file a claim for

16 relief.

17 (b) APPEALS.—In any appeal resulting from a claim

18 under this section, the United States Court of Appeals for

19 the Federal Circuit shall have exclusive jurisdiction of—

20 (1) an appeal from a final decision of a district

21 court of the United States, the United States Dis22 trict Court of Guam, the United States District

23 Court of the Virgin Islands, or the District Court for

24 the Northern Mariana Islands, if the jurisdiction of

25 that court was based, in whole or in part, on sub26 section (a); and
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1 (2) an appeal from a final decision of the Unit2 ed States Court of Federal Claims if that jurisdic3 tion was based, in whole or in part, on subsection

4 (a).

5 (c) STANDING.—Persons adversely affected by an

6 agency action taken under this Act shall have standing

7 to challenge and seek judicial review of that action.

8 (d) AMENDMENTS TO TITLE 28, UNITED STATES

9 CODE.—(1) Section 1491(a) of title 28, United States

10 Code, is amended—

11 (A) in paragraph (1) by amending the first sen12 tence to read as follows: ‘‘The United States Court

13 of Federal Claims shall have jurisdiction to render

14 judgment upon any claim against the United States

15 for monetary relief founded either upon the Con16 stitution or any Act of Congress or any regulation

17 of an executive department, or upon any express or

18 implied contract with the United States, in cases not

19 sounding in tort, or for invalidation of any Act of

20 Congress or any regulation of an executive depart21 ment that adversely affects private property rights

22 in violation of the fifth amendment of the United

23 States Constitution’’;

24 (B) in paragraph (2) by inserting before the

25 first sentence the following: ‘‘In any case within its
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1 jurisdiction, the Court of Federal Claims shall have

2 the power to grant injunctive and declaratory relief

3 when appropriate.’’; and

4 (C) by adding at the end thereof the following

5 new paragraphs:

6 ‘‘(4) In cases otherwise within its jurisdiction, the

7 Court of Federal Claims shall also have supplemental ju8 risdiction, concurrent with the courts designated in section

9 1346(b) of this title, to render judgment upon any related

10 tort claim authorized under section 2674 of this title.

11 ‘‘(5) In proceedings within the jurisdiction of the

12 Court of Federal Claims which constitute judicial review

13 of agency action (rather than de novo proceedings), the

14 provisions of section 706 of title 5 shall apply.’’.

15 (2)(A) Section 1500 of title 28, United States Code,

16 is repealed.

17 (B) The table of sections for chapter 91 of title 28,

18 United States Code, is amended by striking out the item

19 relating to section 1500.

20 SEC. 206. STATUTE OF LIMITATIONS.

21 The statute of limitations for actions brought under

22 this title shall be 6 years from the date of the taking of

23 private property.
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1 SEC. 207. ATTORNEYS’ FEES AND COSTS.

2 The court, in issuing any final order in any action

3 brought under this title, shall award costs of litigation (in4 cluding reasonable attorney and expert witness fees) to

5 any prevailing plaintiff.

6 SEC. 208. RULES OF CONSTRUCTION.

7 Nothing in this title shall be construed to interfere

8 with the authority of any State to create additional prop9 erty rights.

10 SEC. 209. EFFECTIVE DATE.

11 The provisions of this title and amendments made by

12 this title shall take effect on the date of the enactment

13 of this Act and shall apply to any agency action that oc14 curs after such date.

15 TITLE III—ALTERNATIVE

16 DISPUTE RESOLUTION

17 SEC. 301. ALTERNATIVE DISPUTE RESOLUTION.

18 (a) IN GENERAL.—Either party to a dispute over a

19 taking of private property as defined under title II of this

20 Act or litigation commenced under such title may elect to

21 resolve the dispute through settlement or arbitration. In

22 the administration of this section—

23 (1) such alternative dispute resolution may only

24 be effectuated by the consent of all parties;

25 (2) arbitration procedures shall be in accord26 ance with the alternative dispute resolution proce-
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1 dures established by the American Arbitration Asso2 ciation; and

3 (3) in no event shall arbitration be a condition

4 precedent or an administrative procedure to be ex5 hausted before the filing of a civil action under this

6 Act.

7 (b) COMPENSATION AS A RESULT OF ARBITRA8 TION.—The amount of arbitration awards shall be paid

9 from the responsible agency’s currently available appro10 priations supporting the agency’s activities giving rise to

11 the claim for compensation. If insufficient funds are avail12 able to the agency in the fiscal year in which the award

13 becomes final, the agency shall either pay the award from

14 appropriations available in the next fiscal year or promptly

15 seek additional appropriations for such purpose.

16 (c) REVIEW OF ARBITRATION.—(1) Appeal from ar17 bitration decisions shall be to the United States District

18 Court or the United States Court of Federal Claims in

19 the manner prescribed by law for the claim under this Act.

20 (2) The provisions of title 9, United States Code (re21 lating to arbitration), shall apply to enforcement of awards

22 rendered under this section.

23 (d) PAYMENT OF CERTAIN COMPENSATION.—In any

24 appeal under subsection (c), the amount of the award of

25 compensation shall be promptly paid by the agency from
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1 appropriations supporting the activities giving rise to the

2 claim for compensation currently available at the time of

3 final action on the appeal. If insufficient funds are avail4 able to the agency in the fiscal year in which the award

5 becomes final, the agency shall either pay the award from

6 appropriations available in the next fiscal year or promptly

7 seek additional appropriations for such purpose.

8 TITLE IV—PRIVATE PROPERTY

9 TAKING IMPACT ANALYSIS

10 SEC. 401. PURPOSES.

11 The purposes of this title are—

12 (1) to protect the health, safety, welfare, and

13 rights of the public; and

14 (2) to the extent practicable, avoid takings of

15 private property by assessing the effect of govern16 ment action on private property rights.

17 SEC. 402. DEFINITIONS.

18 For purposes of this title the term—

19 (1) ‘‘agency’’ means an agency as defined under

20 section 203 of this Act, but shall not include the

21 General Accounting Office;

22 (2) ‘‘rule’’ has the same meaning as such term

23 is defined under section 551(4) of title 5, United

24 States Code;
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1 (3) ‘‘property or private property’’ refers to all

2 property protected by the takings clause of the fifth

3 amendment of the United States Constitution; and

4 (4) ‘‘taking of private property’’ has the same

5 meaning as such term is defined under section 203

6 of this Act.

7 SEC. 403. PRIVATE PROPERTY TAKING IMPACT ANALYSIS.

8 (a) IN GENERAL.—(1) The Congress authorizes and

9 directs that, to the fullest extent possible—

10 (A) the policies, regulations, and public laws of

11 the United States shall be interpreted and adminis12 tered in accordance with the policies under this title;

13 and

14 (B) subject to paragraph (2), all agencies of the

15 Federal Government shall complete a private prop16 erty taking impact analysis before issuing or promul17 gating any policy, regulation, proposed legislation, or

18 related agency action which is likely to result in a

19 taking of private property.

20 (2) The provisions of paragraph (1)(B) shall not

21 apply to—

22 (A) an action in which the power of eminent do23 main is formally exercised;

24 (B) an action taken—
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1 (i) with respect to property held in trust by

2 the United States; or

3 (ii) in preparation for, or in connection

4 with, treaty negotiations with foreign nations;

5 (C) a law enforcement action, including seizure,

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

7 as evidence in a criminal proceeding;

8 (D) a study or similar effort or planning activ9 ity;

10 (E) a communication between an agency and a

11 State or local land-use planning agency concerning

12 a planned or proposed State or local activity that

13 regulates private property, regardless of whether the

14 communication is initiated by an agency or is under15 taken in response to an invitation by the State or

16 local authority;

17 (F) the placement of a military facility or a

18 military activity involving the use of solely Federal

19 property;

20 (G) any military or foreign affairs function (in21 cluding a procurement function under a military or

22 foreign affairs function), but not including the civil

23 works program of the Army Corps of Engineers; and

24 (H) any case in which there is an immediate

25 threat to health or safety that constitutes an emer-
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1 gency requiring immediate response or the issuance

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

3 United States Code, if the taking impact analysis is

4 completed after the emergency action is carried out

5 or the regulation is published.

6 (3) A private property taking impact analysis shall

7 be a written statement that includes—

8 (A) the specific purpose of the policy, regula9 tion, proposal, recommendation, or related agency

10 action;

11 (B) an assessment of the likelihood that a tak12 ing of private property will occur under such policy,

13 regulation, proposal, recommendation, or related

14 agency action;

15 (C) an evaluation of whether such policy, regu16 lation, proposal, recommendation, or related agency

17 action is likely to require compensation to private

18 property owners;

19 (D) alternatives to the policy, regulation, pro20 posal, recommendation, or related agency action that

21 would achieve the intended purposes of the agency

22 action and lessen the likelihood that a taking of pri23 vate property will occur; and
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1 (E) an estimate of the potential liability of the

2 Federal Government if the Government is required

3 to compensate a private property owner.

4 (4) Each agency shall provide an analysis required

5 under this section as part of any submission otherwise re6 quired to be made to the Office of Management and Budg7 et in conjunction with a proposed regulation.

8 (b) GUIDANCE AND REPORTING REQUIREMENTS.—

9 (1) The Attorney General of the United States shall pro10 vide legal guidance in a timely manner, in response to a

11 request by an agency, to assist the agency in complying

12 with this section.

13 (2) No later than 1 year after the date of enactment

14 of this Act and at the end of each 1-year period thereafter,

15 each agency shall submit a report to the Director of the

16 Office of Management and Budget and the Attorney Gen17 eral of the United States identifying each agency action

18 that has resulted in the preparation of a taking impact

19 analysis, the filing of a taking claim, or an award of com20 pensation under the just compensation clause of the fifth

21 amendment of the United States Constitution. The Direc22 tor of the Office of Management and Budget and the At23 torney General of the United States shall publish in the

24 Federal Register, on an annual basis, a compilation of the

25 reports of all agencies submitted under this paragraph.
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1 (c) PUBLIC AVAILABILITY OF ANALYSIS.—An agency

2 shall—

3 (1) make each private property taking impact

4 analysis available to the public; and

5 (2) to the greatest extent practicable, transmit

6 a copy of such analysis to the owner or any other

7 person with a property right or interest in the af8 fected property.

9 (d) PRESUMPTIONS IN PROCEEDINGS.—For the pur10 pose of any agency action or administrative or judicial pro11 ceeding, there shall be a rebuttable presumption that the

12 costs, values, and estimates in any private property

13 takings impact analysis shall be outdated and inaccurate,

14 if—

15 (1) such analysis was completed 5 years or

16 more before the date of such action or proceeding;

17 and

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

19 been modified within the 5-year period preceding the

20 date of such action or proceeding.

21 SEC. 404. RULES OF CONSTRUCTION.

22 Nothing in this title shall be construed to—

23 (1) limit any right or remedy, constitute a con24 dition precedent or a requirement to exhaust admin25 istrative remedies, or bar any claim of any person
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1 relating to such person’s property under any other

2 law, including claims made under this Act, section

3 1346 or 1402 of title 28, United States Code, or

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

5 (2) constitute a conclusive determination of—

6 (A) the value of any property for purposes

7 of an appraisal for the acquisition of property,

8 or for the determination of damages; or

9 (B) any other material issue.

10 SEC. 405. STATUTE OF LIMITATIONS.

11 No action may be filed in a court of the United States

12 to enforce the provisions of this title on or after the date

13 occurring 6 years after the date of the submission of the

14 applicable private property taking impact analysis to the

15 Office of Management and Budget.

16 TITLE V—PRIVATE PROPERTY

17 OWNERS ADMINISTRATIVE

18 BILL OF RIGHTS

19 SEC. 501. FINDINGS AND PURPOSE.

20 (a) FINDINGS.—The Congress finds that—

21 (1) a number of Federal environmental pro22 grams, specifically programs administered under the

23 Endangered Species Act of 1973 (16 U.S.C. 1531 et

24 seq.) and section 404 of the Federal Water Pollution

25 Control Act (33 U.S.C. 1344), have been imple-
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1 mented by employees, agents, and representatives of

2 the Federal Government in a manner that deprives

3 private property owners of the use and control of

4 property;

5 (2) as Federal programs are proposed that

6 would limit and restrict the use of private property

7 to provide habitat for plant and animal species, the

8 rights of private property owners must be recognized

9 and respected;

10 (3) private property owners are being forced by

11 Federal policy to resort to extensive, lengthy, and

12 expensive litigation to protect certain basic civil

13 rights guaranteed by the United States Constitution;

14 (4) many private property owners do not have

15 the financial resources or the extensive commitment

16 of time to proceed in litigation against the Federal

17 Government;

18 (5) a clear Federal policy is needed to guide

19 and direct Federal agencies with respect to the im20 plementation of environmental laws that directly im21 pact private property;

22 (6) all private property owners should and are

23 required to comply with current nuisance laws and

24 should not use property in a manner that harms

25 their neighbors;
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1 (7) nuisance laws have traditionally been en2 acted, implemented, and enforced at the State and

3 local level where such laws are best able to protect

4 the rights of all private property owners and local

5 citizens; and

6 (8) traditional pollution control laws are in7 tended to protect the general public’s health and

8 physical welfare, and current habitat protection pro9 grams are intended to protect the welfare of plant

10 and animal species.

11 (b) PURPOSES.—The purposes of this title are to—

12 (1) provide a consistent Federal policy to en13 courage, support, and promote the private ownership

14 of property; and

15 (2) establish an administrative process and

16 remedy to ensure that the constitutional and legal

17 rights of private property owners are protected by

18 the Federal Government and Federal employees,

19 agents, and representatives.

20 SEC. 502. DEFINITIONS.

21 For purposes of this title the term—

22 (1) ‘‘the Acts’’ means the Endangered Species

23 Act of 1973 (16 U.S.C. 1531 et seq.) and section

24 404 of the Federal Water Pollution Control Act (33

25 U.S.C. 1344);
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1 (2) ‘‘agency head’’ means the Secretary or Ad2 ministrator with jurisdiction or authority to take a

3 final agency action under the Endangered Species

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

5 of the Federal Water Pollution Control Act (33

6 U.S.C. 1344);

7 (3) ‘‘non-Federal person’’ means a person other

8 than an officer, employee, agent, department, or in9 strumentality of—

10 (A) the Federal Government; or

11 (B) a foreign government;

12 (4) ‘‘private property owner’’ means a non-Fed13 eral person (other than an officer, employee, agent,

14 department, or instrumentality of a State, munici15 pality, or political subdivision of a State, acting in

16 an official capacity or a State, municipality, or sub17 division of a State) who owns property;

18 (5) ‘‘private property’’ or ‘‘property’’ has the

19 same meaning as such term is defined under section

20 203(5) of this Act; and

21 (6) ‘‘qualified agency action’’ means an agency

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

23 title 5, United States Code) that is taken—
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1 (A) under section 404 of the Federal

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

3 or

4 (B) under the Endangered Species Act of

5 1973 (16 U.S.C. 1531 et seq.).

6 SEC. 503. PROTECTION OF PRIVATE PROPERTY RIGHTS.

7 (a) IN GENERAL.—In implementing and enforcing

8 the Acts, each agency head shall—

9 (1) comply with applicable State and tribal gov10 ernment laws, including laws relating to private

11 property rights and privacy; and

12 (2) administer and implement the Acts in a

13 manner that has the least impact on private prop14 erty owners’ constitutional and other legal rights.

15 (b) FINAL DECISIONS.—Each agency head shall de16 velop and implement rules and regulations for ensuring

17 that the constitutional and other legal rights of private

18 property owners are protected when the agency head

19 makes, or participates with other agencies in the making

20 of, any final decision that restricts the use of private prop21 erty in administering and implementing this Act.

22 SEC. 504. PROPERTY OWNER CONSENT FOR ENTRY.

23 (a) IN GENERAL.—An agency head may not enter

24 privately owned property to collect information regarding

25 the property, unless the private property owner has—
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1 (1) consented in writing to that entry;

2 (2) after providing that consent, been provided

3 notice of that entry; and

4 (3) been notified that any raw data collected

5 from the property shall be made available at no cost,

6 if requested by the private property owner.

7 (b) NONAPPLICATION.—(1) Subsection (a) does not

8 prohibit entry onto property for the purpose of obtaining

9 consent or providing notice required under subsection (a).

10 (2) Subsection (a) shall not apply to an entry on

11 property that is—

12 (A) necessary because of an imminent threat to

13 health or safety or other emergency; or

14 (B) necessary for the enforcement of criminal

15 laws.

16 SEC. 505. RIGHT TO REVIEW AND DISPUTE DATA COL17 LECTED FROM PRIVATE PROPERTY.

18 An agency head may not use data that is collected

19 on privately owned property to implement or enforce the

20 Acts, unless—

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

22 property owner—

23 (A) access to the information;

24 (B) a detailed description of the manner in

25 which the information was collected; and
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1 (C) an opportunity to dispute the accuracy

2 of the information; and

3 (2) the agency head has determined that the in4 formation is accurate, if the private property owner

5 disputes the accuracy of the information under para6 graph (1)(C).

7 SEC. 506. RIGHT TO AN ADMINISTRATIVE APPEAL OF WET8 LANDS DECISIONS.

9 Section 404 of the Federal Water Pollution Control

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

11 the following new subsection:

12 ‘‘(u) ADMINISTRATIVE APPEALS.—

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

14 notice and opportunity for public comment, issue

15 rules to establish procedures to allow private prop16 erty owners or their authorized representatives an

17 opportunity for an administrative appeal of the fol18 lowing actions under this section:

19 ‘‘(A) A determination of regulatory juris20 diction over a particular parcel of property.

21 ‘‘(B) The denial of a permit.

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

23 ‘‘(D) The imposition of an administrative

24 penalty.
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1 ‘‘(E) The imposition of an order requiring

2 the private property owner to restore or other3 wise alter the property.

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 property involved in

10 the action.

11 ‘‘(3) An owner of private property may receive

12 compensation, if appropriate, subject to the provi13 sions of section 508 of the Omnibus Property Rights

14 Act of 1996.’’.

15 SEC. 507. RIGHT TO ADMINISTRATIVE APPEAL UNDER THE

16 ENDANGERED SPECIES ACT OF 1973.

17 Section 11 of the Endangered Species Act of 1973

18 (16 U.S.C. 1540) is amended by adding at the end the

19 following new subsection:

20 ‘‘(i) ADMINISTRATIVE APPEALS.—

21 ‘‘(1) The Secretary shall, after notice and op22 portunity for public comment, issue rules to estab23 lish procedures to allow private property owners or

24 their authorized representatives an opportunity for

25 an administrative appeal of the following actions:
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1 ‘‘(A) A determination that a particular

2 parcel of property is critical habitat of a listed

3 species.

4 ‘‘(B) The denial of a permit for an inciden5 tal take.

6 ‘‘(C) The terms and conditions of an inci7 dental take permit.

8 ‘‘(D) The finding of jeopardy in any con9 sultation on an agency action affecting a par10 ticular parcel of property under section 7(a)(2)

11 or any reasonable and prudent alternative re12 sulting from such finding.

13 ‘‘(E) Any incidental ‘take’ statement, and

14 any reasonable and prudent measures included

15 therein, issued in any consultation affecting a

16 particular parcel of property under section

17 7(a)(2).

18 ‘‘(F) The imposition of an administrative

19 penalty.

20 ‘‘(G) The imposition of an order prohibit21 ing or substantially limiting the use of the prop22 erty.

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

24 provide that any administrative appeal of an action

25 described in paragraph (1) shall be heard and de-
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1 cided by an official other than the official who took

2 the action, and shall be conducted at a location

3 which is in the vicinity of the parcel of property in4 volved in the action.

5 ‘‘(3) An owner of private property may receive

6 compensation, if appropriate, subject to the provi7 sions of section 508 of the Omnibus Property Rights

8 Act of 1996.’’.

9 SEC. 508. COMPENSATION FOR TAKING OF PRIVATE PROP10 ERTY.

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

12 a consequence of a final qualified agency action of an

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

14 market value of the affected portion of the property as

15 determined by a qualified appraisal expert, is entitled to

16 receive compensation in accordance with the standards set

17 forth in section 204 of this Act.

18 (b) TIME LIMITATION FOR COMPENSATION RE19 QUEST.—No later than 90 days after receipt of a final

20 decision of an agency head that deprives a private prop21 erty owner of fair market value or viable use of property

22 for which compensation is required under subsection (a),

23 the private property owner may submit in writing a re24 quest to the agency head for compensation in accordance

25 with subsection (c).
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1 (c) OFFER OF AGENCY HEAD.—No later than 180

2 days after the receipt of a request for compensation, the

3 agency head shall provide to the private property owner,

4 where appropriate under the standards of this Act—

5 (1) an offer to purchase the affected property

6 of the private property owner at a fair market value

7 assuming no use restrictions under the Acts; and

8 (2) an offer to compensate the private property

9 owner for the difference between the fair market

10 value of the property without those restrictions and

11 the fair market value of the property with those re12 strictions.

13 (d) PRIVATE PROPERTY OWNER’S RESPONSE.—(1)

14 No later than 60 days after the date of receipt of the agen15 cy head’s offers under subsection (c) (1) and (2) the pri16 vate property owner shall accept one of the offers or reject

17 both offers.

18 (2) If the private property owner rejects both offers,

19 the private property owner may submit the matter for ar20 bitration to an arbitrator appointed by the agency head

21 from a list of arbitrators submitted to the agency head

22 by the American Arbitration Association. The arbitration

23 shall be conducted in accordance with the real estate valu24 ation arbitration rules of that association. For purposes

25 of this section, an arbitration is binding on—
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1 (A) the agency head and a private property

2 owner as to the amount, if any, of compensation

3 owed to the private property owner; and

4 (B) whether the private property owner has

5 been deprived of fair market value or viable use of

6 property for which compensation is required under

7 subsection (a).

8 (e) PAYMENT.—An agency head shall pay a private

9 property owner any compensation required under the

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

11 the private property owner in accordance with subsection

12 (d), or under a decision of an arbitrator under that sub13 section, out of currently available appropriations support14 ing the activities giving rise to the claim for compensation.

15 The agency head shall pay to the extent of available funds

16 any compensation under this section no later than 60 days

17 after the date of the acceptance or the date of the issuance

18 of the decision, respectively. If insufficient funds are avail19 able to the agency in the fiscal year in which the award

20 becomes final, the agency shall either pay the award from

21 appropriations available in the next fiscal year or promptly

22 seek additional appropriations for such purpose.

23 (f) TYPE OF PAYMENT.—At the election of the prop24 erty owner, payment under this section shall be provided

25 for in accordance with the standard set forth in section
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1 204(d)(2) or in the amount equal to the fair market value

2 of the property before the date of the final qualified agen3 cy action with respect to which the property or interest

4 is acquired.

5 SEC. 509. PRIVATE PROPERTY OWNER PARTICIPATION IN

6 COOPERATIVE AGREEMENTS.

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

8 U.S.C. 1535) is amended by adding at the end the follow9 ing new subsection:

10 ‘‘(j) Notwithstanding any other provision of this sec11 tion, when the Secretary enters into a management agree12 ment under subsection (b) with any non-Federal person

13 that establishes restrictions on the use of property, the

14 Secretary shall notify all private property owners or les15 sees of the property that is subject to the management

16 agreement and shall provide an opportunity for each pri17 vate property owner or lessee to participate in the manage18 ment agreement.’’.

19 SEC. 510. ELECTION OF REMEDIES.

20 Nothing in this title shall be construed to—

21 (1) deny any person the right, as a condition

22 precedent or as a requirement to exhaust adminis23 trative remedies, to proceed under title II or III of

24 this Act;
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1 (2) bar any claim of any person relating to such

2 person’s property under any other law, including

3 claims made under section 1346 or 1402 of title 28,

4 United States Code, or chapter 91 of title 28, Unit5 ed States Code; or

6 (3) constitute a conclusive determination of—

7 (A) the value of property for purposes of

8 an appraisal for the acquisition of property, or

9 for the determination of damages; or

10 (B) any other material issue.

11 TITLE VI—MISCELLANEOUS

12 SEC. 601. SEVERABILITY.

13 If any provision of this Act, an amendment made by

14 this Act, or the application of such provision or amend15 ment to any person or circumstance is held to be unconsti16 tutional, the remainder of this Act, the amendments made

17 by this Act, and the application of the provisions of such

18 to any person or circumstance shall not be affected there19 by.

20 SEC. 602. RULE OF CONSTRUCTION RELATING TO CIVIL

21 RIGHTS LAWS.

22 This Act shall not be construed to apply to any Fed23 eral law that prohibits discrimination on the basis of race,

24 color, religion, sex, national origin, age, or disability.
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1 SEC. 603. EFFECTIVE DATE.

2 Except as otherwise provided in this Act, the provi3 sions of this Act shall take effect on the date of enactment

4 and shall apply to any agency action of the United States

5 Government after such date.