II

104TH CONGRESS

1ST SESSION S. 239

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

owners, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JANUARY 18 (legislative day, JANUARY 10), 1995

Mr. SHELBY (for himself, Mr. NICKLES, Mr. BURNS, Mrs. HUTCHISON, Mr.

LOTT, Mr. PACKWOOD, Mr. PRESSLER, Mr. INHOFE, Mr. THOMAS, and

Mr. BROWN) introduced the following bill; which was read twice and referred to the Committee on Governmental Affairs

A BILL

To require certain Federal agencies to protect the right of

private property owners, and for other purposes.

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 Own5 ers Bill of Rights’’.

6 SEC. 2. FINDINGS AND PURPOSE.

7 (a) FINDINGS.—Congress finds the following:

8 (1) Our democracy was founded on principles of

9 ownership, use, and control of private property.
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1 These principles are embodied in the fifth amend2 ment to the Constitution, which prohibits the taking

3 of private property without the payment of just com4 pensation.

5 (2) A number of Federal environmental pro6 grams, specifically the Endangered Species Act of

7 1973 (16 U.S.C. 1531 et seq.) and section 404 of

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

9 1344), have been implemented by employees, agents,

10 and representatives of the Federal Government in a

11 manner that deprives private property owners of the

12 use and control of their property.

13 (3) As new Federal programs are proposed that

14 would limit and restrict the use of private property

15 to provide habitat for plant and animal species, the

16 rights of private property owners must be recognized

17 and respected.

18 (4) Private property owners are being forced by

19 Federal policy to resort to extensive, lengthy, and

20 expensive litigation to protect certain basic civil

21 rights guaranteed by the Constitution.

22 (5) Since many private property owners do not

23 have the financial resources or the extensive commit24 ment of time to proceed in litigation against the

25 Federal Government, a clear Federal policy is need-
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1 ed to guide and direct Federal agencies with respect

2 to the implementation by the agencies of environ3 mental laws that directly impact private property.

4 (6) While all private property owners should

5 and must abide by nuisance laws and should not use

6 their property in a manner that harms their neigh7 bors, these laws have traditionally been enacted, im8 plemented, and enforced at the State and local levels

9 where the laws are best able to protect the rights of

10 all private property owners and local citizens.

11 (7) While traditional pollution control laws are

12 intended to protect the health and physical welfare

13 of the general public, habitat protection programs in

14 effect on the date of enactment of this Act are in15 tended to protect the welfare of plant and animal

16 species, while allowing recreational and aesthetic op17 portunities for the public.

18 (b) PURPOSE.—The purpose of this Act is to provide

19 a consistent Federal policy to—

20 (1) encourage, support, and promote the private

21 ownership of property; and

22 (2) ensure that the constitutional and legal

23 rights of private property owners are protected by

24 the Federal Government and employees, agents, and

25 representatives of the Federal Government.
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1 SEC. 3. DEFINITIONS.

2 In this Act:

3 (1) AGENCY HEAD.—The term ‘‘agency head’’

4 means the Secretary or Administrator with jurisdic5 tion or authority to take a final agency action under

6 1 or more of the applicable provisions of law.

7 (2) APPLICABLE PROVISIONS OF LAW.—The

8 term ‘‘applicable provisions of law’’ means the En9 dangered Species Act of 1973 (16 U.S.C. 1531 et

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

11 Control Act (33 U.S.C. 1344).

12 (3) NON-FEDERAL PERSON.—The term ‘‘non13 Federal person’’ means a person other than an offi14 cer, employee, agent, department, or instrumentality

15 of—

16 (A) the Federal Government; or

17 (B) a foreign government.

18 (4) PRIVATE PROPERTY OWNER.—The term

19 ‘‘private property owner’’ means a non-Federal per20 son (other than an officer, employee, agent, depart21 ment, or instrumentality of a State, municipality, or

22 political subdivision of a State, or a State, munici23 pality, or political subdivision of a State) that—

24 (A) owns property referred to in subpara25 graph (A) or (B) of paragraph (5); or
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1 (B) holds property referred to in para2 graph (5)(C).

3 (5) PROPERTY.—The term ‘‘property’’ means—

4 (A) land;

5 (B) any interest in land; and

6 (C) any proprietary water right.

7 (6) QUALIFIED AGENCY ACTION.—The term

8 ‘‘qualified agency action’’ means an agency action

9 (as defined in section 551(13) of title 5, United

10 States Code) that is taken under 1 or more of the

11 applicable provisions of law.

12 SEC. 4. PROTECTION OF PRIVATE PROPERTY RIGHTS.

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

14 the applicable provisions of law, each agency head shall—

15 (1) comply with applicable State and tribal gov16 ernment laws, including laws relating to private

17 property rights and privacy; and

18 (2) implement and enforce the applicable provi19 sions of law in a manner that has the least impact

20 on the constitutional and other legal rights of pri21 vate property owners.

22 (b) REGULATIONS.—Each agency head shall develop

23 and implement regulations for ensuring that the constitu24 tional and other legal rights of private property owners

25 are protected in any case in which the agency head makes,
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1 or participates with other agencies in the making of, any

2 final decision that restricts the use of private property.

3 SEC. 5. PROPERTY OWNER CONSENT FOR ENTRY.

4 (a) IN GENERAL.—Subject to subsection (b), an

5 agency head may not enter privately owned property to

6 collect information regarding the property, unless the pri7 vate property owner has—

8 (1) consented in writing to the entry;

9 (2) after providing the consent, been provided

10 notice of the entry; and

11 (3) been notified that any raw data collected

12 from the property must be made available to the pri13 vate property owner at no cost, if requested by the

14 private property owner.

15 (b) ENTRY FOR CONSENT OR NOTICE.—Subsection

16 (a) shall not prohibit entry onto property for the purpose

17 of obtaining consent or providing notice required under

18 subsection (a).

19 SEC. 6. RIGHT TO REVIEW AND DISPUTE DATA COLLECTED

20 FROM PRIVATE PROPERTY.

21 An agency head may not use data that is collected

22 from privately owned property to implement or enforce

23 any of the applicable provisions of law, unless the agency

24 head has—

25 (1) provided to the private property owner—
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1 (A) access to the information;

2 (B) a detailed description of the manner in

3 which the information was collected; and

4 (C) an opportunity to dispute the accuracy

5 of the information; and

6 (2) determined that the information is accurate,

7 if the private property owner disputes the accuracy

8 of the information pursuant to paragraph (1)(C).

9 SEC. 7. RIGHT TO AN ADMINISTRATIVE APPEAL OF WET10 LANDS DECISIONS.

11 Section 404 of the Federal Water Pollution Control

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

13 the following:

14 ‘‘(u) ADMINISTRATIVE APPEALS.—

15 ‘‘(1) IN GENERAL.—The Secretary or the Ad16 ministrator, after notice and opportunity for public

17 comment, shall issue rules to establish procedures to

18 provide private property owners, or authorized rep19 resentatives of the owners, an opportunity for an ad20 ministrative appeal of the following actions under

21 this section:

22 ‘‘(A) A determination of regulatory juris23 diction over a particular parcel of property.

24 ‘‘(B) The denial of a permit.

25 ‘‘(C) The terms and conditions of a permit.
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1 ‘‘(D) The imposition of an administrative

2 penalty.

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

4 the private property owner to restore or other5 wise alter the property.

6 ‘‘(2) DECISION.—The rules issued under para7 graph (1) shall provide that any administrative ap8 peal of an action described in paragraph (1) shall be

9 heard and decided by an official other than the offi10 cial who took the action, and shall be conducted at

11 a location that is in the vicinity of the property in12 volved in the action.

13 ‘‘(3) DEFINITIONS.—In this subsection:

14 ‘‘(A) NON-FEDERAL PERSON.—The term

15 ‘non-Federal person’ means a person other than

16 an officer, employee, agent, department, or in17 strumentality of—

18 ‘‘(i) the Federal Government; or

19 ‘‘(ii) a foreign government.

20 ‘‘(B) PRIVATE PROPERTY OWNER.—The

21 term ‘private property owner’ means a non-Fed22 eral person (other than an officer, employee,

23 agent, department, or instrumentality of a

24 State, municipality, or political subdivision of a
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1 State, or a State, municipality, or political sub2 division of a State) that—

3 ‘‘(i) owns property referred to in

4 clause (i) or (ii) of subparagraph (C); or

5 ‘‘(ii) holds property referred to in sub6 paragraph (C)(iii).

7 ‘‘(C) PROPERTY.—The term ‘property’

8 means—

9 ‘‘(i) land;

10 ‘‘(ii) any interest in land; and

11 ‘‘(iii) any proprietary water right.’’.

12 SEC. 8. RIGHT TO ADMINISTRATIVE APPEAL UNDER THE

13 ENDANGERED SPECIES ACT OF 1973.

14 Section 11 of the Endangered Species Act of 1973

15 (16 U.S.C. 1540) is amended by adding at the end the

16 following:

17 ‘‘(i) ADMINISTRATIVE APPEALS.—

18 ‘‘(1) IN GENERAL.—The Secretary, after notice

19 and opportunity for public comment, shall issue

20 rules to establish procedures to provide private prop21 erty owners, or authorized representatives of the

22 owners, an opportunity for an administrative appeal

23 of the following actions under this Act:
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1 ‘‘(A) A determination that a particular

2 parcel of property is critical habitat of a species

3 listed under section 4.

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

6 ‘‘(C) The terms and conditions of a permit

7 for an incidental take.

8 ‘‘(D) The imposition of an administrative

9 penalty.

10 ‘‘(E) The imposition of an order prohibit11 ing or substantially limiting the use of the prop12 erty.

13 ‘‘(2) DECISION.—The rules issued under para14 graph (1) shall provide that any administrative ap15 peal of an action described in paragraph (1) shall be

16 heard and decided by an official other than the offi17 cial who took the action, and shall be conducted at

18 a location that is in the vicinity of the parcel of

19 property involved in the action.

20 ‘‘(3) DEFINITIONS.—In this subsection:

21 ‘‘(A) NON-FEDERAL PERSON.—The term

22 ‘non-Federal person’ means a person other than

23 an officer, employee, agent, department, or in24 strumentality of—

25 ‘‘(i) the Federal Government; or
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1 ‘‘(ii) a foreign government.

2 ‘‘(B) PRIVATE PROPERTY OWNER.—The

3 term ‘private property owner’ means a non-Fed4 eral person (other than an officer, employee,

5 agent, department, or instrumentality of a

6 State, municipality, or political subdivision of a

7 State, or a State, municipality, or political sub8 division of a State) that—

9 ‘‘(i) owns property referred to in

10 clause (i) or (ii) of subparagraph (C); or

11 ‘‘(ii) holds property referred to in sub12 paragraph (C)(iii).

13 ‘‘(C) PROPERTY.—The term ‘property’

14 means—

15 ‘‘(i) land;

16 ‘‘(ii) any interest in land; and

17 ‘‘(iii) any proprietary water right.’’.

18 SEC. 9. COMPENSATION FOR TAKING OF PRIVATE PROP19 ERTY.

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

21 a consequence of a final qualified agency action of an

22 agency head, is deprived of $10,000, or 20 percent or

23 more, of the fair market value of the affected portion of

24 the property of the owner, as determined by a qualified
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1 appraisal expert, shall be entitled to receive compensation

2 in accordance with this section.

3 (b) DEADLINE.—Not later than 90 days after receipt

4 of a final decision of an agency head that deprives a pri5 vate property owner of the fair market value or viable use

6 of property for which compensation is required under sub7 section (a), the private property owner may submit in writ8 ing a request to the agency head for compensation in ac9 cordance with subsection (c).

10 (c) AGENCY HEAD’S OFFER.—Not later than 180

11 days after the receipt of a request for compensation under

12 subsection (b), the agency head shall stay the decision and

13 provide to the private property owner—

14 (1) an offer to purchase the affected property

15 of the private property owner at the fair market

16 value that would apply if there were no use restric17 tions under the applicable provisions of law; and

18 (2) an offer to compensate the private property

19 owner for the difference between the fair market

20 value of the property without the restrictions and

21 the fair market value of the property with the re22 strictions.

23 (d) PRIVATE PROPERTY OWNER’S RESPONSE.—

24 (1) IN GENERAL.—A private property owner

25 shall have 60 days after the date of receipt of the
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1 offers of the agency head under subsection (c) to ac2 cept 1 of the offers or to reject both offers.

3 (2) SUBMISSION TO ARBITRATION.—If the pri4 vate property owner rejects both offers, the private

5 property owner may submit the matter for arbitra6 tion to an arbitrator appointed by the agency head

7 from a list of arbitrators submitted to the agency

8 head by the American Arbitration Association. The

9 arbitration shall be conducted in accordance with the

10 real estate valuation arbitration rules of the associa11 tion. For the purposes of this section, an arbitration

12 shall be binding on the agency head and a private

13 property owner as to the amount, if any, of com14 pensation owed to the private property owner and

15 whether for the purposes of this section the private

16 property owner has been deprived of the fair market

17 value or viable use of property for which compensa18 tion is required under subsection (a).

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

20 agency head that deprives a private property owner of

21 property as described in subsection (a), shall be deemed,

22 at the option of the private property owner, to be a taking

23 under the Constitution and a judgment against the United

24 States if the private property owner—
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1 (1) accepts an offer of the agency head under

2 subsection (c); or

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

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

5 property owner any compensation required under the

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

7 the private property owner in accordance with subsection

8 (d), or under a decision of an arbitrator under that sub9 section, by not later than 60 days after the date of the

10 acceptance or the date of the issuance of the decision, re11 spectively.

12 (g) FORM OF PAYMENT.—Payment under this sec13 tion shall be in a form agreed to by the agency head and

14 the private property owner and may be in the form of—

15 (1) payment of an amount that is equal to the

16 fair market value of the property on the day before

17 the date of the final qualified agency action with re18 spect to which the property or interest is acquired;

19 (2) payment of an amount that is equal to the

20 reduction in value of the property; or

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

22 real property that has a fair market value equal to

23 the amount referred to in paragraph (1) or (2).

24 (h) OTHER RIGHTS PRESERVED.—This section shall

25 not preempt, alter, or limit the availability of any remedy
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1 for the taking of property or an interest in property that

2 is available under the Constitution or any other law.

3 (i) FINAL JUDGMENTS.—If a private property owner

4 unsuccessfully seeks compensation under this section and

5 thereafter files a claim for compensation under the fifth

6 amendment to the Constitution and is successful in ob7 taining a final judgment ordering compensation from the

8 United States Court of Federal Claims for the claim, the

9 agency head who made the final agency decision that re10 sults in the taking shall reimburse, from funds appro11 priated to the agency for the 2 fiscal years following pay12 ment of the compensation, the Treasury of the United

13 States for amounts appropriated under section 1304 of

14 title 31, United States Code, to pay the judgment against

15 the United States.

16 SEC. 10. PRIVATE PROPERTY OWNER PARTICIPATION IN

17 COOPERATIVE AGREEMENTS.

18 Section 6(b) of the Endangered Species Act of 1973

19 (16 U.S.C. 1535(b)) is amended—

20 (1) by striking ‘‘The Secretary’’ and inserting

21 the following:

22 ‘‘(1) IN GENERAL.—The Secretary’’; and

23 (2) by adding at the end the following:

24 ‘‘(2) PARTICIPATION BY PRIVATE PROPERTY

25 OWNERS.—
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1 ‘‘(A) IN GENERAL.—Notwithstanding any

2 other provision of this section, in any case in

3 which the Secretary enters into a management

4 agreement under paragraph (1) that establishes

5 restrictions on the use of property, the Sec6 retary shall notify all private property owners

7 or lessees of the property that is subject to the

8 management agreement and shall provide an

9 opportunity for each private property owner or

10 lessee to participate in the management agree11 ment.

12 ‘‘(B) DEFINITIONS.—In this paragraph:

13 ‘‘(i) NON-FEDERAL PERSON.—The

14 term ‘non-Federal person’ means a person

15 other than an officer, employee, agent, de16 partment, or instrumentality of—

17 ‘‘(I) the Federal Government; or

18 ‘‘(II) a foreign government.

19 ‘‘(ii) PRIVATE PROPERTY OWNER.—

20 The term ‘private property owner’ means a

21 non-Federal person (other than an officer,

22 employee, agent, department, or instru23 mentality of a State, municipality, or polit24 ical subdivision of a State, or a State, mu-
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1 nicipality, or political subdivision of a

2 State) that—

3 ‘‘(I) owns property referred to in

4 subclause (I) or (II) of clause (iii); or

5 ‘‘(II) holds property referred to

6 in clause (iii)(III).

7 ‘‘(iii) PROPERTY.—The term ‘prop8 erty’ means—

9 ‘‘(I) land;

10 ‘‘(II) any interest in land; and

11 ‘‘(III) any proprietary water

12 right.’’.

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