II

104TH CONGRESS

1ST SESSION S. 22

To require Federal agencies to prepare private property taking impact

analyses.

IN THE SENATE OF THE UNITED STATES

JANUARY 4, 1995

Mr. DOLE (for himself, Mr. HEFLIN, Mr. BROWN, Mr. BURNS, Mr. HATCH,

Mr. NICKLES, Mr. CRAIG, and Mrs. KASSEBAUM) introduced the following bill; which was read twice and referred to the Committee on Governmental Affairs

A BILL

To require Federal agencies to prepare private property

taking impact analyses.

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

3 SECTION 1. PRIVATE PROPERTY RIGHTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Private Property Rights Act of 1995’’.

6 (b) FINDINGS.—The Congress finds that—

7 (1) the protection of private property from a

8 taking by the Government without just compensation

9 is an integral protection for private citizens incor-
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1 porated into the United States Constitution by the

2 fifth amendment and made applicable to the States

3 by the fourteenth amendment; and

4 (2) Federal agencies should take into consider5 ation the impact of governmental actions on the use

6 and ownership of private property.

7 (c) PURPOSE.—The Congress, recognizing the impor8 tant role that the use and ownership of private property

9 plays in ensuring the economic and social well-being of the

10 Nation, declares that the Federal Government should pro11 tect the health, safety, and welfare of the public and, in

12 doing so, to the extent practicable, avoid takings of private

13 property.

14 (d) DEFINITIONS.—For purposes of this section—

15 (1) the term ‘‘agency’’ means a department,

16 agency, independent agency, or instrumentality of

17 the United States, including any military depart18 ment, Government corporation, Government-con19 trolled corporation, or other establishment in the ex20 ecutive branch of the United States Government;

21 and

22 (2) the term ‘‘taking of private property’’

23 means any action whereby private property is taken

24 in such a way as to require compensation under the

25 fifth amendment to the United States Constitution.
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1 (e) PRIVATE PROPERTY TAKING IMPACT ANALY2 SIS.—

3 (1) IN GENERAL.—The Congress authorizes

4 and directs that, to the fullest extent possible—

5 (A) the policies, regulations, and public

6 laws of the United States shall be interpreted

7 and administered in accordance with the poli8 cies under this title; and

9 (B) subject to paragraph (2), all agencies

10 of the Federal Government shall complete a pri11 vate property taking impact analysis before is12 suing or promulgating any policy, regulation,

13 proposed legislation, or related agency action

14 which is likely to result in a taking of private

15 property.

16 (2) NONAPPLICATION.—The provisions of para17 graph (1)(B) shall not apply to—

18 (A) an action in which the power of emi19 nent domain is formally exercised;

20 (B) an action taken—

21 (i) with respect to property held in

22 trust by the United States; or

23 (ii) in preparation for, or in connec24 tion with, treaty negotiations with foreign

25 nations;
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1 (C) a law enforcement action, including

2 seizure, for a violation of law, of property for

3 forfeiture or as evidence in a criminal proceed4 ing;

5 (D) a communication between an agency

6 and a State or local land-use planning agency

7 concerning a planned or proposed State or local

8 activity that regulates private property, regard9 less of whether the communication is initiated

10 by an agency or is undertaken in response to an

11 invitation by the State or local authority;

12 (E) the placement of a military facility or

13 a military activity involving the use of solely

14 Federal property;

15 (F) any military or foreign affairs function

16 (including a procurement function under a mili17 tary or foreign affairs function), but not includ18 ing the civil works program of the Army Corps

19 of Engineers; and

20 (G) any case in which there is an imme21 diate threat to health or safety that constitutes

22 an emergency requiring immediate response or

23 the issuance of a regulation under section

24 553(b)(B) of title 5, United States Code, if the

25 taking impact analysis is completed after the
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1 emergency action is carried out or the regula2 tion is published.

3 (3) CONTENT OF ANALYSIS.—A private prop4 erty taking impact analysis shall be a written state5 ment that includes—

6 (A) the specific purpose of the policy, regu7 lation, proposal, recommendation, or related

8 agency action;

9 (B) an assessment of the likelihood that a

10 taking of private property will occur under such

11 policy, regulation, proposal, recommendation, or

12 related agency action;

13 (C) an evaluation of whether such policy,

14 regulation, proposal, recommendation, or relat15 ed agency action is likely to require compensa16 tion to private property owners;

17 (D) alternatives to the policy, regulation,

18 proposal, recommendation, or related agency ac19 tion that would achieve the intended purposes

20 of the agency action and lessen the likelihood

21 that a taking of private property will occur; and

22 (E) an estimate of the potential liability of

23 the Federal Government if the Government is

24 required to compensate a private property

25 owner.
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1 (4) SUBMISSION TO OMB.—Each agency shall

2 provide the analysis required by this section as part

3 of any submission otherwise required to be made to

4 the Office of Management and Budget in conjunc5 tion with the proposed regulation.

6 (5) PUBLIC AVAILABILITY OF ANALYSIS.—An

7 agency shall—

8 (A) make each private property taking im9 pact analysis available to the public; and

10 (B) to the greatest extent practicable,

11 transmit a copy of such analysis to the owner

12 or any other person with a property right or in13 terest in the affected property.

14 (f) GUIDANCE AND REPORTING REQUIREMENTS.—

15 (1) GUIDANCE.—The Attorney General shall

16 provide legal guidance in a timely manner, in re17 sponse to a request by an agency, to assist the agen18 cy in complying with this section.

19 (2) REPORTING.—Not later than 1 year after

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

21 each 1-year period thereafter, each agency shall pro22 vide a report to the Director of the Office of Man23 agement and Budget and the Attorney General iden24 tifying each agency action that has resulted in the

25 preparation of a taking impact analysis, the filing of
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1 a taking claim, or an award of compensation pursu2 ant to the Just Compensation Clause of the Fifth

3 Amendment to the Constitution. The Director of the

4 Office of Management and Budget and the Attorney

5 General shall publish in the Federal Register, on an

6 annual basis, a compilation of the reports of all

7 agencies made pursuant to this paragraph.

8 (g) PRESUMPTIONS IN PROCEEDINGS.—For the pur9 pose of any agency action or administrative or judicial pro10 ceeding, there shall be a rebuttable presumption that the

11 costs, values, and estimates in any private property

12 takings impact analysis shall be outdated and inaccurate,

13 if—

14 (1) such analysis was completed 5 years or

15 more before the date of such action or proceeding;

16 and

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

18 been modified within the 5-year period preceding the

19 date of such action or proceeding.

20 (h) RULES OF CONSTRUCTION.—Nothing in this Act

21 shall be construed to—

22 (1) limit any right or remedy, constitute a con23 dition precedent or a requirement to exhaust admin24 istrative remedies, or bar any claim of any person

25 relating to such person’s property under any other
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1 law, including claims made under this Act, section

2 1346 or 1402 of title 28, United States Code, or

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

4 (2) constitute a conclusive determination of—

5 (A) the value of any property for purposes

6 of an appraisal for the acquisition of property,

7 or for the determination of damages; or

8 (B) any other material issue.

9 (i) EFFECTIVE DATE.—The provisions of this Act

10 shall take effect 120 days after the date of the enactment

11 of this Act.

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