II

104TH CONGRESS

1ST SESSION S. 605

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

MARCH 23, 1995

Mr. DOLE (for himself, Mr. HATCH, Mr. HEFLIN, Mr. LOTT, Mr. GRAMM, Mr.

BROWN, Mr. CRAIG, Mr. SHELBY, Mr. NICKLES, Mr. KYL, Mr. ABRAHAM, Mr. THURMOND, Mr. INHOFE, Mr. PACKWOOD, Mr. WARNER, Mr.

COATS, Mr. BURNS, Mr. THOMAS, Mr. PRESSLER, Mrs. HUTCHISON, Mr.

HATFIELD, Mr. GRAMS, Mr. FRIST, Mr. MCCONNELL, Mr. ASHCROFT,

Mr. MACK, Mr. MURKOWSKI, Mr. BENNETT, Mr. KEMPTHORNE, Mr.

GRASSLEY, Mr. BOND, and Mr. STEVENS) introduced the following bill;

which was read twice and referred to the Committee on the Judiciary

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,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Omnibus Property

5 Rights Act of 1995’’.
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1 TITLE I—FINDINGS AND PURPOSES

2 SEC. 101. FINDINGS.

3 The Congress finds that—

4 (1) the private ownership of property is essen5 tial to a free society and is an integral part of the

6 American tradition of liberty and limited govern7 ment;

8 (2) the framers of the United States Constitu9 tion, in order to protect private property and liberty,

10 devised a framework of Government designed to dif11 fuse power and limit Government;

12 (3) to further ensure the protection of private

13 property, the fifth amendment to the United States

14 Constitution was ratified to prevent the taking of

15 private property by the Federal Government, except

16 for public use and with just compensation;

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

18 fifth amendment of the United States Constitution,

19 as the Supreme Court stated in Armstrong v. United

20 States, 364 U.S. 40, 49 (1960), is ‘‘to bar Govern21 ment from forcing some people alone to bear public

22 burdens, which in all fairness and justice, should be

23 borne by the public as a whole’’;

24 (5) the Federal Government has singled out

25 property holders to shoulder the cost that should be
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1 borne by the public, in violation of the just com2 pensation requirement of the takings clause of the

3 fifth amendment of the United States Constitution;

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

5 Government in its overzealous regulation of the pri6 vate sector and to protect private property, which is

7 a fundamental right of the American people; and

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

9 courts now are required to employ in the absence of

10 adequate statutory language to vindicate property

11 rights under the fifth amendment of the United

12 States Constitution has been ineffective and costly

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

14 and provide an effective remedy.

15 SEC. 102. PURPOSE.

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

17 promote the private ownership of property by ensuring the

18 constitutional and legal protection of private property by

19 the United States Government by—

20 (1) the establishment of a new Federal judicial

21 claim in which to vindicate and protect property

22 rights;

23 (2) the simplification and clarification of court

24 jurisdiction over property right claims;
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1 (3) the establishment of an administrative pro2 cedure that requires the Federal Government to as3 sess the impact of government action on holders of

4 private property;

5 (4) the minimization, to the greatest extent pos6 sible, of the taking of private property by the Fed7 eral Government and to ensure that just compensa8 tion is paid by the Government for any taking; and

9 (5) the establishment of administrative com10 pensation procedures involving the enforcement of

11 the Endangered Species Act of 1973 and section

12 404 of the Federal Water Pollution Control Act.

13 TITLE II—PROPERTY RIGHTS LITIGATION

14 RELIEF

15 SEC. 201. FINDINGS.

16 The Congress finds that—

17 (1) property rights have been abrogated by the

18 application of laws, regulations, and other actions by

19 the Federal Government that adversely affect the

20 value of private property;

21 (2) certain provisions of sections 1346 and

22 1402 and chapter 91 of title 28, United States Code

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

24 the jurisdiction of courts hearing property rights

25 claims, complicates the ability of a property owner to
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1 vindicate a property owner’s right to just compensa2 tion for a governmental action that has caused a

3 physical or regulatory taking;

4 (3) current law—

5 (A) forces a property owner to elect be6 tween equitable relief in the district court and

7 monetary relief (the value of the property

8 taken) in the United States Court of Federal

9 Claims;

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

11 court on the ground that the plaintiff should

12 seek just compensation in the Court of Federal

13 Claims; and

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

15 of Federal Claims on the ground that plaintiff

16 should seek equitable relief in district court;

17 (4) property owners cannot fully vindicate prop18 erty rights in one court;

19 (5) property owners should be able to fully re20 cover for a taking of their private property in one

21 court;

22 (6) certain provisions of section 1346 and 1402

23 and chapter 91 of title 28, United States Code (com24 monly known as the Tucker Act) should be amend25 ed, giving both the district courts of the United
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1 States and the Court of Federal Claims jurisdiction

2 to hear all claims relating to property rights; and

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

4 Code, which denies the Court of Federal Claims ju5 risdiction to entertain a suit which is pending in an6 other court and made by the same plaintiff, should

7 be repealed.

8 SEC. 202. PURPOSES.

9 The purposes of this title are to—

10 (1) establish a clear, uniform, and efficient ju11 dicial process whereby aggrieved property owners

12 can obtain vindication of property rights guaranteed

13 by the fifth amendment to the United States Con14 stitution and this Act;

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

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

17 (3) rectify the constitutional imbalance between

18 the Federal Government and the States; and

19 (4) require the Federal Government to com20 pensate property owners for the deprivation of prop21 erty rights that result from State agencies’ enforce22 ment of federally mandated programs.

23 SEC. 203. DEFINITIONS.

24 For purposes of this title the term—
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1 (1) ‘‘agency’’ means a department, agency,

2 independent agency, or instrumentality of the United

3 States, including any military department, Govern4 ment corporation, Government-controlled corpora5 tion, or other establishment in the executive branch

6 of the United States Government;

7 (2) ‘‘agency action’’ means any action or deci8 sion taken by an agency that—

9 (A) takes a property right; or

10 (B) unreasonably impedes the use of prop11 erty or the exercise of property interests;

12 (3) ‘‘just compensation’’—

13 (A) means compensation equal to the full

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

15 fair market value of the private property taken

16 and business losses arising from a taking,

17 whether the taking is by physical occupation or

18 through regulation, exaction, or other means;

19 and

20 (B) shall include compounded interest cal21 culated from the date of the taking until the

22 date the United States tenders payment;

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

24 property or rights in property at the time the taking

25 occurs, including when—
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1 (A) the statute, regulation, rule, order,

2 guideline, policy, or action is passed or promul3 gated; or

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

5 governmental permission is denied or sus6 pended;

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

8 property protected under the fifth amendment to the

9 Constitution of the United States, any applicable

10 Federal or State law, or this Act, and includes—

11 (A) real property, whether vested or

12 unvested, including—

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

14 for years, or otherwise;

15 (ii) inchoate interests in real property

16 such as remainders and future interests;

17 (iii) personalty that is affixed to or

18 appurtenant to real property;

19 (iv) easements;

20 (v) leaseholds;

21 (vi) recorded liens; and

22 (vii) contracts or other security inter23 ests in, or related to, real property;
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1 (B) the right to use water or the right to

2 receive water, including any recorded lines on

3 such water right;

4 (C) rents, issues, and profits of land, in5 cluding minerals, timber, fodder, crops, oil and

6 gas, coal, or geothermal energy;

7 (D) property rights provided by, or memo8 rialized in, a contract, except that such rights

9 shall not be construed under this title to pre10 vent the United States from prohibiting the for11 mation of contracts deemed to harm the public

12 welfare or to prevent the execution of contracts

13 for—

14 (i) national security reasons; or

15 (ii) exigencies that present immediate

16 or reasonably foreseeable threats or inju17 ries to life or property;

18 (E) any interest defined as property under

19 State law; or

20 (F) any interest understood to be property

21 based on custom, usage, common law, or mutu22 ally reinforcing understandings sufficiently well23 grounded in law to back a claim of interest;
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1 (6) ‘‘State agency’’ means any State depart2 ment, agency, political subdivision, or instrumental3 ity that—

4 (A) carries out or enforces a regulatory

5 program required under Federal law;

6 (B) is delegated administrative or sub7 stantive responsibility under a Federal regu8 latory program; or

9 (C) receives Federal funds in connection

10 with a regulatory program established by a

11 State,

12 if the State enforcement of the regulatory program,

13 or the receipt of Federal funds in connection with a

14 regulatory program established by a State, is di15 rectly related to the taking of private property seek16 ing to be vindicated under this Act; and

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

18 ‘‘take’’—

19 (A) means any action whereby private

20 property is directly taken as to require com21 pensation under the fifth amendment to the

22 United States Constitution or under this Act,

23 including by physical invasion, regulation, exac24 tion, condition, or other means; and

25 (B) shall not include—
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1 (i) a condemnation action filed by the

2 United States in an applicable court; or

3 (ii) an action filed by the United

4 States relating to criminal forfeiture.

5 SEC. 204. COMPENSATION FOR TAKEN PROPERTY.

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

7 take private property except for public use and with just

8 compensation to the property owner. A property owner

9 shall receive just compensation if—

10 (1) as a consequence of an action of any agen11 cy, or State agency, private property (whether all or

12 in part) has been physically invaded or taken for

13 public use without the consent of the owner; and

14 (2)(A) such action does not substantially ad15 vance the stated governmental interest to be

16 achieved by the legislation or regulation on which

17 the action is based;

18 (B) such action exacts the owner’s constitu19 tional or otherwise lawful right to use the property

20 or a portion of such property as a condition for the

21 granting of a permit, license, variance, or any other

22 agency action without a rough proportionality be23 tween the stated need for the required dedication

24 and the impact of the proposed use of the property;
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1 (C) such action results in the property owner

2 being deprived, either temporarily or permanently, of

3 all or substantially all economically beneficial or pro4 ductive use of the property or that part of the prop5 erty affected by the action without a showing that

6 such deprivation inheres in the title itself;

7 (D) such action diminishes the fair market

8 value of the affected portion of the property which

9 is the subject of the action by 33 percent or more

10 with respect to the value immediately prior to the

11 governmental action; or

12 (E) under any other circumstance where a tak13 ing has occurred within the meaning of the fifth

14 amendment of the United States Constitution.

15 (b) NO CLAIM AGAINST STATE OR STATE INSTRU16 MENTALITY.—No action may be filed under this section

17 against a State agency for carrying out the functions de18 scribed under section 203(6).

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

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

21 (A) subsection (a)(2)(A), with regard to show22 ing the nexus between the stated governmental pur23 pose of the governmental interest and the impact on

24 the proposed use of private property;
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1 (B) subsection (a)(2)(B), with regard to show2 ing the proportionality between the exaction and the

3 impact of the proposed use of the property; and

4 (C) subsection (a)(2)(C), with regard to show5 ing that such deprivation of value inheres in the title

6 to the property.

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

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

9 with regard to establishing the diminution of value of

10 property.

11 (d) COMPENSATION AND NUISANCE EXCEPTION TO

12 PAYMENT OF JUST COMPENSATION.—(1) No compensa13 tion shall be required by this Act if the owner’s use or

14 proposed use of the property is a nuisance as commonly

15 understood and defined by background principles of nui16 sance and property law, as understood within the State

17 in which the property is situated, and to bar an award

18 of damages under this Act, the United States shall have

19 the burden of proof to establish that the use or proposed

20 use of the property is a nuisance.

21 (2) Subject to paragraph (1), if an agency action di22 rectly takes property or a portion of property under sub23 section (a), compensation to the owner of the property

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

25 of an amount equal to—
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1 (A) the difference between—

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

3 portion of the property affected by agency ac4 tion before such property became the subject of

5 the specific government regulation; and

6 (ii) the fair market value of the property

7 or portion of the property when such property

8 becomes subject to the agency action; or

9 (B) business losses.

10 (e) TRANSFER OF PROPERTY INTEREST.—The Unit11 ed States shall take title to the property interest for which

12 the United States pays a claim under this Act.

13 (f) SOURCE OF COMPENSATION.—Awards of com14 pensation referred to in this section, whether by judgment,

15 settlement, or administrative action, shall be promptly

16 paid by the agency out of currently available appropria17 tions supporting the activities giving rise to the claims for

18 compensation. If insufficient funds are available to the

19 agency in the fiscal year in which the award becomes final,

20 the agency shall either pay the award from appropriations

21 available in the next fiscal year or promptly seek addi22 tional appropriations for such purpose.

23 SEC. 205. JURISDICTION AND JUDICIAL REVIEW.

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

25 action under this Act to challenge the validity of any agen-
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1 cy action that adversely affects the owner’s interest in pri2 vate property in either the United States District Court

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

4 constitutes express waiver of the sovereign immunity of

5 the United States. Notwithstanding any other provision of

6 law and notwithstanding the issues involved, the relief

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

8 have concurrent jurisdiction over both claims for monetary

9 relief and claims seeking invalidation of any Act of Con10 gress or any regulation of an agency as defined under this

11 Act affecting private property rights. The plaintiff shall

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

13 relief.

14 (b) STANDING.—Persons adversely affected by an

15 agency action taken under this Act shall have standing

16 to challenge and seek judicial review of that action.

17 (c) AMENDMENTS TO TITLE 28, UNITED STATES

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

19 Code, is amended—

20 (A) in paragraph (1) by amending the first sen21 tence to read as follows: ‘‘The United States Court

22 of Federal Claims shall have jurisdiction to render

23 judgment upon any claim against the United States

24 for monetary relief founded either upon the Con25 stitution or any Act of Congress or any regulation
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1 of an executive department, or upon any express or

2 implied contract with the United States, in cases not

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

4 Congress or any regulation of an executive depart5 ment that adversely affects private property rights

6 in violation of the fifth amendment of the United

7 States Constitution’’;

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

9 first sentence the following: ‘‘In any case within its

10 jurisdiction, the Court of Federal Claims shall have

11 the power to grant injunctive and declaratory relief

12 when appropriate.’’; and

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

14 new paragraphs:

15 ‘‘(4) In cases otherwise within its jurisdiction,

16 the Court of Federal Claims shall also have ancillary

17 jurisdiction, concurrent with the courts designated in

18 section 1346(b) of this title, to render judgment

19 upon any related tort claim authorized under section

20 2674 of this title.

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

22 the Court of Federal Claims which constitute judi23 cial review of agency action (rather than de novo

24 proceedings), the provisions of section 706 of title 5

25 shall apply.’’.
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1 (2)(A) Section 1500 of title 28, United States Code,

2 is repealed.

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

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

5 relating to section 1500.

6 SEC. 206. STATUTE OF LIMITATIONS.

7 The statute of limitations for actions brought under

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

9 private property.

10 SEC. 207. ATTORNEYS’ FEES AND COSTS.

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

12 brought under this title, shall award costs of litigation (in13 cluding reasonable attorney and expert witness fees) to

14 any prevailing plaintiff.

15 SEC. 208. RULES OF CONSTRUCTION.

16 Nothing in this title shall be construed to interfere

17 with the authority of any State to create additional prop18 erty rights.

19 SEC. 209. EFFECTIVE DATE.

20 The provisions of this title and amendments made by

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

22 of this Act and shall apply to any agency action that oc23 curs after such date.
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1 TITLE III—ALTERNATIVE DISPUTE

2 RESOLUTION

3 SEC. 301. ALTERNATIVE DISPUTE RESOLUTION.

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

5 taking of private property as defined under this Act or

6 litigation commenced under title II of this Act may elect

7 to resolve the dispute through settlement or arbitration.

8 In the administration of this section—

9 (1) such alternative dispute resolution may only

10 be effectuated by the consent of all parties;

11 (2) arbitration procedures shall be in accord12 ance with the alternative dispute resolution proce13 dures established by the American Arbitration Asso14 ciation; and

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

16 precedent or an administrative procedure to be ex17 hausted before the filing of a civil action under this

18 Act.

19 (b) COMPENSATION AS A RESULT OF ARBITRA20 TION.—The amount of arbitration awards shall be paid

21 from the responsible agency’s currently available appro22 priations supporting the agency’s activities giving rise to

23 the claim for compensation. If insufficient funds are avail24 able to the agency in the fiscal year in which the award

25 becomes final, the agency shall either pay the award from
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1 appropriations available in the next fiscal year or promptly

2 seek additional appropriations for such purpose.

3 (c) REVIEW OF ARBITRATION.—Appeal from arbitra4 tion decisions shall be to the United States District Court

5 or the United States Court of Federal Claims in the man6 ner prescribed by law for the claim under this Act.

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

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

9 compensation shall be promptly paid by the agency from

10 appropriations supporting the activities giving rise to the

11 claim for compensation currently available at the time of

12 final action on the appeal. If insufficient funds are avail13 able to the agency in the fiscal year in which the award

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

15 appropriations available in the next fiscal year or promptly

16 seek additional appropriations for such purpose.

17 TITLE IV—PRIVATE PROPERTY TAKING

18 IMPACT ANALYSIS

19 SEC. 401. FINDINGS AND PURPOSE.

20 The Congress finds that—

21 (1) the Federal Government should protect the

22 health, safety, welfare, and rights of the public; and

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

24 private property by assessing the effect of govern25 ment action on private property rights.
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1 SEC. 402. DEFINITIONS.

2 For purposes of this title the term—

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

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

5 General Accounting Office;

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

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

8 States Code; and

9 (3) ‘‘taking of private property’’ has the same

10 meaning as such term is defined under section 203

11 of this Act.

12 SEC. 403. PRIVATE PROPERTY TAKING IMPACT ANALYSIS.

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

14 directs that, to the fullest extent possible—

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

16 the United States shall be interpreted and adminis17 tered in accordance with the policies under this title;

18 and

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

20 Federal Government shall complete a private prop21 erty taking impact analysis before issuing or promul22 gating any policy, regulation, proposed legislation, or

23 related agency action which is likely to result in a

24 taking of private property.

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

26 apply to—
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1 (A) an action in which the power of eminent do2 main is formally exercised;

3 (B) an action taken—

4 (i) with respect to property held in trust by

5 the United States; or

6 (ii) in preparation for, or in connection

7 with, treaty negotiations with foreign nations;

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

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

10 as evidence in a criminal proceeding;

11 (D) a study or similar effort or planning activ12 ity;

13 (E) a communication between an agency and a

14 State or local land-use planning agency concerning

15 a planned or proposed State or local activity that

16 regulates private property, regardless of whether the

17 communication is initiated by an agency or is under18 taken in response to an invitation by the State or

19 local authority;

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

21 military activity involving the use of solely Federal

22 property;

23 (G) any military or foreign affairs function (in24 cluding a procurement function under a military or
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1 foreign affairs function), but not including the civil

2 works program of the Army Corps of Engineers; and

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

4 threat to health or safety that constitutes an emer5 gency requiring immediate response or the issuance

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

7 United States Code, if the taking impact analysis is

8 completed after the emergency action is carried out

9 or the regulation is published.

10 (3) A private property taking impact analysis shall

11 be a written statement that includes—

12 (A) the specific purpose of the policy, regula13 tion, proposal, recommendation, or related agency

14 action;

15 (B) an assessment of the likelihood that a tak16 ing of private property will occur under such policy,

17 regulation, proposal, recommendation, or related

18 agency action;

19 (C) an evaluation of whether such policy, regu20 lation, proposal, recommendation, or related agency

21 action is likely to require compensation to private

22 property owners;

23 (D) alternatives to the policy, regulation, pro24 posal, recommendation, or related agency action that

25 would achieve the intended purposes of the agency
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1 action and lessen the likelihood that a taking of pri2 vate property will occur; and

3 (E) an estimate of the potential liability of the

4 Federal Government if the Government is required

5 to compensate a private property owner.

6 (4) Each agency shall provide an analysis required

7 under this section as part of any submission otherwise re8 quired to be made to the Office of Management and Budg9 et in conjunction with a proposed regulation.

10 (b) GUIDANCE AND REPORTING REQUIREMENTS.—

11 (1) The Attorney General of the United States

12 shall provide legal guidance in a timely manner, in

13 response to a request by an agency, to assist the

14 agency in complying with this section.

15 (2) No later than 1 year after the date of en16 actment of this Act and at the end of each 1-year

17 period thereafter, each agency shall submit a report

18 to the Director of the Office of Management and

19 Budget and the Attorney General of the United

20 States identifying each agency action that has re21 sulted in the preparation of a taking impact analy22 sis, the filing of a taking claim, or an award of com23 pensation under the just compensation clause of the

24 fifth amendment of the United States Constitution.

25 The Director of the Office of Management and
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1 Budget and the Attorney General of the United

2 States shall publish in the Federal Register, on an

3 annual basis, a compilation of the reports of all

4 agencies submitted under this paragraph.

5 (c) PUBLIC AVAILABILITY OF ANALYSIS.—An agency

6 shall—

7 (1) make each private property taking impact

8 analysis available to the public; and

9 (2) to the greatest extent practicable, transmit

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

11 person with a property right or interest in the af12 fected property.

13 (d) PRESUMPTIONS IN PROCEEDINGS.—For the pur14 pose of any agency action or administrative or judicial pro15 ceeding, there shall be a rebuttable presumption that the

16 costs, values, and estimates in any private property

17 takings impact analysis shall be outdated and inaccurate,

18 if—

19 (1) such analysis was completed 5 years or

20 more before the date of such action or proceeding;

21 and

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

23 been modified within the 5-year period preceding the

24 date of such action or proceeding.
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1 SEC. 404. DECISIONAL CRITERIA AND AGENCY COMPLI2 ANCE.

3 (a) IN GENERAL.—No final rule shall be promulgated

4 if enforcement of the rule could reasonably be construed

5 to require an uncompensated taking of private property

6 as defined by this Act.

7 (b) COMPLIANCE.—In order to meet the purposes of

8 this Act as expressed in section 401 of this title, all agen9 cies shall—

10 (1) review, and where appropriate, re-promul11 gate all regulations that result in takings of private

12 property under this Act, and reduce such takings of

13 private property to the maximum extent possible

14 within existing statutory requirements;

15 (2) prepare and submit their budget requests

16 consistent with the purposes of this Act as expressed

17 in section 401 of this title for fiscal year 1997 and

18 all fiscal years thereafter; and

19 (3) within 120 days of the effective date of this

20 section, submit to the appropriate authorizing and

21 appropriating committees of the Congress a detailed

22 list of statutory changes that are necessary to meet

23 fully the purposes of section 401 of this title, along

24 with a statement prioritizing such amendments and

25 an explanation of the agency’s reasons for such

26 prioritization.
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1 SEC. 405. RULES OF CONSTRUCTION.

2 Nothing in this title shall be construed to—

3 (1) limit any right or remedy, constitute a con4 dition precedent or a requirement to exhaust admin5 istrative remedies, or bar any claim of any person

6 relating to such person’s property under any other

7 law, including claims made under this Act, section

8 1346 or 1402 of title 28, United States Code, or

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

10 (2) constitute a conclusive determination of—

11 (A) the value of any property for purposes

12 of an appraisal for the acquisition of property,

13 or for the determination of damages; or

14 (B) any other material issue.

15 SEC. 406. STATUTE OF LIMITATIONS.

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

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

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

19 applicable private property taking impact analysis to the

20 Office of Management and Budget.

21 TITLE V—PRIVATE PROPERTY OWNERS

22 ADMINISTRATIVE BILL OF RIGHTS

23 SEC. 501. FINDINGS AND PURPOSE.

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

25 (1) a number of Federal environmental pro26 grams, specifically programs administered under the
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1 Endangered Species Act of 1973 (16 U.S.C. 1531 et

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

3 Control Act (33 U.S.C. 1344), have been imple4 mented by employees, agents, and representatives of

5 the Federal Government in a manner that deprives

6 private property owners of the use and control of

7 property;

8 (2) as Federal programs are proposed that

9 would limit and restrict the use of private property

10 to provide habitat for plant and animal species, the

11 rights of private property owners must be recognized

12 and respected;

13 (3) private property owners are being forced by

14 Federal policy to resort to extensive, lengthy, and

15 expensive litigation to protect certain basic civil

16 rights guaranteed by the United States Constitution;

17 (4) many private property owners do not have

18 the financial resources or the extensive commitment

19 of time to proceed in litigation against the Federal

20 Government;

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

22 and direct Federal agencies with respect to the im23 plementation of environmental laws that directly im24 pact private property;
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1 (6) all private property owners should and are

2 required to comply with current nuisance laws and

3 should not use property in a manner that harms

4 their neighbors;

5 (7) nuisance laws have traditionally been en6 acted, implemented, and enforced at the State and

7 local level where such laws are best able to protect

8 the rights of all private property owners and local

9 citizens; and

10 (8) traditional pollution control laws are in11 tended to protect the general public’s health and

12 physical welfare, and current habitat protection pro13 grams are intended to protect the welfare of plant

14 and animal species.

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

16 (1) provide a consistent Federal policy to en17 courage, support, and promote the private ownership

18 of property; and

19 (2) to establish an administrative process and

20 remedy to ensure that the constitutional and legal

21 rights of private property owners are protected by

22 the Federal Government and Federal employees,

23 agents, and representatives.

24 SEC. 502. DEFINITIONS.

25 For purposes of this title the term—
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1 (1) ‘‘the Acts’’ means the Endangered Species

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

3 404 of the Federal Water Pollution Control Act (33

4 U.S.C. 1344);

5 (2) ‘‘agency head’’ means the Secretary or Ad6 ministrator with jurisdiction or authority to take a

7 final agency action under the Endangered Species

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

9 of the Federal Water Pollution Control Act (33

10 U.S.C. 1344);

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

12 than an officer, employee, agent, department, or in13 strumentality of—

14 (A) the Federal Government; or

15 (B) a foreign government;

16 (4) ‘‘private property owner’’ means a non-Fed17 eral person (other than an officer, employee, agent,

18 department, or instrumentality of a State, munici19 pality, or political subdivision of a State, acting in

20 an official capacity or a State, municipality, or sub21 division of a State) that—

22 (A) owns property referred to under para23 graph (5) (A) or (B); or

24 (B) holds property referred to under para25 graph (5)(C);
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1 (5) ‘‘property’’ means—

2 (A) land;

3 (B) any interest in land; and

4 (C) the right to use or the right to receive

5 water; and

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

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

8 title 5, United States Code) that is taken—

9 (A) under section 404 of the Federal

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

11 or

12 (B) under the Endangered Species Act of

13 1973 (16 U.S.C. 1531 et seq.).

14 SEC. 503. PROTECTION OF PRIVATE PROPERTY RIGHTS.

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

16 the Acts, each agency head shall—

17 (1) comply with applicable State and tribal gov18 ernment laws, including laws relating to private

19 property rights and privacy; and

20 (2) administer and implement the Acts in a

21 manner that has the least impact on private prop22 erty owners’ constitutional and other legal rights.

23 (b) FINAL DECISIONS.—Each agency head shall de24 velop and implement rules and regulations for ensuring

25 that the constitutional and other legal rights of private
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1 property owners are protected when the agency head

2 makes, or participates with other agencies in the making

3 of, any final decision that restricts the use of private prop4 erty in administering and implementing this Act.

5 SEC. 504. PROPERTY OWNER CONSENT FOR ENTRY.

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

7 privately owned property to collect information regarding

8 the property, unless the private property owner has—

9 (1) consented in writing to that entry;

10 (2) after providing that consent, been provided

11 notice of that entry; and

12 (3) been notified that any raw data collected

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

14 if requested by the private property owner.

15 (b) NONAPPLICATION.—Subsection (a) does not pro16 hibit entry onto property for the purpose of obtaining con17 sent or providing notice required under subsection (a).

18 SEC. 505. RIGHT TO REVIEW AND DISPUTE DATA COL19 LECTED FROM PRIVATE PROPERTY.

20 An agency head may not use data that is collected

21 on privately owned property to implement or enforce the

22 Acts, unless—

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

24 property owner—

25 (A) access to the information;
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1 (B) a detailed description of the manner in

2 which the information was collected; and

3 (C) an opportunity to dispute the accuracy

4 of the information; and

5 (2) the agency head has determined that the in6 formation is accurate, if the private property owner

7 disputes the accuracy of the information under para8 graph (1)(C).

9 SEC. 506. 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 new subsection:

14 ‘‘(u) ADMINISTRATIVE APPEALS.—

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

16 notice and opportunity for public comment, issue

17 rules to establish procedures to allow private prop18 erty owners or their authorized representatives an

19 opportunity for an administrative appeal of the fol20 lowing actions under this section:

21 ‘‘(A) A determination of regulatory juris22 diction over a particular parcel of property.

23 ‘‘(B) The denial of a permit.

24 ‘‘(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) Rules issued under paragraph (1) shall

7 provide that any administrative appeal of an action

8 described in paragraph (1) shall be heard and de9 cided by an official other than the official who took

10 the action, and shall be conducted at a location

11 which is in the vicinity of the property involved in

12 the action.

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

14 compensation, if appropriate, subject to the provi15 sions of section 508 of the Emergency Property

16 Owners Relief Act of 1995.’’.

17 SEC. 507. RIGHT TO ADMINISTRATIVE APPEAL UNDER THE

18 ENDANGERED SPECIES ACT OF 1973.

19 Section 11 of the Endangered Species Act of 1973

20 (16 U.S.C. 1540) is amended by adding at the end the

21 following new subsection:

22 ‘‘(i) ADMINISTRATIVE APPEALS.—

23 ‘‘(1) The Secretary shall, after notice and op24 portunity for public comment, issue rules to estab25 lish procedures to allow private property owners or
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1 their authorized representatives an opportunity for

2 an administrative appeal of the following actions:

3 ‘‘(A) A determination that a particular

4 parcel of property is critical habitat of a listed

5 species.

6 ‘‘(B) The denial of a permit for an inciden7 tal take.

8 ‘‘(C) The terms and conditions of an inci9 dental take permit.

10 ‘‘(D) The finding of jeopardy in any con11 sultation on an agency action affecting a par12 ticular parcel of property under section 7(a)(2)

13 or any reasonable and prudent alternative re14 sulting from such finding.

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

16 any reasonable and prudent measures included

17 therein, issued in any consultation affecting a

18 particular parcel of property under section

19 7(a)(2).

20 ‘‘(F) The imposition of an administrative

21 penalty.

22 ‘‘(G) The imposition of an order prohibit23 ing or substantially limiting the use of the prop24 erty.
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1 ‘‘(2) Rules issued under paragraph (1) shall

2 provide that any administrative appeal of an action

3 described in paragraph (1) shall be heard and de4 cided by an official other than the official who took

5 the action, and shall be conducted at a location

6 which is in the vicinity of the parcel of property in7 volved in the action.

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

9 compensation, if appropriate, subject to the provi10 sions of section 508 of the Emergency Property

11 Owners Relief Act of 1995.’’.

12 SEC. 508. COMPENSATION FOR TAKING OF PRIVATE PROP13 ERTY.

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

15 a consequence of a final qualified agency action of an

16 agency head, is deprived of 33 percent or more of the fair

17 market value, or the economically viable use, of the af18 fected portion of the property as determined by a qualified

19 appraisal expert, is entitled to receive compensation in ac20 cordance with the standards set forth in section 204 of

21 this Act.

22 (b) TIME LIMITATION FOR COMPENSATION RE23 QUEST.—No later than 90 days after receipt of a final

24 decision of an agency head that deprives a private prop25 erty owner of fair market value or viable use of property
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1 for which compensation is required under subsection (a),

2 the private property owner may submit in writing a re3 quest to the agency head for compensation in accordance

4 with subsection (c).

5 (c) OFFER OF AGENCY HEAD.—No later than 180

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

7 agency head shall stay the decision and shall provide to

8 the private property owner—

9 (1) an offer to purchase the affected property

10 of the private property owner at a fair market value

11 assuming no use restrictions under the Acts; and

12 (2) an offer to compensate the private property

13 owner for the difference between the fair market

14 value of the property without those restrictions and

15 the fair market value of the property with those re16 strictions.

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

18 No later than 60 days after the date of receipt of the agen19 cy head’s offers under subsection (c) (1) and (2) the pri20 vate property owner shall accept one of the offers or reject

21 both offers.

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

23 the private property owner may submit the matter for ar24 bitration to an arbitrator appointed by the agency head

25 from a list of arbitrators submitted to the agency head
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1 by the American Arbitration Association. The arbitration

2 shall be conducted in accordance with the real estate valu3 ation arbitration rules of that association. For purposes

4 of this section, an arbitration is binding on—

5 (A) the agency head and a private property

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

7 owed to the private property owner; and

8 (B) whether the private property owner has

9 been deprived of fair market value or viable use of

10 property for which compensation is required under

11 subsection (a).

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

13 agency head that deprives a private property owner of

14 property as described under subsection (a), is deemed, at

15 the option of the private property owner, to be a taking

16 under the United States Constitution and a judgment

17 against the United States if the private property owner—

18 (1) accepts the agency head’s offer under sub19 section (c); or

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

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

22 property owner any compensation required under the

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

24 the private property owner in accordance with subsection

25 (d), or under a decision of an arbitrator under that sub-
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1 section, out of currently available appropriations support2 ing the activities giving rise to the claim for compensation.

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

4 any compensation under this section not later than 60

5 days after the date of the acceptance or the date of the

6 issuance of the decision, respectively. If insufficient funds

7 are available to the agency in the fiscal year in which the

8 award becomes final, the agency shall either pay the award

9 from appropriations available in the next fiscal year or

10 promptly seek additional appropriations for such purpose.

11 (g) FORM OF PAYMENT.—Payment under this sec12 tion, as that form is agreed to by the agency head and

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

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

15 market value of the property on the day before the

16 date of the final qualified agency action with respect

17 to which the property or interest is acquired; or

18 (2) a payment of an amount equal to the reduc19 tion in value.

20 SEC. 509. PRIVATE PROPERTY OWNER PARTICIPATION IN

21 COOPERATIVE AGREEMENTS.

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

23 U.S.C. 1535) is amended by adding at the end the follow24 ing new subsection:
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1 ‘‘(j) Notwithstanding any other provision of this sec2 tion, when the Secretary enters into a management agree3 ment under subsection (b) with any non-Federal person

4 that establishes restrictions on the use of property, the

5 Secretary shall notify all private property owners or les6 sees of the property that is subject to the management

7 agreement and shall provide an opportunity for each pri8 vate property owner or lessee to participate in the manage9 ment agreement.’’.

10 SEC. 510. ELECTION OF REMEDIES.

11 Nothing in this title shall be construed to—

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

13 precedent or as a requirement to exhaust adminis14 trative remedies, to proceed under title II or III of

15 this Act;

16 (2) bar any claim of any person relating to such

17 person’s property under any other law, including

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

19 United States Code, or chapter 91 of title 28, Unit20 ed States Code; or

21 (3) constitute a conclusive determination of—

22 (A) the value of property for purposes of

23 an appraisal for the acquisition of property, or

24 for the determination of damages; or

25 (B) any other material issue.
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1 TITLE VI—MISCELLANEOUS

2 SEC. 601. SEVERABILITY.

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

4 this Act, or the application of such provision or amend5 ment to any person or circumstance is held to be unconsti6 tutional, the remainder of this Act, the amendments made

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

8 to any person or circumstance shall not be affected there9 by.

10 SEC. 602. EFFECTIVE DATE.

11 Except as otherwise provided in this Act, the provi12 sions of this Act shall take effect on the date of enactment

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

14 Government after such date.

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