Calendar No. 301

104TH CONGRESS

1ST SESSION S. 605

A BILL

To establish a uniform and more efficient Federal

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

DECEMBER 22, 1995

Reported with an amendment
II

Calendar No. 301

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

DECEMBER 22, 1995

Reported by Mr. HATCH, with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

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 1995’’.

4 TITLE I—FINDINGS AND PURPOSES

5 SEC. 101. FINDINGS.

6 The Congress finds that—

7 (1) the private ownership of property is essen8 tial to a free society and is an integral part of the

9 American tradition of liberty and limited govern10 ment;

11 (2) the framers of the United States Constitu12 tion, in order to protect private property and liberty,

13 devised a framework of Government designed to dif14 fuse power and limit Government;

15 (3) to further ensure the protection of private

16 property, the fifth amendment to the United States

17 Constitution was ratified to prevent the taking of

18 private property by the Federal Government, except

19 for public use and with just compensation;

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

21 fifth amendment of the United States Constitution,

22 as the Supreme Court stated in Armstrong v. United

23 States, 364 U.S. 40, 49 (1960), is ‘‘to bar Govern24 ment from forcing some people alone to bear public

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

26 borne by the public as a whole’’;
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1 (5) the Federal Government has singled out

2 property holders to shoulder the cost that should be

3 borne by the public, in violation of the just com4 pensation requirement of the takings clause of the

5 fifth amendment of the United States Constitution;

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

7 Government in its overzealous regulation of the pri8 vate sector and to protect private property, which is

9 a fundamental right of the American people; and

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

11 courts now are required to employ in the absence of

12 adequate statutory language to vindicate property

13 rights under the fifth amendment of the United

14 States Constitution has been ineffective and costly

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

16 and provide an effective remedy.

17 SEC. 102. PURPOSE.

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

19 promote the private ownership of property by ensuring the

20 constitutional and legal protection of private property by

21 the United States Government by—

22 (1) the establishment of a new Federal judicial

23 claim in which to vindicate and protect property

24 rights;
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1 (2) the simplification and clarification of court

2 jurisdiction over property right claims;

3 (3) the establishment of an administrative pro4 cedure that requires the Federal Government to as5 sess the impact of government action on holders of

6 private property;

7 (4) the minimization, to the greatest extent pos8 sible, of the taking of private property by the Fed9 eral Government and to ensure that just compensa10 tion is paid by the Government for any taking; and

11 (5) the establishment of administrative com12 pensation procedures involving the enforcement of

13 the Endangered Species Act of 1973 and section

14 404 of the Federal Water Pollution Control Act.

15 TITLE II—PROPERTY RIGHTS LITIGATION

16 RELIEF

17 SEC. 201. FINDINGS.

18 The Congress finds that—

19 (1) property rights have been abrogated by the

20 application of laws, regulations, and other actions by

21 the Federal Government that adversely affect the

22 value of private property;

23 (2) certain provisions of sections 1346 and

24 1402 and chapter 91 of title 28, United States Code

25 (commonly known as the Tucker Act), that delineate
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1 the jurisdiction of courts hearing property rights

2 claims, complicates the ability of a property owner to

3 vindicate a property owner’s right to just compensa4 tion for a governmental action that has caused a

5 physical or regulatory taking;

6 (3) current law—

7 (A) forces a property owner to elect be8 tween equitable relief in the district court and

9 monetary relief (the value of the property

10 taken) in the United States Court of Federal

11 Claims;

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

13 court on the ground that the plaintiff should

14 seek just compensation in the Court of Federal

15 Claims; and

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

17 of Federal Claims on the ground that plaintiff

18 should seek equitable relief in district court;

19 (4) property owners cannot fully vindicate prop20 erty rights in one court;

21 (5) property owners should be able to fully re22 cover for a taking of their private property in one

23 court;

24 (6) certain provisions of section 1346 and 1402

25 and chapter 91 of title 28, United States Code (com-
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1 monly known as the Tucker Act) should be amend2 ed, giving both the district courts of the United

3 States and the Court of Federal Claims jurisdiction

4 to hear all claims relating to property rights; and

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

6 Code, which denies the Court of Federal Claims ju7 risdiction to entertain a suit which is pending in an8 other court and made by the same plaintiff, should

9 be repealed.

10 SEC. 202. PURPOSES.

11 The purposes of this title are to—

12 (1) establish a clear, uniform, and efficient ju13 dicial process whereby aggrieved property owners

14 can obtain vindication of property rights guaranteed

15 by the fifth amendment to the United States Con16 stitution and this Act;

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

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

19 (3) rectify the constitutional imbalance between

20 the Federal Government and the States; and

21 (4) require the Federal Government to com22 pensate property owners for the deprivation of prop23 erty rights that result from State agencies’ enforce24 ment of federally mandated programs.
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1 SEC. 203. DEFINITIONS.

2 For purposes of this title the term—

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

4 independent agency, or instrumentality of the United

5 States, including any military department, Govern6 ment corporation, Government-controlled corpora7 tion, or other establishment in the executive branch

8 of the United States Government;

9 (2) ‘‘agency action’’ means any action or deci10 sion taken by an agency that—

11 (A) takes a property right; or

12 (B) unreasonably impedes the use of prop13 erty or the exercise of property interests;

14 (3) ‘‘just compensation’’—

15 (A) means compensation equal to the full

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

17 fair market value of the private property taken

18 and business losses arising from a taking,

19 whether the taking is by physical occupation or

20 through regulation, exaction, or other means;

21 and

22 (B) shall include compounded interest cal23 culated from the date of the taking until the

24 date the United States tenders payment;
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1 (4) ‘‘owner’’ means the owner or possessor of

2 property or rights in property at the time the taking

3 occurs, including when—

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

5 guideline, policy, or action is passed or promul6 gated; or

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

8 governmental permission is denied or sus9 pended;

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

11 property protected under the fifth amendment to the

12 Constitution of the United States, any applicable

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

14 (A) real property, whether vested or

15 unvested, including—

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

17 for years, or otherwise;

18 (ii) inchoate interests in real property

19 such as remainders and future interests;

20 (iii) personalty that is affixed to or

21 appurtenant to real property;

22 (iv) easements;

23 (v) leaseholds;

24 (vi) recorded liens; and
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1 (vii) contracts or other security inter2 ests in, or related to, real property;

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

4 receive water, including any recorded lines on

5 such water right;

6 (C) rents, issues, and profits of land, in7 cluding minerals, timber, fodder, crops, oil and

8 gas, coal, or geothermal energy;

9 (D) property rights provided by, or memo10 rialized in, a contract, except that such rights

11 shall not be construed under this title to pre12 vent the United States from prohibiting the for13 mation of contracts deemed to harm the public

14 welfare or to prevent the execution of contracts

15 for—

16 (i) national security reasons; or

17 (ii) exigencies that present immediate

18 or reasonably foreseeable threats or inju19 ries to life or property;

20 (E) any interest defined as property under

21 State law; or

22 (F) any interest understood to be property

23 based on custom, usage, common law, or mutu24 ally reinforcing understandings sufficiently well25 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.

15 SECTION 1. SHORT TITLE.

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

17 Rights Act of 1995’’.

18 TITLE I—FINDINGS AND

19 PURPOSES

20 SEC. 101. FINDINGS.

21 The Congress finds that—

22 (1) the private ownership of property is essential

23 to a free society and is an integral part of the Amer24 ican tradition of liberty and limited government;
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1 (2) the framers of the United States Constitu2 tion, in order to protect private property and liberty,

3 devised a framework of Government designed to dif4 fuse power and limit Government;

5 (3) to further ensure the protection of private

6 property, the fifth amendment to the United States

7 Constitution was ratified to prevent the taking of pri8 vate property by the Federal Government, except for

9 public use and with just compensation;

10 (4) the purpose of the takings clause of the fifth

11 amendment of the United States Constitution, as the

12 Supreme Court stated in Armstrong v. United States,

13 364 U.S. 40, 49 (1960), is ‘‘to bar Government from

14 forcing some people alone to bear public burdens,

15 which in all fairness and justice, should be borne by

16 the public as a whole’’;

17 (5) the Federal Government has singled out

18 property holders to shoulder the cost that should be

19 borne by the public, in violation of the just compensa20 tion requirement of the takings clause of the fifth

21 amendment of the United States Constitution;

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

23 Government in its overzealous regulation of the pri24 vate sector and to protect private property, which is

25 a fundamental right of the American people; and
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1 (7) the incremental, fact-specific approach that

2 courts now are required to employ in the absence of

3 adequate statutory language to vindicate property

4 rights under the fifth amendment of the United States

5 Constitution has been ineffective and costly and there

6 is a need for Congress to clarify the law and provide

7 an effective remedy.

8 SEC. 102. PURPOSE.

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

10 promote the private ownership of property by ensuring the

11 constitutional and legal protection of private property by

12 the United States Government by—

13 (1) the establishment of a new Federal judicial

14 claim through which to vindicate and protect prop15 erty rights;

16 (2) the simplification and clarification of court

17 jurisdiction over property right claims;

18 (3) the establishment of an administrative proce19 dure that requires the Federal Government to assess

20 the impact of government action on holders of private

21 property;

22 (4) the minimization, to the greatest extent pos23 sible, of the taking of private property by the Federal

24 Government and to ensure that just compensation is

25 paid by the Government for any taking; and
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1 (5) the establishment of administrative com2 pensation procedures involving the enforcement of the

3 Endangered Species Act of 1973 and section 404 of

4 the Federal Water Pollution Control Act.

5 TITLE II—PROPERTY RIGHTS

6 LITIGATION RELIEF

7 SEC. 201. FINDINGS.

8 The Congress finds that—

9 (1) property rights have been abrogated by the

10 application of laws, regulations, and other actions by

11 the Federal Government that adversely affect the

12 value of private property;

13 (2) certain provisions of sections 1346 and 1402

14 and chapter 91 of title 28, United States Code (com15 monly known as the Tucker Act), that delineate the

16 jurisdiction of courts hearing property rights claims,

17 complicates the ability of a property owner to vindi18 cate a property owner’s right to just compensation for

19 a governmental action that has caused a physical or

20 regulatory taking;

21 (3) current law—

22 (A) forces a property owner to elect between

23 equitable relief in the district court and mone24 tary relief (the value of the property taken) in

25 the United States Court of Federal Claims;
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1 (B) is used to urge dismissal in the district

2 court on the ground that the plaintiff should seek

3 just compensation in the Court of Federal

4 Claims; and

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

6 of Federal Claims on the ground that plaintiff

7 should seek equitable relief in district court;

8 (4) property owners cannot fully vindicate prop9 erty rights in one court;

10 (5) property owners should be able to fully re11 cover for a taking of their private property in one

12 court;

13 (6) certain provisions of section 1346 and 1402

14 and chapter 91 of title 28, United States Code (com15 monly known as the Tucker Act) should be amended,

16 giving both the district courts of the United States

17 and the Court of Federal Claims jurisdiction to hear

18 all claims relating to property rights; and

19 (7) section 1500 of title 28, United States Code,

20 which denies the Court of Federal Claims jurisdiction

21 to entertain a suit which is pending in another court

22 and made by the same plaintiff, should be repealed.

23 SEC. 202. PURPOSES.

24 The purposes of this title are to—
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1 (1) establish a clear, uniform, and efficient judi2 cial process whereby aggrieved property owners can

3 obtain vindication of property rights guaranteed by

4 the fifth amendment to the United States Constitution

5 and this Act;

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

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

8 (3) rectify the constitutional imbalance between

9 the Federal Government and the States; and

10 (4) require the Federal Government to com11 pensate property owners for the deprivation of prop12 erty rights that result from State agencies’ enforce13 ment of federally mandated programs.

14 SEC. 203. DEFINITIONS.

15 For purposes of this title the term—

16 (1) ‘‘agency’’ means a department, agency, inde17 pendent agency, or instrumentality of the United

18 States, including any military department, Govern19 ment corporation, Government-controlled corporation,

20 or other establishment in the executive branch of the

21 United States Government;

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

23 or decision taken by an agency or State agency that

24 at the time of such action, inaction, or decision ad25 versely affects private property rights;
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1 (3) ‘‘just compensation’’—

2 (A) means compensation equal to the full

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

4 fair market value of the private property taken,

5 whether the taking is by physical occupation or

6 through regulation, exaction, or other means;

7 and

8 (B) shall include compounded interest cal9 culated from the date of the taking until the date

10 the United States tenders payment;

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

12 property or rights in property at the time the taking

13 occurs, including when—

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

15 guideline, policy, or action is passed or promul16 gated; or

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

18 governmental permission is denied or suspended;

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

20 property protected under the fifth amendment to the

21 United States Constitution, any applicable Federal or

22 State law, or this Act, and includes—

23 (A) real property, whether vested or

24 unvested, including—
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1 (i) estates in fee, life estates, estates for

2 years, or otherwise;

3 (ii) inchoate interests in real property

4 such as remainders and future interests;

5 (iii) personalty that is affixed to or

6 appurtenant to real property;

7 (iv) easements;

8 (v) leaseholds;

9 (vi) recorded liens; and

10 (vii) contracts or other security inter11 ests in, or related to, real property;

12 (B) the right to use water or the right to re13 ceive water, including any recorded lines on such

14 water right;

15 (C) rents, issues, and profits of land, in16 cluding minerals, timber, fodder, crops, oil and

17 gas, coal, or geothermal energy;

18 (D) property rights provided by, or memori19 alized in, a contract, except that such rights

20 shall not be construed under this title to prevent

21 the United States from prohibiting the formation

22 of contracts deemed to harm the public welfare or

23 to prevent the execution of contracts for—

24 (i) national security reasons; or
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1 (ii) exigencies that present immediate

2 or reasonably foreseeable threats or injuries

3 to life or property;

4 (E) any interest defined as property under

5 State law; or

6 (F) any interest understood to be property

7 based on custom, usage, common law, or mutu8 ally reinforcing understandings sufficiently well9 grounded in law to back a claim of interest;

10 (6) ‘‘State agency’’ means any State department,

11 agency, political subdivision, or instrumentality

12 that—

13 (A) carries out or enforces a regulatory pro14 gram required under Federal law;

15 (B) is delegated administrative or sub16 stantive responsibility under a Federal regu17 latory program; or

18 (C) receives Federal funds in connection

19 with a regulatory program established by a

20 State,

21 if the State enforcement of the regulatory program, or

22 the receipt of Federal funds in connection with a reg23 ulatory program established by a State, is directly re24 lated to the taking of private property seeking to be

25 vindicated under this Act; and
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1 (7) ‘‘taking of private property’’, ‘‘taking’’, or

2 ‘‘take’’—

3 (A) means any action whereby private

4 property is the object of that action and is taken

5 so as to require compensation under the fifth

6 amendment to the United States Constitution or

7 under this Act, including by physical invasion,

8 regulation, exaction, condition, or other means;

9 and

10 (B) shall not include—

11 (i) a condemnation action filed by the

12 United States in an applicable court; or

13 (ii) an action filed by the United

14 States relating to criminal forfeiture.

15 SEC. 204. COMPENSATION FOR TAKEN PROPERTY.

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

17 take private property except for public use and with just

18 compensation to the property owner. A property owner shall

19 receive just compensation if—

20 (1) as a consequence of an action of any agency,

21 or State agency, private property (whether all or in

22 part) has been physically invaded or otherwise taken

23 without the consent of the owner; and

24 (2)(A) such action does not substantially ad25 vance the stated governmental interest to be achieved
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1 by the legislation or regulation on which the action

2 is based;

3 (B) such action exacts or affects the owner’s con4 stitutional or otherwise lawful right to use the prop5 erty or a portion of such property as a condition for

6 the granting of a permit, license, variance, or any

7 other agency action without a rough proportionality

8 between the stated need for the required dedication

9 and the impact of the proposed use of the property;

10 (C) such action results in the property owner

11 being deprived, either temporarily or permanently, of

12 all or substantially all economically beneficial or pro13 ductive use of the property or that part of the prop14 erty affected by the action without a showing that

15 such deprivation inheres in the title itself;

16 (D) such action diminishes the fair market value

17 of the property or the affected portion of the property

18 which is the subject of the action by 33 percent or

19 more with respect to the value immediately prior to

20 the governmental action; or

21 (E) under any other circumstance where a tak22 ing has occurred within the meaning of the fifth

23 amendment of the United States Constitution.

24 (b) NO CLAIM AGAINST STATE OR STATE INSTRUMEN25 TALITY.—No action may be filed under this section against
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1 a State agency for carrying out the functions described

2 under section 203(6). Claims arising from the action, inac3 tion, or decision of a State agency are properly filed against

4 the Federal agency which administers the relevant Federal

5 program.

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

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

8 (A) subsection (a)(2)(A), with regard to showing

9 the nexus between the stated governmental purpose of

10 the governmental interest and the impact on the pro11 posed use of private property;

12 (B) subsection (a)(2)(B), with regard to showing

13 the proportionality between the exaction or affect and

14 the impact of the proposed use of the property; and

15 (C) subsection (a)(2)(C), with regard to showing

16 that such deprivation of value inheres in the title to

17 the property.

18 (2) The property owner shall have the burden of proof

19 in any action described under subsection (a)(2)(D), with

20 regard to establishing the diminution of value of property.

21 (d) COMPENSATION AND NUISANCE EXCEPTION TO

22 PAYMENT OF JUST COMPENSATION.—(1) No compensation

23 shall be required by this Act if the owner’s use or proposed

24 use of the property is a nuisance as commonly understood

25 and defined by background principles of nuisance and
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1 property law, as understood within the State in which the

2 property is situated. To bar an award of damages under

3 this Act, the United States shall have the burden of proof

4 to establish that the use or proposed use of the property is

5 a nuisance.

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

7 directly takes property or a portion of property under sub8 section (a), compensation to the owner of the property that

9 is affected by the action shall be either the greater of an

10 amount equal to the difference between—

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

12 affected portion of the property before such property

13 or the affected portion of such property became the ob14 ject of the agency action; and

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

16 affected portion of the property when such property or

17 the affected portion of such property becomes subject

18 to the agency action.

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

20 value shall include business losses.

21 (e) TRANSFER OF PROPERTY INTEREST.—The United

22 States shall take title to the property interest for which the

23 United States pays a claim under this Act.

24 (f) SOURCE OF COMPENSATION.—Awards of compensa25 tion referred to in this section, whether by judgment, settle-
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1 ment, or administrative action, shall be promptly paid by

2 the agency out of currently available appropriations sup3 porting the activities giving rise to the claims for compensa4 tion. If the agency action resulted from a requirement im5 posed by another agency, the agency making the payment

6 or satisfying the judgment may seek partial or complete re7 imbursement from the appropriated funds of the other agen8 cy. If insufficient funds are available to the agency in the

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

10 shall either pay the award from appropriations available

11 in the next fiscal year or promptly seek additional appro12 priations for such purpose.

13 SEC. 205. JURISDICTION AND JUDICIAL REVIEW.

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

15 action under this Act to challenge the validity of any agency

16 action that adversely affects the owner’s interest in private

17 property in either the United States District Court or the

18 United States Court of Federal Claims. This section con19 stitutes express waiver of the sovereign immunity of the

20 United States. Notwithstanding any other provision of law

21 and notwithstanding the issues involved, the relief sought,

22 or the amount in controversy, each court shall have concur23 rent jurisdiction over both claims for monetary relief and

24 claims seeking invalidation of any Act of Congress or any

25 regulation of an agency as defined under this Act affecting
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1 private property rights. The plaintiff shall have the election

2 of the court in which to file a claim for relief.

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

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

5 the Federal Circuit shall have exclusive jurisdiction—

6 (1) of an appeal from a final decision of a dis7 trict court of the United States, the United States

8 District Court of Guam, the United States District

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

10 the Northern Mariana Islands, if the jurisdiction of

11 that court was based, in whole or in part, on sub12 section (a); and

13 (2) of an appeal from a final decision of the

14 United States Court of Federal Claims if that juris15 diction was based, in whole or in part, on subsection

16 (a).

17 (c) STANDING.—Persons adversely affected by an agen18 cy action taken under this Act shall have standing to chal19 lenge and seek judicial review of that action.

20 (d) AMENDMENTS TO TITLE 28, UNITED STATES

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

22 is amended—

23 (A) in paragraph (1) by amending the first sen24 tence to read as follows: ‘‘The United States Court of

25 Federal Claims shall have jurisdiction to render judg-
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1 ment upon any claim against the United States for

2 monetary relief founded either upon the Constitution

3 or any Act of Congress or any regulation of an execu4 tive department, or upon any express or implied con5 tract with the United States, in cases not sounding in

6 tort, or for invalidation of any Act of Congress or any

7 regulation of an executive department that adversely

8 affects private property rights in violation of the fifth

9 amendment of the United States Constitution’’;

10 (B) in paragraph (2) by inserting before the first

11 sentence the following: ‘‘In any case within its juris12 diction, the Court of Federal Claims shall have the

13 power to grant injunctive and declaratory relief when

14 appropriate.’’; and

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

16 new paragraphs:

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

18 the Court of Federal Claims shall also have supple19 mental jurisdiction, concurrent with the courts des20 ignated in section 1346(b) of this title, to render judg21 ment upon any related tort claim authorized under

22 section 2674 of this title.

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

24 Court of Federal Claims which constitute judicial re25 view of agency action (rather than de novo proceed-
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1 ings), the provisions of section 706 of title 5 shall

2 apply.’’.

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

4 is repealed.

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

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

7 relating to section 1500.

8 SEC. 206. STATUTE OF LIMITATIONS.

9 The statute of limitations for actions brought under

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

11 private property.

12 SEC. 207. ATTORNEYS’ FEES AND COSTS.

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

14 brought under this title, shall award costs of litigation (in15 cluding reasonable attorney and expert witness fees) to any

16 prevailing plaintiff.

17 SEC. 208. RULES OF CONSTRUCTION.

18 Nothing in this title shall be construed to interfere with

19 the authority of any State to create additional property

20 rights.

21 SEC. 209. EFFECTIVE DATE.

22 The provisions of this title and amendments made by

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

24 this Act and shall apply to any agency action that occurs

25 after such date.
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1 TITLE III—ALTERNATIVE

2 DISPUTE 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 title II of this

6 Act or litigation commenced under such title may elect to

7 resolve the dispute through settlement or arbitration. In the

8 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 accordance

12 with the alternative dispute resolution procedures es13 tablished by the American Arbitration Association;

14 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 ARBITRATION.—

20 The amount of arbitration awards shall be paid from the

21 responsible agency’s currently available appropriations

22 supporting the agency’s activities giving rise to the claim

23 for compensation. If insufficient funds are available to the

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

25 the agency shall either pay the award from appropriations
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1 available in the next fiscal year or promptly seek additional

2 appropriations for such purpose.

3 (c) REVIEW OF ARBITRATION.—(1) Appeal from arbi4 tration decisions shall be to the United States District

5 Court or the United States Court of Federal Claims in the

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

7 (2) The provisions of title 9, United States Code (relat8 ing to arbitration), shall apply to enforcement of awards

9 rendered under this section.

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

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

12 compensation shall be promptly paid by the agency from

13 appropriations supporting the activities giving rise to the

14 claim for compensation currently available at the time of

15 final action on the appeal. If insufficient funds are avail16 able to the agency in the fiscal year in which the award

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

18 appropriations available in the next fiscal year or promptly

19 seek additional appropriations for such purpose.

20 TITLE IV—PRIVATE PROPERTY

21 TAKING IMPACT ANALYSIS

22 SEC. 401. PURPOSES.

23 The purposes of this title are—

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

25 rights of the public; and
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1 (2) to the extent practicable, avoid takings of

2 private property by assessing the effect of government

3 action on private property rights.

4 SEC. 402. DEFINITIONS.

5 For purposes of this title the term—

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

7 section 203 of this Act, but shall not include the Gen8 eral Accounting Office;

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

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

11 States Code; and

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

13 meaning as such term is defined under section 203 of

14 this Act.

15 SEC. 403. PRIVATE PROPERTY TAKING IMPACT ANALYSIS.

16 (a) IN GENERAL.—(1) The Congress authorizes and di17 rects that, to the fullest extent possible—

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

19 the United States shall be interpreted and adminis20 tered in accordance with the policies under this title;

21 and

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

23 Federal Government shall complete a private property

24 taking impact analysis before issuing or promulgat25 ing any policy, regulation, proposed legislation, or re-
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1 lated agency action which is likely to result in a tak2 ing of private property.

3 (2) The provisions of paragraph (1)(B) shall not apply

4 to—

5 (A) an action in which the power of eminent do6 main is formally exercised;

7 (B) an action taken—

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

9 the United States; or

10 (ii) in preparation for, or in connection

11 with, treaty negotiations with foreign nations;

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

13 for a violation of law, of property for forfeiture, or as

14 evidence in a criminal proceeding;

15 (D) a study or similar effort or planning activ16 ity;

17 (E) a communication between an agency and a

18 State or local land-use planning agency concerning a

19 planned or proposed State or local activity that regu20 lates private property, regardless of whether the com21 munication is initiated by an agency or is under22 taken in response to an invitation by the State or

23 local authority;
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1 (F) the placement of a military facility or a

2 military activity involving the use of solely Federal

3 property;

4 (G) any military or foreign affairs function (in5 cluding a procurement function under a military or

6 foreign affairs function), but not including the civil

7 works program of the Army Corps of Engineers; and

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

9 threat to health or safety that constitutes an emer10 gency requiring immediate response or the issuance of

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

12 States Code, if the taking impact analysis is com13 pleted after the emergency action is carried out or the

14 regulation is published.

15 (3) A private property taking impact analysis shall

16 be a written statement that includes—

17 (A) the specific purpose of the policy, regulation,

18 proposal, recommendation, or related agency action;

19 (B) an assessment of the likelihood that a taking

20 of private property will occur under such policy, reg21 ulation, proposal, recommendation, or related agency

22 action;

23 (C) an evaluation of whether such policy, regula24 tion, proposal, recommendation, or related agency ac-
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1 tion is likely to require compensation to private prop2 erty owners;

3 (D) alternatives to the policy, regulation, pro4 posal, recommendation, or related agency action that

5 would achieve the intended purposes of the agency ac6 tion and lessen the likelihood that a taking of private

7 property will occur; and

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

9 Federal Government if the Government is required to

10 compensate a private property owner.

11 (4) Each agency shall provide an analysis required

12 under this section as part of any submission otherwise re13 quired to be made to the Office of Management and Budget

14 in conjunction with a proposed regulation.

15 (b) GUIDANCE AND REPORTING REQUIREMENTS.—(1)

16 The Attorney General of the United States shall provide

17 legal guidance in a timely manner, in response to a request

18 by an agency, to assist the agency in complying with this

19 section.

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

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

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

23 Office of Management and Budget and the Attorney General

24 of the United States identifying each agency action that

25 has resulted in the preparation of a taking impact analysis,
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1 the filing of a taking claim, or an award of compensation

2 under the just compensation clause of the fifth amendment

3 of the United States Constitution. The Director of the Office

4 of Management and Budget and the Attorney General of

5 the United States shall publish in the Federal Register, on

6 an annual basis, a compilation of the reports of all agencies

7 submitted under this paragraph.

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

9 shall—

10 (1) make each private property taking impact

11 analysis available to the public; and

12 (2) to the greatest extent practicable, transmit a

13 copy of such analysis to the owner or any other per14 son with a property right or interest in the affected

15 property.

16 (d) PRESUMPTIONS IN PROCEEDINGS.—For the pur17 pose of any agency action or administrative or judicial pro18 ceeding, there shall be a rebuttable presumption that the

19 costs, values, and estimates in any private property takings

20 impact analysis shall be outdated and inaccurate, if—

21 (1) such analysis was completed 5 years or more

22 before the date of such action or proceeding; and

23 (2) such costs, values, or estimates have not been

24 modified within the 5-year period preceding the date

25 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 to

5 require an uncompensated taking of private property as de6 fined by this Act.

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

8 this title as expressed in section 401, all agencies shall—

9 (1) review, and where appropriate, re-promul10 gate all regulations that result in takings of private

11 property under this Act, and reduce such takings of

12 private property to the maximum extent possible

13 within existing statutory requirements;

14 (2) prepare and submit their budget requests

15 consistent with the purposes of this title as expressed

16 in section 401 for fiscal year 1997 and all fiscal years

17 thereafter; and

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

19 section, submit to the appropriate authorizing and

20 appropriating committees of the Congress a detailed

21 list of statutory changes that are necessary to meet

22 fully the purposes of section 401, along with a state23 ment prioritizing such amendments and an expla24 nation of the agency’s reasons for such prioritization.

25 SEC. 405. RULES OF CONSTRUCTION.

26 Nothing in this title shall be construed to—
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1 (1) limit any right or remedy, constitute a con2 dition precedent or a requirement to exhaust adminis3 trative remedies, or bar any claim of any person re4 lating to such person’s property under any other law,

5 including claims made under this Act, section 1346

6 or 1402 of title 28, United States Code, or chapter 91

7 of title 28, United States Code; or

8 (2) constitute a conclusive determination of—

9 (A) the value of any property for purposes

10 of an appraisal for the acquisition of property,

11 or for the determination of damages; or

12 (B) any other material issue.

13 SEC. 406. STATUTE OF LIMITATIONS.

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

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

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

17 applicable private property taking impact analysis to the

18 Office of Management and Budget.

19 TITLE V—PRIVATE PROPERTY

20 OWNERS ADMINISTRATIVE

21 BILL OF RIGHTS

22 SEC. 501. FINDINGS AND PURPOSE.

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

24 (1) a number of Federal environmental pro25 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 implemented

4 by employees, agents, and representatives of the Fed5 eral Government in a manner that deprives private

6 property owners of the use and control of property;

7 (2) as Federal programs are proposed that would

8 limit and restrict the use of private property to pro9 vide habitat for plant and animal species, the rights

10 of private property owners must be recognized and re11 spected;

12 (3) private property owners are being forced by

13 Federal policy to resort to extensive, lengthy, and ex14 pensive litigation to protect certain basic civil rights

15 guaranteed by the United States Constitution;

16 (4) many private property owners do not have

17 the financial resources or the extensive commitment of

18 time to proceed in litigation against the Federal Gov19 ernment;

20 (5) a clear Federal policy is needed to guide and

21 direct Federal agencies with respect to the implemen22 tation of environmental laws that directly impact

23 private property;

24 (6) all private property owners should and are

25 required to comply with current nuisance laws and
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1 should not use property in a manner that harms their

2 neighbors;

3 (7) nuisance laws have traditionally been en4 acted, implemented, and enforced at the State and

5 local level where such laws are best able to protect the

6 rights of all private property owners and local citi7 zens; and

8 (8) traditional pollution control laws are in9 tended to protect the general public’s health and phys10 ical welfare, and current habitat protection programs

11 are intended to protect the welfare of plant and ani12 mal species.

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

14 (1) provide a consistent Federal policy to encour15 age, support, and promote the private ownership of

16 property; and

17 (2) establish an administrative process and rem18 edy to ensure that the constitutional and legal rights

19 of private property owners are protected by the Fed20 eral Government and Federal employees, agents, and

21 representatives.

22 SEC. 502. DEFINITIONS.

23 For purposes of this title the term—

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

25 Act of 1973 (16 U.S.C. 1531 et seq.) and section 404
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1 of the Federal Water Pollution Control Act (33 U.S.C.

2 1344);

3 (2) ‘‘agency head’’ means the Secretary or Ad4 ministrator with jurisdiction or authority to take a

5 final agency action under the Endangered Species Act

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

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

8 1344);

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

10 than an officer, employee, agent, department, or in11 strumentality of—

12 (A) the Federal Government; or

13 (B) a foreign government;

14 (4) ‘‘private property owner’’ means a non-Fed15 eral person (other than an officer, employee, agent,

16 department, or instrumentality of a State, municipal17 ity, or political subdivision of a State, acting in an

18 official capacity or a State, municipality, or subdivi19 sion of a State) that—

20 (A) owns property referred to under para21 graph (5) (A) or (B); or

22 (B) holds property referred to under para23 graph (5)(C);

24 (5) ‘‘property’’ means—

25 (A) land;
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1 (B) any interest in land; and

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

3 water; and

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

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

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

7 (A) under section 404 of the Federal Water

8 Pollution Control Act (33 U.S.C. 1344); or

9 (B) under the Endangered Species Act of

10 1973 (16 U.S.C. 1531 et seq.).

11 SEC. 503. PROTECTION OF PRIVATE PROPERTY RIGHTS.

12 (a) IN GENERAL.—In implementing and enforcing the

13 Acts, each agency head shall—

14 (1) comply with applicable State and tribal gov15 ernment laws, including laws relating to private

16 property rights and privacy; and

17 (2) administer and implement the Acts in a

18 manner that has the least impact on private property

19 owners’ constitutional and other legal rights.

20 (b) FINAL DECISIONS.—Each agency head shall de21 velop and implement rules and regulations for ensuring

22 that the constitutional and other legal rights of private

23 property owners are protected when the agency head makes,

24 or participates with other agencies in the making of, any
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1 final decision that restricts the use of private property in

2 administering and implementing this Act.

3 SEC. 504. PROPERTY OWNER CONSENT FOR ENTRY.

4 (a) IN GENERAL.—An agency head may not enter pri5 vately owned property to collect information regarding the

6 property, unless the private property owner has—

7 (1) consented in writing to that entry;

8 (2) after providing that consent, been provided

9 notice of that entry; and

10 (3) been notified that any raw data collected

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

12 if requested by the private property owner.

13 (b) NONAPPLICATION.—Subsection (a) does not pro14 hibit entry onto property for the purpose of obtaining con15 sent or providing notice required under subsection (a).

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 on

19 privately owned property to implement or enforce the Acts,

20 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 Act

10 (33 U.S.C. 1344) is amended by adding at the end the fol11 lowing 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 property

16 owners or their authorized representatives an oppor17 tunity for an administrative appeal of the following

18 actions under this section:

19 ‘‘(A) A determination of regulatory jurisdic20 tion 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 pro5 vide that any administrative appeal of an action de6 scribed in paragraph (1) shall be heard and decided

7 by an official other than the official who took the ac8 tion, and shall be conducted at a location which is in

9 the vicinity of the property involved in the action.

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

11 compensation, if appropriate, subject to the provisions

12 of section 508 of the Omnibus Property Rights Act of

13 1995.’’.

14 SEC. 507. RIGHT TO ADMINISTRATIVE APPEAL UNDER THE

15 ENDANGERED SPECIES ACT OF 1973.

16 Section 11 of the Endangered Species Act of 1973 (16

17 U.S.C. 1540) is amended by adding at the end the following

18 new subsection:

19 ‘‘(i) ADMINISTRATIVE APPEALS.—

20 ‘‘(1) The Secretary shall, after notice and oppor21 tunity for public comment, issue rules to establish

22 procedures to allow private property owners or their

23 authorized representatives an opportunity for an ad24 ministrative 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 prohibiting

21 or substantially limiting the use of the property.

22 ‘‘(2) Rules issued under paragraph (1) shall pro23 vide that any administrative appeal of an action de24 scribed in paragraph (1) shall be heard and decided

25 by an official other than the official who took the ac-
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1 tion, and shall be conducted at a location which is in

2 the vicinity of the parcel of property involved in the

3 action.

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

5 compensation, if appropriate, subject to the provisions

6 of section 508 of the Omnibus Property Rights Act of

7 1995.’’.

8 SEC. 508. COMPENSATION FOR TAKING OF PRIVATE PROP9 ERTY.

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

11 a consequence of a final qualified agency action of an agen12 cy head, is deprived of 33 percent or more of the fair market

13 value of the affected portion of the property as determined

14 by a qualified appraisal expert, is entitled to receive com15 pensation in accordance with the standards set forth in sec16 tion 204 of this Act.

17 (b) TIME LIMITATION FOR COMPENSATION RE18 QUEST.—No later than 90 days after receipt of a final deci19 sion of an agency head that deprives a private property

20 owner of fair market value or viable use of property for

21 which compensation is required under subsection (a), the

22 private property owner may submit in writing a request

23 to the agency head for compensation in accordance with

24 subsection (c).
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1 (c) OFFER OF AGENCY HEAD.—No later than 180 days

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

3 head shall provide to the private property owner, where ap4 propriate under the standards of this Act—

5 (1) an offer to purchase the affected property of

6 the private property owner at a fair market value as7 suming 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 value

10 of the property without those restrictions and the fair

11 market value of the property with those restrictions.

12 (d) PRIVATE PROPERTY OWNER’S RESPONSE.—(1) No

13 later than 60 days after the date of receipt of the agency

14 head’s offers under subsection (c) (1) and (2) the private

15 property owner shall accept one of the offers or reject both

16 offers.

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

18 the private property owner may submit the matter for arbi19 tration to an arbitrator appointed by the agency head from

20 a list of arbitrators submitted to the agency head by the

21 American Arbitration Association. The arbitration shall be

22 conducted in accordance with the real estate valuation arbi23 tration rules of that association. For purposes of this sec24 tion, 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 owed

3 to the private property owner; and

4 (B) whether the private property owner has been

5 deprived of fair market value or viable use of prop6 erty for which compensation is required under sub7 section (a).

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

9 property owner any compensation required under the terms

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

11 property owner in accordance with subsection (d), or under

12 a decision of an arbitrator under that subsection, out of

13 currently available appropriations supporting the activities

14 giving rise to the claim for compensation. The agency head

15 shall pay to the extent of available funds any compensation

16 under this section not later than 60 days after the date of

17 the acceptance or the date of the issuance of the decision,

18 respectively. If insufficient funds are available to the agency

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

20 agency shall either pay the award from appropriations

21 available in the next fiscal year or promptly seek additional

22 appropriations for such purpose.

23 (f) TYPE OF PAYMENT.—At the election of the property

24 owner, payment under this section shall be provided for in

25 accordance with the standard set forth in section 204(d)(2)
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1 or in the amount equal to the fair market value of the prop2 erty before the date of the final qualified agency action with

3 respect to which the property or interest is acquired.

4 SEC. 509. PRIVATE PROPERTY OWNER PARTICIPATION IN

5 COOPERATIVE AGREEMENTS.

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

7 U.S.C. 1535) is amended by adding at the end the following

8 new subsection:

9 ‘‘(j) Notwithstanding any other provision of this sec10 tion, when the Secretary enters into a management agree11 ment under subsection (b) with any non-Federal person

12 that establishes restrictions on the use of property, the Sec13 retary shall notify all private property owners or lessees

14 of the property that is subject to the management agreement

15 and shall provide an opportunity for each private property

16 owner or lessee to participate in the management agree17 ment.’’.

18 SEC. 510. ELECTION OF REMEDIES.

19 Nothing in this title shall be construed to—

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

21 precedent or as a requirement to exhaust administra22 tive remedies, to proceed under title II or III of this

23 Act;

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

25 person’s property under any other law, including
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1 claims made under section 1346 or 1402 of title 28,

2 United States Code, or chapter 91 of title 28, United

3 States Code; or

4 (3) constitute a conclusive determination of—

5 (A) the value of property for purposes of an

6 appraisal for the acquisition of property, or for

7 the determination of damages; or

8 (B) any other material issue.

9 TITLE VI—MISCELLANEOUS

10 SEC. 601. SEVERABILITY.

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

12 this Act, or the application of such provision or amendment

13 to any person or circumstance is held to be unconstitu14 tional, the remainder of this Act, the amendments made by

15 this Act, and the application of the provisions of such to

16 any person or circumstance shall not be affected thereby.

17 SEC. 602. EFFECTIVE DATE.

18 Except as otherwise provided in this Act, the provi19 sions of this Act shall take effect on the date of enactment

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

21 Government after such date.

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