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103D CONGRESS

2D SESSION S. 1915

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

owners.

IN THE SENATE OF THE UNITED STATES

MARCH 9 (legislative day, FEBRUARY 22), 1994

Mr. SHELBY (for himself, Mr. NICKLES, Mr. PRESSLER, Mr. GORTON, Mr.

BURNS, Mr. MURKOWSKI, Mr. FAIRCLOTH, Mr. PACKWOOD, Mr. HATCH,

Mr. HEFLIN, and Mr. LOTT) introduced the following bill; which was

read twice and referred to the Committee on Environment and Public

Works

A BILL

To require certain Federal agencies to protect the right of

private property owners.

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

3 SECTION 1. SHORT TITLE.

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

5 Owners Bill of Rights’’.

6 SEC. 2. FINDINGS AND PURPOSE.

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

8 (1) Our democracy was founded on principles of

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

3 private property without the payment of just com4 pensation.

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

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

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

9 1344) have been implemented by employees, agents,

10 and representatives of the Federal Government in a

11 manner that deprives private property owners of the

12 use and control of their property.

13 (3) As new Federal programs are proposed that

14 would limit and restrict the use of private property

15 to provide habitat for plant and animal species, the

16 rights of private property owners must be recognized

17 and respected.

18 (4) Private property owners are being forced by

19 Federal policy to resort to extensive, lengthy, and

20 expensive litigation to protect certain basic civil

21 rights guaranteed by the Constitution.

22 (5) Since many private property owners do not

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

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

2 to their implementation of environmental laws that

3 directly impact private property.

4 (6) While all private property owners should

5 and must abide by current nuisance laws and should

6 not use their property in a manner that harms their

7 neighbors, these laws have traditionally been en8 acted, implemented, and enforced at the State and

9 local level where they are best able to protect the

10 rights of all private property owners and local

11 citizens.

12 (7) While traditional pollution control laws are

13 intended to protect the general public’s health and

14 physical welfare, current habitat protection pro15 grams are intended to protect the welfare of plant

16 and animal species, while allowing the recreational

17 and esthetic opportunities for the public.

18 (b) PURPOSES.—It is the purpose of this Act to pro19 vide a consistent Federal policy to encourage, support, and

20 promote the private ownership of property and to ensure

21 that the constitutional and legal rights of private property

22 owners are protected by the Federal Government, its em23 ployees, agents and representatives.
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1 SEC. 3. PROTECTION OF PRIVATE PROPERTY RIGHTS.

2 (a) In implementing and enforcing the Acts, each

3 agency head shall comply with applicable State and tribal

4 government laws, including laws relating to private prop5 erty rights and privacy; and shall administer and imple6 ment the Acts in a manner that has the least impact on

7 private property owners’ constitutional and other legal

8 rights.

9 (b) Each agency head shall develop and implement

10 rules and regulations for ensuring that the constitutional

11 and other legal rights of private property owners are pro12 tected when the agency head makes, or participates with

13 other agencies in the making of, any final decision that

14 restricts the use of private property.

15 SEC. 4. PROPERTY OWNER CONSENT FOR ENTRY.

16 (a) An agency head may not enter privately-owned

17 property to collect information regarding the property, un18 less the private property owner has—

19 (1) consented in writing to that entry;

20 (2) after providing that consent, been provided

21 notice of that entry; and

22 (3) been notified that any raw data collected

23 from the property must be made available at no

24 cost, if requested by the private property owner.
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1 (b) Subsection (a) does not prohibit entry onto prop2 erty for the purpose of obtaining consent or providing no3 tice required under subsection (a).

4 SEC. 5. RIGHT TO REVIEW AND DISPUTE DATA COLLECTED

5 FROM PRIVATE PROPERTY.

6 An agency head may not use data that is collected

7 on privately-owned property to implement or enforce any

8 of the Acts, unless—

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

10 property owner—

11 (A) access to the information;

12 (B) a detailed description of the manner in

13 which the information was collected; and

14 (C) an opportunity to dispute the accuracy

15 of the information; and

16 (2) the agency head has determined that the in17 formation is accurate, if the private property owner

18 disputes the information pursuant to subparagraph

19 (C).

20 SEC. 6. RIGHT TO AN ADMINISTRATIVE APPEAL OF WET21 LANDS DECISIONS.

22 Section 404 of the Federal Water Pollution Control

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

24 the following new subsection:

25 ‘‘(u) ADMINISTRATIVE APPEALS.—
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1 ‘‘(1) The Secretary or Administrator shall, after

2 notice and opportunity for public comment, issue

3 rules to establish procedures to allow private prop4 erty owners or their authorized representatives an

5 opportunity for an administrative appeal of the fol6 lowing actions under this section:

7 ‘‘(A) A determination of regulatory juris8 diction over a particular parcel of property.

9 ‘‘(B) The denial of a permit.

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

11 ‘‘(D) The imposition of an administrative

12 penalty.

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

14 the private property owner to restore or other15 wise alter the property.

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

17 provide that any administrative appeal of an action

18 described in paragraph (1) shall be heard and de19 cided by an official other than the official who took

20 the action, and shall be conducted at a location

21 which is in the vicinity of the property involved in

22 the action.’’.
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1 SEC. 7. RIGHT TO ADMINISTRATIVE APPEAL UNDER THE

2 ENDANGERED SPECIES ACT OF 1973.

3 Section 11 of the Endangered Species Act of 1973

4 (16 U.S.C. 1540) is amended by adding at the end the

5 following new subsection:

6 ‘‘(i) ADMINISTRATIVE APPEALS.—

7 ‘‘(1) The Secretary shall, after notice and op8 portunity for public comment, issue rules to estab9 lish procedures to allow private property owners or

10 their authorized representatives an opportunity for

11 an administrative appeal of the following actions

12 under this section:

13 ‘‘(A) A determination that a particular

14 parcel of property is critical habitat of a listed

15 species.

16 ‘‘(B) The denial of a permit for an inciden17 tal take.

18 ‘‘(C) The terms and conditions of an inci19 dental take permit.

20 ‘‘(D) The imposition of an administrative

21 penalty.

22 ‘‘(E) The imposition of an order prohibit23 ing or substantially limiting the use of the prop24 erty.

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

26 provide that any administrative appeal of an action
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1 described in paragraph (1) shall be heard and de2 cided by an official other than the official who took

3 the action, and shall be conducted at a location

4 which is in the vicinity of the parcel of property in5 volved in the action.’’.

6 SEC. 8. COMPENSATION FOR TAKING OF PRIVATE PROP7 ERTY.

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

9 a consequence of a final qualified agency action of an

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

11 market value, or the economically viable use, of the af12 fected portion of the property, as determined by a quali13 fied appraisal expert, is entitled to receive compensation

14 in accordance with this section.

15 (b) DEADLINE.—Within 90 days after receipt of a

16 final decision of an agency head that deprives a private

17 property owner of fair market value or viable use of prop18 erty for which compensation is required under subsection

19 (a), the private property owner may submit in writing a

20 request to the agency head for compensation in accordance

21 with subsection (c).

22 (c) AGENCY HEAD’S OFFER.—The agency head,

23 within 180 days after the receipt of a request for com24 pensation, shall stay the decision and shall provide to the

25 private property owner—
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1 (1) an offer to purchase the affected property

2 of the private property owner at a fair market value

3 assuming no use restrictions under the Acts; and

4 (2) an offer to compensate the private property

5 owner for the difference between the fair market

6 value of the property without those restrictions and

7 the fair market value of the property with those re8 strictions.

9 (d) PRIVATE PROPERTY OWNER’S RESPONSE.—A

10 private property owner shall have 60 days after the date

11 of receipt of the agency head’s offers under subsection (c)

12 (1) and (2) to accept one of the offers or to reject both

13 offers. If the private property owner rejects both offers,

14 the private property owner may submit the matter for ar15 bitration to an arbitrator appointed by the agency head

16 from a list of arbitrators submitted to the agency head

17 by the American Arbitration Association. The arbitration

18 shall be conducted in accordance with the real estate valu19 ation arbitration rules of that association. For purposes

20 of this section, an arbitration is binding on the agency

21 head and a private property owner as to the amount, if

22 any, of compensation owed to the private property owner

23 and whether for purposes of this section the private prop24 erty owner has been deprived of fair market value or viable
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1 use of property for which compensation is required under

2 subsection (a).

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

4 agency head that deprives a private property owner of

5 property as described in subsection (a), is deemed, at the

6 option of the private property owner to be a taking under

7 the Constitution of the United States and a judgment

8 against the United States if the private property owner—

9 (1) accepts the agency head’s offer under sub10 section (c); or

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

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

13 property owner any compensation required under the

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

15 the private property owner in accordance with subsection

16 (d), or under a decision of an arbiter under that sub17 section, by not later than 60 days after the date of the

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

19 respectively.

20 (g) FORM OF PAYMENT.—Payment under this sec21 tion, as that form is agreed to by the agency head and

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

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

24 market value of the property on the day before the
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1 date of the final qualified agency action with respect

2 to which the property or interest is acquired;

3 (2) a payment of an amount equal to the reduc4 tion in value; or

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

6 real property having a fair market value equal to

7 that amount.

8 (h) OTHER RIGHTS PRESERVED.—This section does

9 not preempt, alter, or limit the availability of any remedy

10 for the taking of property or an interest in property that

11 is available under the Constitution or any other law.

12 (i) FINAL JUDGMENTS.—When a private property

13 owner unsuccessfully seeks compensation under this sec14 tion and thereafter files a claim for compensation under

15 the fifth amendment to the Constitution and is successful

16 in obtaining a final judgment ordering compensation from

17 the claims court for that claim, the agency head making

18 the final agency decision resulting in the taking shall reim19 burse the judgment fund for the amount of the judgment

20 against the United States from funds appropriated to the

21 agency for the 2 fiscal years following payment.

22 SEC. 9. DEFINITIONS.

23 For the purpose of this Act the following definitions

24 apply:
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1 (1) ‘‘The Acts’’ means the Endangered Species

2 Act of 1973 (16 U.S.C. 1531 et seq.) and the sec3 tion 404 of the Federal Water Pollution Control Act

4 (33 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

12 other than an officer, employee, agent, department,

13 or instrumentality 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, or a State,

20 municipality, or subdivision of a State) that—

21 (A) owns property referred to in paragraph

22 (5) (A) or (B); or

23 (B) holds property referred to in para24 graph (5)(C).

25 (5) ‘‘Property’’ means—
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1 (A) land;

2 (B) any interest in land; and

3 (C) any proprietary water right.

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—

7 (A) under section 404 of the Federal

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

9 or

10 (B) under the Endangered Species Act of

11 1973 (16 U.S.C. 1531 et seq.).

12 SEC. 10. PRIVATE PROPERTY OWNER PARTICIPATION IN

13 COOPERATIVE AGREEMENTS.

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

15 U.S.C. 1535) is amended by adding at the end the follow16 ing new subsection:

17 ‘‘(j) Notwithstanding any other provision of this sec18 tion, when the Secretary enters into a management agree19 ment under subsection (b) with any non-Federal person

20 that establishes restrictions on the use of property, the

21 Secretary shall notify all private property owners or les22 sees of the property that is subject to the management

23 agreement and shall provide an opportunity for each pri24 vate property owner or lessee to participate in the manage25 ment agreement.’’.
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