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[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 1915 Introduced in Senate (IS)]

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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Private Property Owners Bill of 
Rights''.

SEC. 2. FINDINGS AND PURPOSE.

    (a) Findings.--The Congress finds the following:
            (1) Our democracy was founded on principles of ownership, 
        use, and control of private property. These principles are 
        embodied in the fifth amendment to the Constitution prohibiting 
        the taking of private property without the payment of just 
        compensation.
            (2) A number of Federal Environmental programs, 
        specifically the Endangered Species Act of 1973 (16 U.S.C. 1531 
        et seq.) and section 404 of the Federal Water Pollution Control 
        Act (33 U.S.C. 1344) have been implemented by employees, 
        agents, and representatives of the Federal Government in a 
        manner that deprives private property owners of the use and 
        control of their property.
            (3) As new Federal programs are proposed that would limit 
        and restrict the use of private property to provide habitat for 
        plant and animal species, the rights of private property owners 
        must be recognized and respected.
            (4) Private property owners are being forced by Federal 
        policy to resort to extensive, lengthy, and expensive 
        litigation to protect certain basic civil rights guaranteed by 
        the Constitution.
            (5) Since many private property owners do not have the 
        financial resources or the extensive commitment of time to 
        proceed in litigation against the Federal Government, a clear 
        Federal policy is needed to guide and direct Federal agencies 
        with respect to their implementation of environmental laws that 
        directly impact private property.
            (6) While all private property owners should and must abide 
        by current nuisance laws and should not use their property in a 
        manner that harms their neighbors, these laws have 
        traditionally been enacted, implemented, and enforced at the 
        State and local level where they are best able to protect the 
        rights of all private property owners and local citizens.
            (7) While traditional pollution control laws are intended 
        to protect the general public's health and physical welfare, 
        current habitat protection programs are intended to protect the 
        welfare of plant and animal species, while allowing the 
        recreational and esthetic opportunities for the public.
    (b) Purposes.--It is the purpose of this Act to provide a 
consistent Federal policy to encourage, support, and promote the 
private ownership of property and to ensure that the constitutional and 
legal rights of private property owners are protected by the Federal 
Government, its employees, agents and representatives.

SEC. 3. PROTECTION OF PRIVATE PROPERTY RIGHTS.

    (a) In implementing and enforcing the Acts, each agency head shall 
comply with applicable State and tribal government laws, including laws 
relating to private property rights and privacy; and shall administer 
and implement the Acts in a manner that has the least impact on private 
property owners' constitutional and other legal rights.
    (b) Each agency head shall develop and implement rules and 
regulations for ensuring that the constitutional and other legal rights 
of private property owners are protected when the agency head makes, or 
participates with other agencies in the making of, any final decision 
that restricts the use of private property.

SEC. 4. PROPERTY OWNER CONSENT FOR ENTRY.

    (a) An agency head may not enter privately-owned property to 
collect information regarding the property, unless the private property 
owner has--
            (1) consented in writing to that entry;
            (2) after providing that consent, been provided notice of 
        that entry; and
            (3) been notified that any raw data collected from the 
        property must be made available at no cost, if requested by the 
        private property owner.
    (b) Subsection (a) does not prohibit entry onto property for the 
purpose of obtaining consent or providing notice required under 
subsection (a).

SEC. 5. RIGHT TO REVIEW AND DISPUTE DATA COLLECTED FROM PRIVATE 
              PROPERTY.

    An agency head may not use data that is collected on privately-
owned property to implement or enforce any of the Acts, unless--
            (1) the agency head has provided to the private property 
        owner--
                    (A) access to the information;
                    (B) a detailed description of the manner in which 
                the information was collected; and
                    (C) an opportunity to dispute the accuracy of the 
                information; and
            (2) the agency head has determined that the information is 
        accurate, if the private property owner disputes the 
        information pursuant to subparagraph (C).

SEC. 6. RIGHT TO AN ADMINISTRATIVE APPEAL OF WETLANDS DECISIONS.

    Section 404 of the Federal Water Pollution Control Act (33 U.S.C. 
1344) is amended by adding at the end the following new subsection:
    ``(u) Administrative Appeals.--
            ``(1) The Secretary or Administrator shall, after notice 
        and opportunity for public comment, issue rules to establish 
        procedures to allow private property owners or their authorized 
        representatives an opportunity for an administrative appeal of 
        the following actions under this section:
                    ``(A) A determination of regulatory jurisdiction 
                over a particular parcel of property.
                    ``(B) The denial of a permit.
                    ``(C) The terms and conditions of a permit.
                    ``(D) The imposition of an administrative penalty.
                    ``(E) The imposition of an order requiring the 
                private property owner to restore or otherwise alter 
                the property.
            ``(2) Rules issued under paragraph (1) shall provide that 
        any administrative appeal of an action described in paragraph 
        (1) shall be heard and decided by an official other than the 
        official who took the action, and shall be conducted at a 
        location which is in the vicinity of the property involved in 
        the action.''.

SEC. 7. RIGHT TO ADMINISTRATIVE APPEAL UNDER THE ENDANGERED SPECIES ACT 
              OF 1973.

    Section 11 of the Endangered Species Act of 1973 (16 U.S.C. 1540) 
is amended by adding at the end the following new subsection:
    ``(i) Administrative Appeals.--
            ``(1) The Secretary shall, after notice and opportunity for 
        public comment, issue rules to establish procedures to allow 
        private property owners or their authorized representatives an 
        opportunity for an administrative appeal of the following 
        actions under this section:
                    ``(A) A determination that a particular parcel of 
                property is critical habitat of a listed species.
                    ``(B) The denial of a permit for an incidental 
                take.
                    ``(C) The terms and conditions of an incidental 
                take permit.
                    ``(D) The imposition of an administrative penalty.
                    ``(E) The imposition of an order prohibiting or 
                substantially limiting the use of the property.
            ``(2) Rules issued under paragraph (1) shall provide that 
        any administrative appeal of an action described in paragraph 
        (1) shall be heard and decided by an official other than the 
        official who took the action, and shall be conducted at a 
        location which is in the vicinity of the parcel of property 
        involved in the action.''.

SEC. 8. COMPENSATION FOR TAKING OF PRIVATE PROPERTY.

    (a) Eligibility.--A private property owner that, as a consequence 
of a final qualified agency action of an agency head, is deprived of 50 
percent or more of the fair market value, or the economically viable 
use, of the affected portion of the property, as determined by a 
qualified appraisal expert, is entitled to receive compensation in 
accordance with this section.
    (b) Deadline.--Within 90 days after receipt of a final decision of 
an agency head that deprives a private property owner of fair market 
value or viable use of property for which compensation is required 
under subsection (a), the private property owner may submit in writing 
a request to the agency head for compensation in accordance with 
subsection (c).
    (c) Agency Head's Offer.--The agency head, within 180 days after 
the receipt of a request for compensation, shall stay the decision and 
shall provide to the private property owner--
            (1) an offer to purchase the affected property of the 
        private property owner at a fair market value assuming no use 
        restrictions under the Acts; and
            (2) an offer to compensate the private property owner for 
        the difference between the fair market value of the property 
        without those restrictions and the fair market value of the 
        property with those restrictions.
    (d) Private Property Owner's Response.--A private property owner 
shall have 60 days after the date of receipt of the agency head's 
offers under subsection (c) (1) and (2) to accept one of the offers or 
to reject both offers. If the private property owner rejects both 
offers, the private property owner may submit the matter for 
arbitration to an arbitrator appointed by the agency head from a list 
of arbitrators submitted to the agency head by the American Arbitration 
Association. The arbitration shall be conducted in accordance with the 
real estate valuation arbitration rules of that association. For 
purposes of this section, an arbitration is binding on the agency head 
and a private property owner as to the amount, if any, of compensation 
owed to the private property owner and whether for purposes of this 
section the private property owner has been deprived of fair market 
value or viable use of property for which compensation is required 
under subsection (a).
    (e) Judgment.--A qualified agency action of an agency head that 
deprives a private property owner of property as described in 
subsection (a), is deemed, at the option of the private property owner 
to be a taking under the Constitution of the United States and a 
judgment against the United States if the private property owner--
            (1) accepts the agency head's offer under subsection (c); 
        or
            (2) submits to arbitration under subsection (d).
    (f) Payment.--An agency head shall pay a private property owner any 
compensation required under the terms of an offer of the agency head 
that is accepted by the private property owner in accordance with 
subsection (d), or under a decision of an arbiter under that 
subsection, by not later than 60 days after the date of the acceptance 
or the date of the issuance of the decision, respectively.
    (g) Form of Payment.--Payment under this section, as that form is 
agreed to by the agency head and the private property owner, may be in 
the form of--
            (1) payment of an amount equal to the fair market value of 
        the property on the day before the date of the final qualified 
        agency action with respect to which the property or interest is 
        acquired;
            (2) a payment of an amount equal to the reduction in value; 
        or
            (3) conveyance of real property or an interest in real 
        property having a fair market value equal to that amount.
    (h) Other Rights Preserved.--This section does not preempt, alter, 
or limit the availability of any remedy for the taking of property or 
an interest in property that is available under the Constitution or any 
other law.
    (i) Final Judgments.--When a private property owner unsuccessfully 
seeks compensation under this section and thereafter files a claim for 
compensation under the fifth amendment to the Constitution and is 
successful in obtaining a final judgment ordering compensation from the 
claims court for that claim, the agency head making the final agency 
decision resulting in the taking shall reimburse the judgment fund for 
the amount of the judgment against the United States from funds 
appropriated to the agency for the 2 fiscal years following payment.

SEC. 9. DEFINITIONS.

    For the purpose of this Act the following definitions apply:
            (1) ``The Acts'' means the Endangered Species Act of 1973 
        (16 U.S.C. 1531 et seq.) and the section 404 of the Federal 
        Water Pollution Control Act (33 U.S.C. 1344).
            (2) ``Agency head'' means the Secretary or Administrator 
        with jurisdiction or authority to take a final agency action 
        under the Endangered Species Act of 1973 (16 U.S.C. 1531 et 
        seq.) or section 404 of the Federal Water Pollution Control Act 
        (33 U.S.C. 1344).
            (3) ``Non-Federal person'' means a person other than an 
        officer, employee, agent, department, or instrumentality of--
                    (A) the Federal Government; or
                    (B) a foreign government.
            (4) ``Private property owner'' means a non-Federal person 
        (other than an officer, employee, agent, department, or 
        instrumentality of a State, municipality, or political 
        subdivision of a State, or a State, municipality, or 
        subdivision of a State) that--
                    (A) owns property referred to in paragraph (5) (A) 
                or (B); or
                    (B) holds property referred to in paragraph (5)(C).
            (5) ``Property'' means--
                    (A) land;
                    (B) any interest in land; and
                    (C) any proprietary water right.
            (6) ``Qualified agency action'' means an agency action (as 
        that term is defined in section 551(13) of title 5, United 
        States Code) that is--
                    (A) under section 404 of the Federal Water 
                Pollution Control Act (33 U.S.C. 1344); or
                    (B) under the Endangered Species Act of 1973 (16 
                U.S.C. 1531 et seq.).

SEC. 10. PRIVATE PROPERTY OWNER PARTICIPATION IN COOPERATIVE 
              AGREEMENTS.

    Section 6 of the Endangered Species Act of 1973 (16 U.S.C. 1535) is 
amended by adding at the end the following new subsection:
    ``(j) Notwithstanding any other provision of this section, when the 
Secretary enters into a management agreement under subsection (b) with 
any non-Federal person that establishes restrictions on the use of 
property, the Secretary shall notify all private property owners or 
lessees of the property that is subject to the management agreement and 
shall provide an opportunity for each private property owner or lessee 
to participate in the management agreement.''.

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