II

103D CONGRESS

2D SESSION S. 2410

To provide appropriate protection for the Constitutional guarantee of private

property rights, and for other purposes.

IN THE SENATE OF THE UNITED STATES

AUGUST 19 (legislative day, AUGUST 18), 1994

Mr. GRAMM (for himself, Mr. SHELBY, Mr. GRAIG, Mr. BURNS, and Mr.

KEMPTHORNE) introduced the following bill; which was read twice and

referred to the Committee on Governmental Affairs

A BILL

To provide appropriate protection for the Constitutional

guarantee of private property rights, and for other purposes.

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 Rights Restoration Act’’.

6 SEC. 2. PRIVATE PROPERTY RIGHTS RESTORATION.

7 (a) CAUSE OF ACTION.—(1) The owner of any real

8 property shall have a cause of action against the United

9 States if—
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1 (A) the application of a statute, regulation,

2 rule, guideline, or policy of the United States re3 stricts, limits, or otherwise infringes a right to real

4 property that would otherwise exist in the absence of

5 such application; and

6 (B) such application described under subpara7 graph (A) would result in a discrete and non-neg8 ligible reduction in the fair market value of the af9 fected portion of real property.

10 (2) Notwithstanding paragraph (1)(B), a prima facie

11 case against the United States shall be established if the

12 Government action described under paragraph (1)(A) re13 sults in a temporary or permanent diminution of fair mar14 ket value of the affected portion of real property of the

15 lesser of—

16 (A) 25 percent or more; or

17 (B) $10,000 or more.

18 (b) JURISDICTION.—An action under this Act shall

19 be filed in the United States Court of Federal Claims

20 which shall have exclusive jurisdiction.

21 (c) RECOVERY.—In any action filed under this Act,

22 the owner may elect to recover—

23 (1) a sum equal to the diminution in the fair

24 market value of the portion of the property affected

25 by the application of a statute, regulation, rule,
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1 guildeline, or policy described under subsection

2 (a)(1)(A) and retain title; or

3 (2) the fair market value of the affected portion

4 of the regulated property prior to the government

5 action and relinquish title to the portion of property

6 regulated.

7 (d) PUBLIC NUISANCE EXCEPTION.—(1) No com8 pensation shall be required by virtue of this Act if the own9 er’s use or proposed use of the property amounts to a pub10 lic nuisance as commonly understood and defined by back11 ground principles of nuisance and property law, as under12 stood under the law of the State within which the property

13 is situated.

14 (2) To bar an award of damages under this Act, the

15 United States shall have the burden of proof to establish

16 that the use or proposed use of the property is a public

17 nuisance as defined under paragraph (1) of this sub18 section.

19 SEC. 3. APPLICATION; STATUTE OF LIMITATIONS.

20 (a) APPLICATION.—This Act shall apply to the appli21 cation of any statute, regulation, rule, guideline, or policy

22 to real property, if such application occurred or occurs on

23 or after January 1, 1994.

24 (b) STATUTE OF LIMITATIONS.—The statute of limi25 tations for actions brought under this Act shall be six
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1 years from the application of any statute, regulation, rule,

2 guideline, or policy of the United States to any affected

3 parcel of property under this Act.

4 SEC. 4. AWARD OF COSTS; LITIGATION COSTS.

5 (a) IN GENERAL.—The court, in issuing any final

6 order in any action brought under this Act, shall award

7 costs of litigation (including reasonable attorney and ex8 pert witness) to any prevailing plaintiff.

9 (b) PAYMENT.—All awards or judgments for plain10 tiff, including recovery for damages and costs of litigation,

11 shall be paid out of funds of the agency or agencies re12 sponsible for issuing the statute, regulation, rule, guideline

13 or policy affecting the reduction in the fair market value

14 of the affected portion of property. Payments shall not be

15 made from a judgment fund.

16 SEC. 5. CONSTITUTIONAL OR STATUTORY RIGHTS NOT RE17 STRICTED.

18 Nothing in this Act shall restrict any remedy or any

19 right which any person (or class of persons) may have

20 under any provision of the United States Constitution or

21 any other law.

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