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Union Calendar No. 588

106TH CONGRESS

2D SESSION H. R. 1142

[Report No. 106–1011]

To ensure that landowners receive treatment equal to that provided to the

Federal Government when property must be used.

IN THE HOUSE OF REPRESENTATIVES

MARCH 17, 1999

Mr. YOUNG of Alaska (for himself, Mr. TAUZIN, Mr. POMBO, Mr. PETERSON

of Pennsylvania, Mr. DOOLITTLE, Mrs. CHENOWETH-HAGE, Mr. RADANOVICH, Mr. CANNON, Mr. SHADEGG, Mr. SCHAFFER, Mr. WALDEN of Oregon, Mr. HASTINGS of Washington, Mr. SIMPSON, Mr. HANSEN, Mr.

MCKEON, Mr. HERGER, Mr. HILL of Montana, Mr. GALLEGLY, Mr.

DELAY, Mr. THOMAS, Mr. BAKER, Mr. SKEEN, Mr. THORNBERRY, Mrs.

CUBIN, Mr. CALVERT, and Mr. BONILLA) introduced the following bill;

which was referred to the Committee on Resources

OCTOBER 26, 2000

Additional sponsors: Mr. GIBBONS, Mr. HAYWORTH, Mr. STUMP, Mr. SHOWS,

Ms. DANNER, Mr. EHRLICH, Mr. ENGLISH, Mrs. MYRICK, Mr. DICKEY,

Mrs. BONO, Mr. BARRETT of Nebraska, Mr. METCALF, Mr.

NETHERCUTT, Mr. SESSIONS, Mr. DUNCAN, Mr. PICKETT, Mrs. EMERSON, Mr. TAYLOR of North Carolina, Mr. DEMINT, Mr. CUNNINGHAM,

Mr. TANCREDO, Mr. BALLENGER, Mr. LUCAS of Oklahoma, Mr. GARY

MILLER of California, Mr. HUNTER, Mr. HAYES, Mr. MCINNIS, Mr.

SOUDER, Mr. PACKARD, Mr. SWEENEY, Mr. CHAMBLISS, Mr. KNOLLENBERG, Mr. PICKERING, Mr. CALLAHAN, Mr. GOODLING, Mr. WATKINS,

Mr. BRADY of Texas, and Mr. BUYER

OCTOBER 26, 2000

Committed to the Committee of the Whole House on the State of the Union

and ordered to be printed
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A BILL

To ensure that landowners receive treatment equal to that

provided to the Federal Government when property must

be used.

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 ‘‘Landowners Equal

5 Treatment Act of 1999’’.

6 SEC. 2. FINDINGS AND PURPOSE.

7 (a) FINDINGS.—The Congress finds and declares the

8 following:

9 (1) The Secretary of the Interior, through the

10 United States Fish and Wildlife Service, recently de11 manded and received compensation for the loss of

12 use of federally owned property resulting from con13 structive use of the property for other public pur14 poses, in an amount of approximately $26,000,000.

15 (2) The Secretary of Transportation has pro16 mulgated a regulation allowing for compensation of

17 Federal agencies for the lost use of agency property

18 for public purposes, through a definition of the term

19 ‘‘constructive use’’ that includes off-site impacts of

20 Federal agency actions on federally owned property.
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1 (3) The Federal Government enjoys no right

2 under the Constitution to compensation for use of

3 Federal agency property for other public purposes,

4 while the rights of private persons to be com5 pensated for the taking of their property by the Gov6 ernment for a public purpose is a fundamental right

7 protected by the Fifth and Fourteenth Amendments

8 to the Constitution.

9 (4) Private property owners should be com10 pensated in a manner that is at least as equitable

11 as the compensation afforded to Federal agencies

12 when their property is used or constructively used

13 for other public purposes.

14 (5) Fair and equitable treatment of private

15 property owners will increase the willingness of pri16 vate property owners to provide habitat for wildlife

17 and plants protected under the Endangered Species

18 Act of 1973 (16 U.S.C. 1531 et seq.).

19 (b) PURPOSE.—The purpose of this Act is to increase

20 the efforts of private property owners to protect and re21 store habitat for wildlife, by ensuring that their constitu22 tional and legal property rights will be honored, respected,

23 and protected in the implementation of the Endangered

24 Species Act of 1973.
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1 SEC. 3. MINIMIZING IMPACTS ON PRIVATE PROPERTY.

2 The Endangered Species Act of 1973 (16 U.S.C.

3 1531 et seq.) is amended by adding at the end the fol4 lowing new section:

5 ‘‘MINIMIZING IMPACTS ON PRIVATE PROPERTY

6 ‘‘SEC. 19. (a) IN GENERAL.—In implementing this

7 Act, the head of an agency shall make every possible effort

8 to avoid, minimize, or mitigate impacts on non-Federal

9 property that result in Federal use of the property as a

10 direct result of the action of the agency head under this

11 Act or in furtherance of the purposes of this Act. An agen12 cy shall not take action that results in a Federal use of

13 non-Federal property under this Act unless the agency—

14 ‘‘(1) obtains the written permission of its

15 owner;

16 ‘‘(2) negotiates a voluntary agreement author17 izing that use; or

18 ‘‘(3) pays compensation in accordance with this

19 section.

20 ‘‘(b) COMPENSATION FOR FEDERAL USE OF NON21 FEDERAL PROPERTY.—An agency that takes action under

22 this Act or in furtherance of the purposes of this Act that

23 results in a Federal use of non-Federal property or any

24 portion of non-Federal property without the written con25 sent of the owner of the property shall compensate the

26 owner for the fair market value of the Federal use of the
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1 property or portion. Compensation paid shall reflect the

2 duration of the Federal use as necessary to achieve the

3 purposes of this Act.

4 ‘‘(c) REQUEST OF OWNER.—An owner of non-Fed5 eral property seeking compensation under this section

6 shall make a written request for compensation to the agen7 cy implementing the agency action resulting in the Federal

8 use of property. The request shall, at a minimum, identify

9 the affected portion of the property, the nature of the Fed10 eral use of non-Federal property for which the compensa11 tion is sought, and the amount of compensation sought.

12 ‘‘(d) NEGOTIATIONS.—The agency may negotiate

13 with the owner to reach agreement on the amount of the

14 compensation under this section, the terms of any agree15 ment for payment, and the terms of any Federal use of

16 non-Federal property for which compensation is paid. If

17 such an agreement is reached, the agency shall within 6

18 months pay the owner the amount agreed upon. An agree19 ment under this section may include a transfer of title or

20 an agreement to limit the period of time of the Federal

21 use of non-Federal property.

22 ‘‘(e) CHOICE OF REMEDIES.—If, not later than 180

23 days after the written request is made, the parties have

24 not reached an agreement on compensation, the owner of
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1 the property may elect binding arbitration or seek com2 pensation due under this section in a civil action.

3 ‘‘(f) ARBITRATION.—The procedures that govern the

4 arbitration shall, as nearly as practicable, be those estab5 lished under title 9, United States Code, for arbitration

6 proceedings to which that title applies. An award made

7 in such arbitration shall include a reasonable attorney’s

8 fee and other arbitration costs, including appraisal fees.

9 The agency shall promptly pay any award made to the

10 owner.

11 ‘‘(g) CIVIL ACTIONS.—A civil action to enforce this

12 section may be filed under section 11(g). An owner who

13 prevails in a civil action against the agency pursuant to

14 this section shall be entitled to, and the agency shall be

15 liable for, the amount of compensation awarded plus rea16 sonable attorney’s fees and other litigation costs, including

17 appraisal fees. The court shall award interest on the

18 amount of any compensation from the time of the Federal

19 use of non-Federal property.

20 ‘‘(h) SOURCE OF PAYMENTS.—Any payment made

21 under this section to an owner of property and any judg22 ment obtained by an owner of property in a civil action

23 under this section shall, notwithstanding any other provi24 sion of law, be made from the annual appropriation of the

25 agency that took the agency action giving rise to the pay-
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1 ment or civil action. If the agency action resulted from

2 a requirement imposed by another agency, then the agency

3 making the payment or satisfying the judgment may seek

4 partial or complete reimbursement from the appropriated

5 funds of the other agency. For this purpose, the head of

6 the agency concerned may transfer or reprogram any ap7 propriated funds available to the agency. If insufficient

8 funds exist for the payment or to satisfy the judgment,

9 it shall be the duty of the head of the agency to seek the

10 appropriation of such funds for the next fiscal year.

11 ‘‘(i) AVAILABILITY OF APPROPRIATIONS.—Notwith12 standing any other provision of law, any obligation of the

13 United States to make any payment under this section

14 shall be subject to the availability of appropriations.

15 ‘‘(j) DUTY OF NOTICE TO OWNERS.—An agency may

16 not take any action that is a Federal use of non-Federal

17 property unless the agency has given 30 days notice to

18 each owner of the property directly affected explaining

19 their rights under this section and either obtaining their

20 permission for the Federal use or providing the procedures

21 for obtaining any compensation that may be available

22 under this section.

23 ‘‘(k) RULES OF CONSTRUCTION.—The following rules

24 of construction shall apply to this Act:
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1 ‘‘(1) OTHER RIGHTS PRESERVED.—Nothing in

2 this Act shall be construed to limit any right to com3 pensation that exists under the Constitution or

4 under other laws.

5 ‘‘(2) EXTENT OF FEDERAL AUTHORITY.—Pay6 ment of compensation under this section (other than

7 when property is bought by the Federal Government

8 at the option of the owner) shall not confer any

9 rights on the Federal Government other than the

10 Federal use of non-Federal property agreed to so

11 that the agency action may achieve the species con12 servation purposes of this Act.

13 ‘‘(l) DEFINITIONS.—For the purposes of this section:

14 ‘‘(1) AGENCY.—The term ‘agency’ has the

15 meaning given that term in section 551 of title 5,

16 United States Code.

17 ‘‘(2) FEDERAL USE.—(A) The term ‘Federal

18 use’ means—

19 ‘‘(i) any action under this Act to—

20 ‘‘(I) permanently incorporate non21 Federal property into a Federal facility;

22 ‘‘(II) place non-Federal property

23 under the control of the Secretary; or

24 ‘‘(III) temporarily occupy non-Federal

25 property in a manner that is adverse to the
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1 constitutional right of the owner of the

2 property against taking of the property by

3 the Federal Government; and

4 ‘‘(ii) any constructive use of non-Federal

5 property.

6 ‘‘(B) In this paragraph the term ‘constructive

7 use’ means any action described in subparagraph

8 (C) taken under this Act that results in—

9 ‘‘(i) substantial diminution in the normal

10 or reasonably expected uses of non-Federal

11 property;

12 ‘‘(ii) a reduction in the fair market value

13 of non-Federal property of 25 percent or more;

14 or

15 ‘‘(iii) in the case of the right to receive

16 water, any diminution in the quantity of water

17 received or available for use.

18 ‘‘(C) The actions referred to in subparagraph

19 (B) are the following:

20 ‘‘(i) The imposition or enforcement of a

21 prohibition of use of non-Federal property the

22 purpose of which is to provide or retain habitat

23 for any species of wildlife or plant determined

24 to be an endangered species or threatened spe25 cies.
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1 ‘‘(ii) A designation of non-Federal property

2 as critical habitat under this Act.

3 ‘‘(iii) The denial of a permit under section

4 10 that results in the loss of the ability to use

5 non-Federal property in order to provide habi6 tat for wildlife or plants.

7 ‘‘(iv) An agency action pursuant to a rea8 sonable and prudent alternative suggested by

9 the Secretary under section 7, that would cause

10 an agency to restrict the use of non-Federal

11 property.

12 ‘‘(v) The imposition by any governmental

13 entity of a limitation or restriction on an other14 wise permissible use of non-Federal property by

15 the owner of the property, as a condition of a

16 Federal agency providing any land, money, per17 mit, or other benefit to the governmental entity,

18 if imposition of the limitation or restriction by

19 the agency directly would constitute a Federal

20 use of non-Federal property under the other

21 provisions of this paragraph, unless the govern22 mental entity has some other legal basis for im23 posing the limitation or restriction.

24 ‘‘(3) FAIR MARKET VALUE.—The term ‘fair

25 market value’ means the most probable price at
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1 which property or a right to use property would

2 change hands, in a competitive and open market

3 under all conditions requisite to fair sale, between a

4 willing buyer and willing seller, neither being under

5 any compulsion to buy or sell and both having rea6 sonable knowledge of relevant facts, and without re7 gard to the presence of any species protected under

8 this Act. With respect to a right to use property,

9 fair market value shall be determined on or imme10 diately before the exercise of the right.

11 ‘‘(4) LAW OF THE STATE.—The term ‘law of

12 the State’ includes the law of a political subdivision

13 of a State.

14 ‘‘(5) NON-FEDERAL PROPERTY.—The term

15 ‘non-Federal property’ means property which is

16 owned by a person other than any Federal entity of

17 government.

18 ‘‘(6) PROPERTY.—The term ‘property’ means

19 land, an interest in land, the right to use or receive

20 water, and any personal property, as defined under

21 the law of the State.’’.
Union Calendar No. 588

106TH CONGRESS

2D SESSION H. R. 1142

[Report No. 106–1011]

A BILL

To ensure that landowners receive treatment equal

to that provided to the Federal Government whenproperty must be used.

OCTOBER 26, 2000

Committed to the Committee of the Whole House on the

State of the Union and ordered to be printed