II

106TH CONGRESS

1ST SESSION S. 246

To protect private property rights guaranteed by the fifth amendment to

the Constitution by requiring Federal agencies to prepare private property taking impact analyses and by allowing expanded access to Federal

courts.

IN THE SENATE OF THE UNITED STATES

JANUARY 19, 1999

Mr. HAGEL introduced the following bill; which was read twice and referred

to the Committee on Governmental Affairs

A BILL

To protect private property rights guaranteed by the fifth

amendment to the Constitution by requiring Federal

agencies to prepare private property taking impact analyses and by allowing expanded access to Federal courts.

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 Act of 1999’’.

6 SEC. 2. FINDINGS.

7 The Congress finds that—
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1 (1) the ownership of private property plays an

2 important role in the economic and social well-being

3 of the Nation;

4 (2) the protection of private property from a

5 taking by the Government without just compensation

6 is an integral protection for private citizens incor7 porated into the United States Constitution by the

8 fifth amendment and made applicable to the States

9 by the fourteenth amendment;

10 (3) Federal agency actions that restrict the use

11 of private property and result in a significant dimi12 nution in value of such property constitute a taking

13 of that property and should be properly com14 pensated;

15 (4) Federal agencies should consider the impact

16 of agency actions, including regulations, on the use

17 and ownership of private property; and

18 (5) owners of private property that is taken by

19 a Federal agency action should be permitted to seek

20 relief in Federal district court.

21 SEC. 3. STATEMENT OF POLICY.

22 The policy of the Federal Government is to protect

23 the health, safety, and general welfare of the public in a

24 manner that, to the extent practicable, avoids takings of

25 private property.
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1 SEC. 4. DEFINITIONS.

2 For purposes of this Act—

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

4 agency, independent agency, or instrumentality of

5 the United States, including any military depart6 ment, Government corporation, Government-con7 trolled corporation, or other establishment in the ex8 ecutive branch of the United States Government;

9 (2) the term ‘‘agency action’’ means any action,

10 inaction, or decision taken by an agency and in11 cludes such an action, inaction, or decision taken by,

12 or pursuant to—

13 (A) a statute, rule, regulation, order,

14 guideline, or policy; or

15 (B) the issuance, denial, or suspension of

16 any permit, license, or authorization;

17 (3) the term ‘‘owner’’ means the person with

18 title, possession, or other property rights in property

19 affected by any taking of such property; and

20 (4) the term ‘‘taking of private property’’

21 means any action whereby private property is taken

22 in such a way as to require compensation under the

23 fifth amendment to the United States Constitution.

24 SEC. 5. REQUIREMENT FOR PRIVATE PROPERTY TAKING

25 IMPACT ANALYSIS.

26 (a) IN GENERAL.—To the fullest extent possible—
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1 (1) the policies, regulations, and public laws of

2 the United States shall be interpreted and adminis3 tered in accordance with the policies under this Act;

4 and

5 (2) subject to subsection (b), each agency shall

6 complete a private property taking impact analysis

7 before taking any agency action (including the pro8 mulgation of a regulation) which is likely to result

9 in a taking of private property.

10 (b) NONAPPLICATION.—Subsection (a)(2) shall not

11 apply to—

12 (1) an action in which the power of eminent do13 main is formally exercised;

14 (2) an action taken—

15 (A) with respect to property held in trust

16 by the United States; or

17 (B) in preparation for, or in connection

18 with, treaty negotiations with foreign nations;

19 (3) a law enforcement action, including seizure,

20 for a violation of law, of property for forfeiture or

21 as evidence in a criminal proceeding;

22 (4) a communication between an agency and a

23 State or local land-use planning agency concerning

24 a planned or proposed State or local activity that

25 regulates private property, regardless of whether the
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1 communication is initiated by an agency or is under2 taken in response to an invitation by the State or

3 local authority;

4 (5) the placement of a military facility or a

5 military activity involving the use of solely Federal

6 property;

7 (6) any military or foreign affairs function (in8 cluding a procurement function under a military or

9 foreign affairs function), but not including the civil

10 works program of the Army Corps of Engineers; and

11 (7) any case in which there is an immediate

12 threat to health or safety that constitutes an emer13 gency requiring immediate response or the issuance

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

15 United States Code, if the taking impact analysis is

16 completed after the emergency action is carried out

17 or the regulation is published.

18 (c) CONTENT OF ANALYSIS.—A private property tak19 ing impact analysis shall be a written statement that

20 includes—

21 (1) the specific purpose of the agency action;

22 (2) an assessment of the likelihood that a tak23 ing of private property will occur under such agency

24 action;
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1 (3) an evaluation of whether such agency action

2 is likely to require compensation to private property

3 owners;

4 (4) alternatives to the agency action that

5 would—

6 (A) achieve the intended purposes of the

7 agency action; and

8 (B) lessen the likelihood that a taking of

9 private property will occur; and

10 (5) an estimate of the potential liability of the

11 Federal Government if the Government is required

12 to compensate a private property owner as a result

13 of the agency action.

14 (d) SUBMISSION TO OMB.—Each agency shall pro15 vide the analysis required under this section as part of

16 any submission otherwise required to be made to the Of17 fice of Management and Budget relating to an agency ac18 tion.

19 (e) PUBLIC AVAILABILITY OF ANALYSIS.—An agency

20 shall—

21 (1) make each private property taking impact

22 analysis available to the public; and

23 (2) to the greatest extent practicable, transmit

24 a copy of such analysis to the owner and any other
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1 person with a property right or interest in the af2 fected property.

3 SEC. 6. ALTERNATIVES TO TAKING OF PRIVATE PROPERTY.

4 Before taking any final agency action, the agency

5 shall fully consider alternatives described in section

6 5(c)(4) and shall, to the maximum extent practicable, alter

7 the action to avoid or minimize the taking of private prop8 erty.

9 SEC. 7. CIVIL ACTION.

10 (a) STANDING.—If an agency action results in the

11 taking of private property, the owner of such property may

12 obtain appropriate relief in a civil action against the agen13 cy that has caused the taking to occur.

14 (b) JURISDICTION.—Notwithstanding sections 1346

15 or 1491 of title 28, United States Code—

16 (1) a civil action against the agency may be

17 brought in either the United States District Court in

18 which the property at issue is located or in the

19 United States Court of Federal Claims, regardless of

20 the amount in controversy; and

21 (2) if property is located in more than 1 judicial

22 district, the claim for relief may be brought in any

23 district in which any part of the property is located.
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1 SEC. 8. GUIDANCE AND REPORTING REQUIREMENTS.

2 (a) GUIDANCE.—The Attorney General shall provide

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

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

5 Act.

6 (b) REPORTS.—

7 (1) IN GENERAL.—Not later than 1 year after

8 the date of enactment of this Act and at the end of

9 each 1-year period thereafter, each agency shall sub10 mit a report to the Director of the Office of Manage11 ment and Budget and the Attorney General that

12 identifies—

13 (A) each agency action that has resulted in

14 the preparation of a taking impact analysis;

15 (B) the filing of a taking claim; and

16 (C) any award of compensation pursuant

17 to the just compensation clause of the fifth

18 amendment to the Constitution.

19 (2) PUBLICATION OF REPORTS.—The Director

20 of the Office of Management and Budget and the

21 Attorney General shall publish in the Federal Reg22 ister, on an annual basis, a compilation of the re23 ports of all agencies made under this paragraph.

24 SEC. 9. PRESUMPTIONS IN PROCEEDINGS.

25 For the purpose of any agency action or administra26 tive or judicial proceeding, there shall be a rebuttable pre-
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1 sumption that the costs, values, and estimates in any pri2 vate property takings impact analysis shall be outdated

3 and inaccurate, if—

4 (1) such analysis was completed 5 years or

5 more before the date of such action or proceeding;

6 and

7 (2) such costs, values, or estimates have not

8 been modified within the 5-year period preceding the

9 date of such action or proceeding.

10 SEC. 10. RULES OF CONSTRUCTION.

11 Nothing in this Act shall be construed to—

12 (1) limit any right or remedy, constitute a con13 dition precedent or a requirement to exhaust admin14 istrative remedies, or bar any claim of any person

15 relating to such person’s property under any other

16 law, including claims made under this Act, section

17 1346 or 1402 of title 28, United States Code, or

18 chapter 91 of title 28, United States Code; or

19 (2) constitute a conclusive determination of—

20 (A) the value of any property for purposes

21 of an appraisal for the acquisition of property,

22 or for the determination of damages; or

23 (B) any other material issue.
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1 SEC. 11. EFFECTIVE DATE.

2 This Act shall take effect 120 days after the date of

3 enactment of this Act.

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