I

104TH CONGRESS

1ST SESSION H. R. 790

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

owners.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 1, 1995

Mr. TAUZIN (for himself, Mr. FIELDS of Texas, Mr. BACHUS, Mr. BAKER of

Louisiana, Mr. BALLENGER, Mr. BARCIA, Mr. BARRETT of Nebraska,

Mr. BONILLA, Mr. BONO, Mr. BREWSTER, Mr. BUNNING of Kentucky,

Mr. CALLAHAN, Mr. CALVERT, Mr. COBLE, Mr. COBURN, Mr. COMBEST,

Mr. CONDIT, Mr. COX of California, Mr. CUNNINGHAM, Ms. DANNER,

Mr. DICKEY, Mr. DOOLEY, Mr. DOOLITTLE, Mr. DORNAN, Ms. DUNN of

Washington, Mr. EDWARDS, Mr. EMERSON, Mr. GEKAS, Mr. PETE

GEREN of Texas, Mr. GILLMOR, Mr. GOODLATTE, Mr. HALL of Texas,

Mr. HANCOCK, Mr. HASTERT, Mr. HASTINGS of Washington, Mr. HAYES,

Mr. HEFLEY, Mr. HERGER, Mr. HOEKSTRA, Mr. HOKE, Mr. HOLDEN,

Mr. HOUGHTON, Mr. HUNTER, Mr. HUTCHINSON, Mr. INGLIS of South

Carolina, Mr. ISTOOK, Mr. SAM JOHNSON of Texas, Mr. KING, Mr.

KNOLLENBERG, Mrs. LINCOLN, Mr. LAUGHLIN, Mr. LEWIS of California,

Mr. LEWIS of Kentucky, Mr. LIGHTFOOT, Mr. LIVINGSTON, Mr. MCCOLLUM, Mr. MCCRERY, Mr. MCHUGH, Mr. MCKEON, Mr. MILLER of Florida, Mr. MONTGOMERY, Mr. MOORHEAD, Mr. ORTIZ, Mr. OXLEY, Mr.

PACKARD, Mr. PARKER, Mr. PAXON, Mr. PICKETT, Mr. POMBO, Mr.

ROBERTS, Mr. ROHRABACHER, Mr. ROYCE, Mr. SENSENBRENNER, Mr.

SKEEN, Mr. SKELTON, Mr. SOLOMON, Mr. SOUDER, Mr. STENHOLM, Mr.

STUMP, Mr. TALENT, Mr. TAYLOR of North Carolina, and Mr. WILSON)

introduced the following bill; which was referred to the Committee on the

Judiciary and, in addition, to the Committees on Resources and Transportation and Infrastructure, for a period to be subsequently determined

by the Speaker, in each case for consideration of such provisions as fall

within the jurisdiction of the committee concerned
2

•HR 790 IH

A BILL

To require certain Federal agencies to protect the rights

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 Own5 ers 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.

10 These principles are embodied in the fifth amend11 ment to the Constitution prohibiting the taking of

12 private property without the payment of just com13 pensation.

14 (2) A number of Federal environmental pro15 grams, specifically the Endangered Species Act of

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

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

18 1344) have been implemented by employees, agents,

19 and representatives of the Federal Government in a

20 manner that deprives private property owners of the

21 use and control of their property.
3

•HR 790 IH

1 (3) As new Federal programs are proposed that

2 would limit and restrict the use of private property

3 to provide habitat for plant and animal species, the

4 rights of private property owners must be recognized

5 and respected.

6 (4) Private property owners are being forced by

7 Federal policy to resort to extensive, lengthy, and

8 expensive litigation to protect certain basic civil

9 rights guaranteed by the Constitution.

10 (5) Since many private property owners do not

11 have the financial resources or the extensive commit12 ment of time to proceed in litigation against the

13 Federal Government, a clear Federal policy is need14 ed to guide and direct Federal agencies with respect

15 to their implementation of environmental laws that

16 directly impact private property.

17 (6) While all private property owners should

18 and must abide by current nuisance laws and should

19 not use their property in a manner that harms their

20 neighbors, these laws have traditionally been en21 acted, implemented, and enforced at the State and

22 local levels where they are best able to protect the

23 rights of all private property owners and local

24 citizens.
4

•HR 790 IH

1 (7) While traditional pollution control laws are

2 intended to protect the general public’s health and

3 physical welfare, current habitat protection pro4 grams are intended to protect the welfare of plant

5 and animal species, while allowing the recreational

6 and esthetic opportunities for the public.

7 (b) PURPOSES.—It is the purpose of this Act to pro8 vide a consistent Federal policy to encourage, support, and

9 promote the private ownership of property and to ensure

10 that the constitutional and legal rights of private property

11 owners are protected by the Federal Government, its em12 ployees, agents, and representatives.

13 SEC. 3. PROTECTION OF PRIVATE PROPERTY RIGHTS.

14 (a) COMPLIANCE; LEAST IMPACT.—In implementing

15 and enforcing the Acts, each agency head shall comply

16 with applicable State and tribal government laws, includ17 ing laws relating to private property rights and privacy;

18 and shall administer and implement the Acts in a manner

19 that has the least impact on private property owners’ con20 stitutional and other legal rights.

21 (b) RULES AND REGULATIONS.—Each agency head

22 shall develop and implement rules and regulations for en23 suring that the constitutional and other legal rights of pri24 vate property owners are protected when the agency head

25 makes, or participates with other agencies in the making
5

•HR 790 IH

1 of, any final decision that restricts the use of private

2 property.

3 SEC. 4. PROPERTY OWNER CONSENT FOR ENTRY.

4 (a) PROHIBITION ON COLLECTION OF INFORMATION

5 WITHOUT CONSENT.—An agency head may not enter pri6 vately-owned property to collect information regarding the

7 property, unless the private property owner has—

8 (1) consented in writing to that entry;

9 (2) after providing that consent, been provided

10 notice of that entry; and

11 (3) been notified that any raw data collected

12 from the property must be made available at no

13 cost, if requested by the private property owner.

14 (b) ENTRY TO OBTAIN CONSENT OR PROVIDE NO15 TICE.—Subsection (a) does not prohibit entry onto prop16 erty for the purpose of obtaining consent or providing no17 tice required under subsection (a).

18 (c) COURT ORDERS.—Nothing herein shall prevent a

19 duly authorized law enforcement officer from entering pri20 vate property under the authority of an order of a court.

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

22 FROM PRIVATE PROPERTY.

23 An agency head may not use data that is collected

24 on privately-owned property to implement or enforce any

25 of the Acts, unless—
6

•HR 790 IH

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

2 property owner—

3 (A) access to the information;

4 (B) a detailed description of the manner in

5 which the information was collected; and

6 (C) an opportunity to dispute the accuracy

7 of the information; and

8 (2) the agency head has determined that the in9 formation is accurate, if the private property owner

10 disputes the information pursuant to subparagraph

11 (C).

12 SEC. 6. RIGHT TO AN ADMINISTRATIVE APPEAL OF WET13 LANDS DECISIONS.

14 Section 404 of the Federal Water Pollution Control

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

16 the following new subsection:

17 ‘‘(u) ADMINISTRATIVE APPEALS.—

18 ‘‘(1) The Secretary or Administrator shall,

19 within 180 days after the date of enactment of the

20 Private Property Owners Bill of Rights and after

21 notice and opportunity for public comment, issue

22 rules to establish procedures to allow private prop23 erty owners or their authorized representatives an

24 opportunity for an administrative appeal of the fol25 lowing actions under this section:
7

•HR 790 IH

1 ‘‘(A) A determination of regulatory juris2 diction over a particular parcel of property.

3 ‘‘(B) The denial of a permit.

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

5 ‘‘(D) The imposition of an administrative

6 penalty.

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

8 the private property owner to restore or other9 wise alter the property.

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

11 provide that any administrative appeal of an action

12 described in paragraph (1) shall be heard and de13 cided by an official other than the official who took

14 the action, and shall be conducted at a location

15 which is in the vicinity of the property involved in

16 the action.’’.

17 SEC. 7. RIGHT TO ADMINISTRATIVE APPEAL UNDER THE

18 ENDANGERED SPECIES ACT OF 1973.

19 Section 11 of the Endangered Species Act of 1973

20 (16 U.S.C. 1540) is amended by adding at the end the

21 following new subsection:

22 ‘‘(i) ADMINISTRATIVE APPEALS.—

23 ‘‘(1) The Secretary shall, within 180 days after

24 the date of enactment of the Private Property Own25 ers Bill of Rights and after notice and opportunity
8

•HR 790 IH

1 for public comment, issue rules to establish proce2 dures to allow private property owners or their au3 thorized representatives an opportunity for an ad4 ministrative appeal of the following actions under

5 this Act:

6 ‘‘(A) A determination that a particular

7 parcel of property is critical habitat of a listed

8 species.

9 ‘‘(B) The denial of a permit for an inciden10 tal take.

11 ‘‘(C) The terms and conditions of an inci12 dental take permit.

13 ‘‘(D) The imposition of an administrative

14 penalty.

15 ‘‘(E) The imposition of an order prohibit16 ing or substantially limiting the use of the prop17 erty.

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

19 provide that any administrative appeal of an action

20 described in paragraph (1) shall be heard and de21 cided by an official other than the official who took

22 the action, and shall be conducted at a location

23 which is in the vicinity of the parcel of property in24 volved in the action.’’.
9

•HR 790 IH

1 SEC. 8. COMPENSATION FOR TAKING OF PRIVATE PROP2 ERTY.

3 (a) ELIGIBILITY.—(1) A private property owner that,

4 as a consequence of a final qualified agency action of an

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

6 market value, or the economically viable use, of the af7 fected portion of the property, as determined by a quali8 fied appraisal expert, is entitled to receive compensation

9 in accordance with this section.

10 (2) No compensation shall be required under this sec11 tion if the owner’s use or proposed use of the property

12 is a public nuisance as determined and defined by the laws

13 of the State in which the property is located or is prohib14 ited by laws other than the Acts as defined in section

15 10(1) of this Act.

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

17 final decision of an agency head that deprives a private

18 property owner of fair market value or viable use of prop19 erty for which compensation is required under subsection

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

21 request to the agency head for compensation in accordance

22 with subsection (c).

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

24 within 180 days after the receipt of a request for com25 pensation, shall stay the decision and shall provide to the

26 private property owner—
10

•HR 790 IH

1 (1) an offer to purchase the affected property

2 or an interest in the affected property of the private

3 property owner at a fair market value assuming no

4 use restrictions under the Acts; and

5 (2) an offer to compensate the private property

6 owner for the difference between the fair market

7 value of the property without those restrictions and

8 the fair market value of the property with those re9 strictions.

10 (d) PRIVATE PROPERTY OWNERS’ RESPONSE.—A

11 private property owner shall have 60 days after the date

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

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

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

15 the private property owner may submit the matter for ar16 bitration to an arbitrator appointed by the agency head

17 from a list of arbitrators submitted to the agency head

18 by the American Arbitration Association. The arbitration

19 shall be conducted in accordance with the real estate valu20 ation arbitration rules of that association. For purposes

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

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

23 any, of compensation owed to the private property owner

24 and whether for purposes of this section the private prop25 erty owner has been deprived of fair market value or viable
11

•HR 790 IH

1 use of property for which compensation is required under

2 subsection (a).

3 (e) PAYMENT.—An agency head shall pay a private

4 property owner any compensation required under the

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

6 the private property owner in accordance with subsection

7 (d), or under a decision of an arbiter under that sub8 section, by not later than 60 days after the date of the

9 acceptance or the date of the issuance of the decision, re10 spectively.

11 (f) FORM OF PAYMENT.—Payment under this sec12 tion, as that form is agreed to by the agency head and

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

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

15 market value of the property on the day before the

16 date of the final qualified agency action with respect

17 to which the property or interest is acquired;

18 (2) a payment of an amount equal to the reduc19 tion in value; or

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

21 real property having a fair market value equal to

22 that amount.

23 (g) SOURCE OF FUNDS FOR PAYMENT.—Compensa24 tion required under this Act may be paid from funds ap25 propriated for the purpose of acquiring and protecting
12

•HR 790 IH

1 wildlife habitat and wetlands. Notwithstanding any other

2 law, amounts appropriated to the Land and Water Con3 servation Fund may be used for—

4 (1) payments required under subsection (a);

5 and

6 (2) acquisitions of property and interests re7 quired under subsection (a).

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 and shall

22 be liable for payment to the plaintiff of compounded inter23 est from the date of the taking.
13

•HR 790 IH

1 SEC. 9. JURISDICTION AND JUDICIAL REVIEW.

2 Notwithstanding any other provision of law, a private

3 property owner may bring a suit under the fifth amend4 ment of the Constitution for compensation for the taking

5 of private property or a suit to challenge the validity of

6 any qualified agency action under the Acts as defined in

7 section 10(1) that adversely affects his or her interest in

8 private property, in either the United States District

9 Court or the United States Claims Court. Each court shall

10 have concurrent jurisdiction over both claims for monetary

11 relief and claims seeking invalidation of a qualified agency

12 action. A private property owner may file both claims in

13 the same proceeding seeking either remedy in the alter14 native.

15 SEC. 10. DEFINITIONS.

16 For the purpose of this Act:

17 (1) The term ‘‘the Acts’’ means the Endan18 gered Species Act of 1973 (16 U.S.C. 1531 et seq.)

19 and the section 404 of the Federal Water Pollution

20 Control Act (33 U.S.C. 1344).

21 (2) The term ‘‘agency head’’ means the Sec22 retary or Administrator with jurisdiction or author23 ity to take a final agency action under the Endan24 gered Species Act of 1973 (16 U.S.C. 1531 et seq.)

25 or section 404 of the Federal Water Pollution Con26 trol Act (33 U.S.C. 1344).
14

•HR 790 IH

1 (3) The term ‘‘Private property owner’’ means

2 a non-Federal person (other than an officer, em3 ployee, agent, department, or instrumentality of a

4 State, municipality, or political subdivision of a

5 State, or a State, municipality, or subdivision of a

6 State) that—

7 (A) owns property referred to in paragraph

8 (4) (A) or (B); or

9 (B) holds property referred to in para10 graph (4)(C).

11 (4) The term ‘‘property’’ means—

12 (A) land;

13 (B) any interest in land; and

14 (C) any proprietary water right.

15 (5) The term ‘‘qualified agency action’’ means

16 an agency action (as that term is defined in section

17 551(13) of title 5, United States Code) that is—

18 (A) under section 404 of the Federal

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

20 or

21 (B) under the Endangered Species Act of

22 1973 (16 U.S.C. 1531 et seq.).
15

•HR 790 IH

1 SEC. 11. PRIVATE PROPERTY OWNER PARTICIPATION IN

2 COOPERATIVE AGREEMENTS.

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

4 U.S.C. 1535) is amended by adding at the end the follow5 ing new subsection:

6 ‘‘(j) Notwithstanding any other provision of this sec7 tion, when the Secretary enters into a management agree8 ment under subsection (b) with any non-Federal person

9 that establishes restrictions on the use of property, the

10 Secretary shall notify all private property owners or les11 sees of the property that is subject to the management

12 agreement and shall provide an opportunity for each pri13 vate property owner or lessee to participate in the manage14 ment agreement.’’.

Æ