I
106TH CONGRESS
1ST SESSION
H. R. 1142
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, 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
A BILL
To ensure that landowners receive treatment equal to that
provided to the Federal Government when property must
be used.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Landowners Equal
Treatment Act of 1999’’.
SEC. 2. FINDINGS AND PURPOSE.
(a) FINDINGS.—The Congress finds and declares the
following:
(1) The Secretary of the Interior, through the
United States Fish and Wildlife Service, recently de-
manded and received compensation for the loss of
use of federally owned property resulting from con-
structive use of the property for other public pur-
poses, in an amount of approximately $26,000,000.
(2) The Secretary of Transportation has pro-
mulgated a regulation allowing for compensation of
Federal agencies for the lost use of agency property
for public purposes, through a definition of the term
‘‘constructive use’’ that includes off-site impacts of
Federal agency actions on federally owned property.
(3) The Federal Government enjoys no right
under the Constitution to compensation for use of
Federal agency property for other public purposes,
while the rights of private persons to be com-
pensated for the taking of their property by the Gov-
ernment for a public purpose is a fundamental right
protected by the Fifth and Fourteenth Amendments
to the Constitution.
(4) Private property owners should be com-
pensated in a manner that is at least as equitable
as the compensation afforded to Federal agencies
when their property is used or constructively used
for other public purposes.
(5) Fair and equitable treatment of private
property owners will increase the willingness of pri-
vate property owners to provide habitat for wildlife
and plants protected under the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.).
(b) PURPOSE.—The purpose of this Act is to increase
the efforts of private property owners to protect and re-
store habitat for wildlife, by ensuring that their constitu-
tional and legal property rights will be honored, respected,
and protected in the implementation of the Endangered
Species Act of 1973.
SEC. 3. MINIMIZING IMPACTS ON PRIVATE PROPERTY.
The Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.) is amended by adding at the end the fol-
lowing new section:
‘‘MINIMIZING IMPACTS ON PRIVATE PROPERTY
‘‘SEC. 19. (a) IN GENERAL.—In implementing this
Act, the head of an agency shall make every possible effort
to avoid, minimize, or mitigate impacts on non-Federal
property that result in Federal use of the property as a
direct result of the action of the agency head under this
Act or in furtherance of the purposes of this Act. An agen-
cy shall not take action that results in a Federal use of
non-Federal property under this Act unless the agency—
‘‘(1) obtains the written permission of its
owner;
‘‘(2) negotiates a voluntary agreement author-
izing that use; or
‘‘(3) pays compensation in accordance with this
section.
‘‘(b) COMPENSATION FOR FEDERAL USE OF NON-
FEDERAL PROPERTY.—An agency that takes action under
this Act or in furtherance of the purposes of this Act that
results in a Federal use of non-Federal property or any
portion of non-Federal property without the written con-
sent of the owner of the property shall compensate the
owner for the fair market value of the Federal use of the
property or portion. Compensation paid shall reflect the
duration of the Federal use as necessary to achieve the
purposes of this Act.
‘‘(c) REQUEST OF OWNER.—An owner of non-Fed-
eral property seeking compensation under this section
shall make a written request for compensation to the agen-
cy implementing the agency action resulting in the Federal
use of property. The request shall, at a minimum, identify
the affected portion of the property, the nature of the Fed-
eral use of non-Federal property for which the compensa-
tion is sought, and the amount of compensation sought.
‘‘(d) NEGOTIATIONS.—The agency may negotiate
with the owner to reach agreement on the amount of the
compensation under this section, the terms of any agree-
ment for payment, and the terms of any Federal use of
non-Federal property for which compensation is paid. If
such an agreement is reached, the agency shall within 6
months pay the owner the amount agreed upon. An agree-
ment under this section may include a transfer of title or
an agreement to limit the period of time of the Federal
use of non-Federal property.
‘‘(e) CHOICE OF REMEDIES.—If, not later than 180
days after the written request is made, the parties have
not reached an agreement on compensation, the owner of
the property may elect binding arbitration or seek com-
pensation due under this section in a civil action.
‘‘(f) ARBITRATION.—The procedures that govern the
arbitration shall, as nearly as practicable, be those estab-
lished under title 9, United States Code, for arbitration
proceedings to which that title applies. An award made
in such arbitration shall include a reasonable attorney’s
fee and other arbitration costs, including appraisal fees.
The agency shall promptly pay any award made to the
owner.
‘‘(g) CIVIL ACTIONS.—A civil action to enforce this
section may be filed under section 11(g). An owner who
prevails in a civil action against the agency pursuant to
this section shall be entitled to, and the agency shall be
liable for, the amount of compensation awarded plus rea-
sonable attorney’s fees and other litigation costs, including
appraisal fees. The court shall award interest on the
amount of any compensation from the time of the Federal
use of non-Federal property.
‘‘(h) SOURCE OF PAYMENTS.—Any payment made
under this section to an owner of property and any judg-
ment obtained by an owner of property in a civil action
under this section shall, notwithstanding any other provi-
sion of law, be made from the annual appropriation of the
agency that took the agency action giving rise to the pay-
ment or civil action. If the agency action resulted from
a requirement imposed by another agency, then the agency
making the payment or satisfying the judgment may seek
partial or complete reimbursement from the appropriated
funds of the other agency. For this purpose, the head of
the agency concerned may transfer or reprogram any ap-
propriated funds available to the agency. If insufficient
funds exist for the payment or to satisfy the judgment,
it shall be the duty of the head of the agency to seek the
appropriation of such funds for the next fiscal year.
‘‘(i) AVAILABILITY OF APPROPRIATIONS.—Notwith-
standing any other provision of law, any obligation of the
United States to make any payment under this section
shall be subject to the availability of appropriations.
‘‘(j) DUTY OF NOTICE TO OWNERS.—An agency may
not take any action that is a Federal use of non-Federal
property unless the agency has given 30 days notice to
each owner of the property directly affected explaining
their rights under this section and either obtaining their
permission for the Federal use or providing the procedures
for obtaining any compensation that may be available
under this section.
‘‘(k) RULES OF CONSTRUCTION.—The following rules
of construction shall apply to this Act:
‘‘(1) OTHER RIGHTS PRESERVED.—Nothing in
this Act shall be construed to limit any right to com-
pensation that exists under the Constitution or
under other laws.
‘‘(2) EXTENT OF FEDERAL AUTHORITY.—Pay-
ment of compensation under this section (other than
when property is bought by the Federal Government
at the option of the owner) shall not confer any
rights on the Federal Government other than the
Federal use of non-Federal property agreed to so
that the agency action may achieve the species con-
servation purposes of this Act.
‘‘(l) DEFINITIONS.—For the purposes of this section:
‘‘(1) AGENCY.—The term ‘agency’ has the
meaning given that term in section 551 of title 5,
United States Code.
‘‘(2) FEDERAL USE.—(A) The term ‘Federal
use’ means—
‘‘(i) any action under this Act to—
‘‘(I) permanently incorporate non-
Federal property into a Federal facility;
‘‘(II) 
place 
non-Federal 
property
under the control of the Secretary; or
‘‘(III) temporarily occupy non-Federal
property in a manner that is adverse to the
constitutional right of the owner of the
property against taking of the property by
the Federal Government; and
‘‘(ii) any constructive use of non-Federal
property.
‘‘(B) In this paragraph the term ‘constructive
use’ means any action described in subparagraph
(C) taken under this Act that results in—
‘‘(i) substantial diminution in the normal
or reasonably expected uses of non-Federal
property;
‘‘(ii) a reduction in the fair market value
of non-Federal property of 25 percent or more;
or
‘‘(iii) in the case of the right to receive
water, any diminution in the quantity of water
received or available for use.
‘‘(C) The actions referred to in subparagraph
(B) are the following:
‘‘(i) The imposition or enforcement of a
prohibition of use of non-Federal property the
purpose of which is to provide or retain habitat
for any species of wildlife or plant determined
to be an endangered species or threatened spe-
cies.
‘‘(ii) A designation of non-Federal property
as critical habitat under this Act.
‘‘(iii) The denial of a permit under section
10 that results in the loss of the ability to use
non-Federal property in order to provide habi-
tat for wildlife or plants.
‘‘(iv) An agency action pursuant to a rea-
sonable and prudent alternative suggested by
the Secretary under section 7, that would cause
an agency to restrict the use of non-Federal
property.
‘‘(v) The imposition by any governmental
entity of a limitation or restriction on an other-
wise permissible use of non-Federal property by
the owner of the property, as a condition of a
Federal agency providing any land, money, per-
mit, or other benefit to the governmental entity,
if imposition of the limitation or restriction by
the agency directly would constitute a Federal
use of non-Federal property under the other
provisions of this paragraph, unless the govern-
mental entity has some other legal basis for im-
posing the limitation or restriction.
‘‘(3) FAIR
MARKET
VALUE.—The term ‘fair
market value’ means the most probable price at
which property or a right to use property would
change hands, in a competitive and open market
under all conditions requisite to fair sale, between a
willing buyer and willing seller, neither being under
any compulsion to buy or sell and both having rea-
sonable knowledge of relevant facts, and without re-
gard to the presence of any species protected under
this Act. With respect to a right to use property,
fair market value shall be determined on or imme-
diately before the exercise of the right.
‘‘(4) LAW OF THE STATE.—The term ‘law of
the State’ includes the law of a political subdivision
of a State.
‘‘(5) NON-FEDERAL
PROPERTY.—The term
‘non-Federal property’ means property which is
owned by a person other than any Federal entity of
government.
‘‘(6) PROPERTY.—The term ‘property’ means
land, an interest in land, the right to use or receive
water, and any personal property, as defined under
the law of the State.’’.
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