‘‘(A) A determination of regulatory juris-
diction over a particular parcel of property.
‘‘(B) The denial of a permit.
‘‘(C) The terms and conditions of a permit.
‘‘(D) The imposition of an administrative
penalty.
‘‘(E) The imposition of an order requiring
the private property owner to restore or other-
wise alter the property.
‘‘(2) Rules issued under paragraph (1) shall
provide that any administrative appeal of an action
described in paragraph (1) shall be heard and de-
cided by an official other than the official who took
the action, and shall be conducted at a location
which is in the vicinity of the property involved in
the action.’’.
SEC. 7. RIGHT TO ADMINISTRATIVE APPEAL UNDER THE
ENDANGERED SPECIES ACT OF 1973.
Section 11 of the Endangered Species Act of 1973
(16 U.S.C. 1540) is amended by adding at the end the
following new subsection:
‘‘(i) ADMINISTRATIVE APPEALS.—
‘‘(1) The Secretary shall, within 180 days after
the date of enactment of the Private Property Own-
ers Bill of Rights and after notice and opportunity
for public comment, issue rules to establish proce-
dures to allow private property owners or their au-
thorized representatives an opportunity for an ad-
ministrative appeal of the following actions under
this Act:
‘‘(A) A determination that a particular
parcel of property is critical habitat of a listed
species.
‘‘(B) The denial of a permit for an inciden-
tal take.
‘‘(C) The terms and conditions of an inci-
dental take permit.
‘‘(D) The imposition of an administrative
penalty.
‘‘(E) The imposition of an order prohibit-
ing or substantially limiting the use of the prop-
erty.
‘‘(2) Rules issued under paragraph (1) shall
provide that any administrative appeal of an action
described in paragraph (1) shall be heard and de-
cided by an official other than the official who took
the action, and shall be conducted at a location
which is in the vicinity of the parcel of property in-
volved in the action.’’.
SEC. 8. COMPENSATION FOR TAKING OF PRIVATE PROP-
ERTY.
(a) ELIGIBILITY.—(1) A private property owner that,
as a consequence of a final qualified agency action of an
agency head, is deprived of 50 percent or more of the fair
market value, or the economically viable use, of the af-
fected portion of the property, as determined by a quali-
fied appraisal expert, is entitled to receive compensation
in accordance with this section.
(2) No compensation shall be required under this sec-
tion if the owner’s use or proposed use of the property
is a public nuisance as determined and defined by the laws
of the State in which the property is located or is prohib-
ited by laws other than the Acts as defined in section
10(1) of this Act.
(b) DEADLINE.—Within 90 days after receipt of a
final decision of an agency head that deprives a private
property owner of fair market value or viable use of prop-
erty for which compensation is required under subsection
(a), the private property owner may submit in writing a
request to the agency head for compensation in accordance
with subsection (c).
(c) AGENCY HEAD’S OFFER.—The agency head,
within 180 days after the receipt of a request for com-
pensation, shall stay the decision and shall provide to the
private property owner—
(1) an offer to purchase the affected property
or an interest in the affected property of the private
property owner at a fair market value assuming no
use restrictions under the Acts; and
(2) an offer to compensate the private property
owner for the difference between the fair market
value of the property without those restrictions and
the fair market value of the property with those re-
strictions.
(d) PRIVATE PROPERTY OWNERS’ RESPONSE.—A
private property owner shall have 60 days after the date
of receipt of the agency head’s offers under subsection (c)
(1) and (2) to accept one of the offers or to reject both
offers. If the private property owner rejects both offers,
the private property owner may submit the matter for ar-
bitration to an arbitrator appointed by the agency head
from a list of arbitrators submitted to the agency head
by the American Arbitration Association. The arbitration
shall be conducted in accordance with the real estate valu-
ation arbitration rules of that association. For purposes
of this section, an arbitration is binding on the agency
head and a private property owner as to the amount, if
any, of compensation owed to the private property owner
and whether for purposes of this section the private prop-
erty owner has been deprived of fair market value or viable
use of property for which compensation is required under
subsection (a).
(e) PAYMENT.—An agency head shall pay a private
property owner any compensation required under the
terms of an offer of the agency head that is accepted by
the private property owner in accordance with subsection
(d), or under a decision of an arbiter under that sub-
section, by not later than 60 days after the date of the
acceptance or the date of the issuance of the decision, re-
spectively.
(f) FORM OF PAYMENT.—Payment under this sec-
tion, as that form is agreed to by the agency head and
the private property owner, may be in the form of—
(1) payment of an amount equal to the fair
market value of the property on the day before the
date of the final qualified agency action with respect
to which the property or interest is acquired;
(2) a payment of an amount equal to the reduc-
tion in value; or
(3) conveyance of real property or an interest in
real property having a fair market value equal to
that amount.
(g) SOURCE OF FUNDS FOR PAYMENT.—Compensa-
tion required under this Act may be paid from funds ap-
propriated for the purpose of acquiring and protecting
wildlife habitat and wetlands. Notwithstanding any other
law, amounts appropriated to the Land and Water Con-
servation Fund may be used for—
(1) payments required under subsection (a);
and
(2) acquisitions of property and interests re-
quired under subsection (a).
(h) OTHER RIGHTS PRESERVED.—This section does
not preempt, alter, or limit the availability of any remedy
for the taking of property or an interest in property that
is available under the Constitution or any other law.
(i) FINAL JUDGMENTS.—When a private property
owner unsuccessfully seeks compensation under this sec-
tion and thereafter files a claim for compensation under
the fifth amendment to the Constitution and is successful
in obtaining a final judgment ordering compensation from
the claims court for that claim, the agency head making
the final agency decision resulting in the taking shall reim-
burse the judgment fund for the amount of the judgment
against the United States from funds appropriated to the
agency for the 2 fiscal years following payment and shall
be liable for payment to the plaintiff of compounded inter-
est from the date of the taking.
SEC. 9. JURISDICTION AND JUDICIAL REVIEW.
Notwithstanding any other provision of law, a private
property owner may bring a suit under the fifth amend-
ment of the Constitution for compensation for the taking
of private property or a suit to challenge the validity of
any qualified agency action under the Acts as defined in
section 10(1) that adversely affects his or her interest in
private property, in either the United States District
Court or the United States Claims Court. Each court shall
have concurrent jurisdiction over both claims for monetary
relief and claims seeking invalidation of a qualified agency
action. A private property owner may file both claims in
the same proceeding seeking either remedy in the alter-
native.
SEC. 10. DEFINITIONS.
For the purpose of this Act:
(1) The term ‘‘the Acts’’ means the Endan-
gered Species Act of 1973 (16 U.S.C. 1531 et seq.)
and the section 404 of the Federal Water Pollution
Control Act (33 U.S.C. 1344).
(2) The term ‘‘agency head’’ means the Sec-
retary or Administrator with jurisdiction or author-
ity to take a final agency action under the Endan-
gered Species Act of 1973 (16 U.S.C. 1531 et seq.)
or section 404 of the Federal Water Pollution Con-
trol Act (33 U.S.C. 1344).
(3) The term ‘‘Private property owner’’ means
a non-Federal person (other than an officer, em-
ployee, agent, department, or instrumentality of a
State, municipality, or political subdivision of a
State, or a State, municipality, or subdivision of a
State) that—
(A) owns property referred to in paragraph
(4) (A) or (B); or
(B) holds property referred to in para-
graph (4)(C).
(4) The term ‘‘property’’ means—
(A) land;
(B) any interest in land; and
(C) any proprietary water right.
(5) The term ‘‘qualified agency action’’ means
an agency action (as that term is defined in section
551(13) of title 5, United States Code) that is—
(A) under section 404 of the Federal
Water Pollution Control Act (33 U.S.C. 1344);
or
(B) under the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.).
SEC. 11. PRIVATE PROPERTY OWNER PARTICIPATION IN
COOPERATIVE AGREEMENTS.
Section 6 of the Endangered Species Act of 1973 (16
U.S.C. 1535) is amended by adding at the end the follow-
ing new subsection:
‘‘(j) Notwithstanding any other provision of this sec-
tion, when the Secretary enters into a management agree-
ment under subsection (b) with any non-Federal person
that establishes restrictions on the use of property, the
Secretary shall notify all private property owners or les-
sees of the property that is subject to the management
agreement and shall provide an opportunity for each pri-
vate property owner or lessee to participate in the manage-
ment agreement.’’.
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