I
105TH CONGRESS
2D SESSION
H. R. 4554
To reform Federal land management activities relating to endangered species
conservation.
IN THE HOUSE OF REPRESENTATIVES
SEPTEMBER 11, 1998
Mr. THOMAS introduced the following bill; which was referred to the
Committee on Resources
A BILL
To reform Federal land management activities relating to
endangered species conservation.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; REFERENCES.
(a) SHORT TITLE.—This Act may be cited as the
‘‘Endangered Species Land Management Reform Act’’.
(b) REFERENCES TO ENDANGERED SPECIES ACT OF
1973.—Except as otherwise expressly provided, whenever
in this Act an amendment or repeal is expressed in terms
of an amendment to, or repeal of, a section or other provi-
sion, the reference shall be considered to be made to that
section or provision of the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.).
SEC. 2. RIGHT TO COMPENSATION.
(a) IN GENERAL.—Section 13 of the Endangered
Species Act of 1973 is amended to read as follows:
‘‘RIGHT TO COMPENSATION
‘‘SEC. 13. (a) PROHIBITION.—No agency may take
an action under this Act affecting privately owned prop-
erty that results in the diminishment of the value of any
portion of that property by an amount equal to or greater
than 50 percent of the value of that portion unless com-
pensation is offered in accordance with this section.
‘‘(b) COMPENSATION
FOR
DIMINISHMENT.—Any
agency that takes an action referred to in subsection (a)—
‘‘(1) shall compensate the property owner for
the diminution in value of any portion of that prop-
erty resulting from the action; or
‘‘(2) at the option of the owner, shall buy that
portion of the property by paying the fair market
value of the portion, determined based on the value
of the property before the diminution and without
regard to the presence on the property of a species
listed under section 4(c), or the use of the property
by such a species.
‘‘(c) REQUEST OF OWNER.—A property owner seek-
ing compensation under this section shall make a written
request for compensation to the agency whose action
would limit the otherwise lawful use of property. The re-
quest shall, at a minimum, identify the affected portion
of the property, the nature of the diminution, and the
amount of compensation claimed.
‘‘(d) CHOICE OF REMEDIES.—If the parties have not
reached an agreement on compensation within 180 days
after the written request is made, the owner may elect
binding arbitration through alternative dispute resolution
or seek compensation due under this section in a civil ac-
tion. The parties may by mutual agreement extend the pe-
riod of negotiation on compensation beyond the 180-day
period without loss of remedy to the owner under this sec-
tion. In the event the extension period lapses the owner
may elect binding arbitration through alternative dispute
resolution or seek compensation due under this section in
a civil action.
‘‘(e) ALTERNATIVE DISPUTE RESOLUTION.—
‘‘(1) IN
GENERAL.—In the administration of
this section—
‘‘(A) arbitration procedures shall be in ac-
cordance with the alternative dispute resolution
procedures established by the American Arbi-
tration Association; and
‘‘(B) in no event shall arbitration be a con-
dition precedent or an administrative procedure
to be exhausted before the filing of a civil action
under this section.
‘‘(2) REVIEW OF ARBITRATION.—
‘‘(A) APPEAL OF DECISION.—Appeal from
arbitration decisions shall be to the United
States District Court for the district in which
the property is located or the United States
Court of Federal Claims in the manner pre-
scribed by law for the claim under this section.
‘‘(B) 
RULES
OF
ENFORCEMENT
OF
AWARD.—The provisions of title 9, United
States Code (relating to arbitration), shall
apply to enforcement of awards rendered under
this section.
‘‘(f) CIVIL ACTION.—An owner who prevails in a civil
action against any agency pursuant to this section shall
be entitled to, and such agency shall be liable for, just
compensation, plus reasonable attorney’s fees and other
litigation costs, including appraisal fees.
‘‘(g) SOURCE OF PAYMENTS.—Any payment made
under this section shall be paid from the responsible agen-
cy’s annual appropriation supporting the agency’s activi-
ties giving rise to the claim for compensation. If insuffi-
cient funds are available to the agency in the fiscal year
in which the award becomes final the agency shall pay the
award from appropriations available in the next fiscal
year.
‘‘(h) DEFINITIONS.—For the purposes of this sec-
tion—
‘‘(1) the term ‘agency’ has the meaning given
that term in section 551 of title 5, United States
Code;
‘‘(2) the term ‘agency action’ means any action
or decision taken by any agency that at the time of
such action or decision adversely affects private
property rights;
‘‘(3) the term ‘fair market value’ means the
likely price at which property would change hands,
in a competitive and open market under all condi-
tions requisite to fair sale, between a willing buyer
and willing seller, neither being under any compul-
sion to buy or sell and both having reasonable
knowledge of relevant facts, prior to occurrence of
the agency action;
‘‘(4) the term ‘just compensation’—
‘‘(A) means compensation equal to the full
extent of a property owner’s loss, including the
fair market value of the private property taken,
whether the taking is by physical occupation or
through regulation, exaction, or other means;
and
‘‘(B) shall include compounded interest
calculated from the date of the taking until the
date the United States tenders payment;
‘‘(5) the term ‘owner’ means the owner or pos-
sessor of property or rights in property at the time
the taking occurs, including when—
‘‘(A) the statute, regulation, rule, order,
guideline, policy, or action is passed or promul-
gated; or
‘‘(B) the permit, license, authorization, or
governmental permission is denied or sus-
pended;
‘‘(6) the term ‘property’ means land, an interest
in land, proprietary water rights, and any personal
property that is subject to use by the Federal Gov-
ernment or to a restriction on use;
‘‘(7) the term ‘private property’ or ‘property’
means all interests constituting real property, as de-
fined by Federal or State law, protected under the
fifth amendment to the United States Constitution,
any applicable Federal or State law, or this section,
and more specifically constituting—
‘‘(A) real property, whether vested or
unvested, including—
‘‘(i) estates in fee, life estates, estates
for years, or otherwise;
‘‘(ii) inchoate interests in real prop-
erty such as remainders and future inter-
ests;
‘‘(iii) personalty that is affixed to or
appurtenant to real property;
‘‘(iv) easements;
‘‘(v) leaseholds;
‘‘(vi) recorded liens; and
‘‘(vii) contracts or other security in-
terests in, or related to, real property;
‘‘(B) the right to use water or the right to
receive water, including any recorded liens on
such water right; or
‘‘(C) rents, issues, and profits of land, in-
cluding minerals, timber, fodder, crops, oil and
gas, coal, or geothermal energy.’’.
(b) CONFORMING AMENDMENT.—The table of con-
tents at the end of the first section is amended by striking
the item relating to section 13 and inserting the following:
‘‘Sec. 13. Right to compensation.’’.
SEC. 3. SPECIES CONSERVATION TRUST FUND.
(a) ESTABLISHMENT.—Section 14 of the Endangered
Species Act of 1973 is amended to read as follows:
‘‘SPECIES CONSERVATION FUND
‘‘SEC. 14. (a) ESTABLISHMENT OF FUND.—There is
established in the Treasury a separate account, which
shall be known as the Species Conservation Fund (in this
section revered to as the ‘Fund’).
‘‘(b) CONTENTS.—The Fund shall consist of such
amounts as are appropriated to the Fund.
‘‘(c) USE.—Amounts in the Fund shall be available
to the Secretary, without further appropriation, to carry
out projects on privately owned land to conserve species
included in lists published under section 4(c) and their
habitats, including for acquiring real property, waters, or
interests therein.’’.
(b) CONFORMING AMENDMENT.—The table of con-
tents at the end of the first section is amended by striking
the item relating to section 14 and inserting the following:
‘‘Sec. 14. Species Conservation Fund.’’.
SEC. 4. LIMITATION ON MITIGATION REQUIREMENTS.
Section 10 (16 U.S.C. 1539) is amended by adding
at the end the following:
‘‘(k) LIMITATION ON MITIGATION REQUIREMENTS.—
(1) If the Secretary requires that mitigation be carried
out as a condition of any approval or other action by the
Secretary under any provision of this Act with respect to
an activity, then the scope and scale of mitigation required
may not exceed the scope and scale of the activity for
which mitigation is required.
‘‘(2) With respect to activities affecting land—
‘‘(A) the area of land on which the mitigation
is required may not exceed the area of land subject
to impacts for which mitigation is required; and
‘‘(B) the mitigation required may not require
expenditures greater than the cost of fencing and
preserving the current condition of the land on
which the activity is conducted.’’.
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