I
104TH CONGRESS
1ST SESSION
H. R. 489
To establish a uniform and more efficient Federal process for protecting
property owners’ rights guaranteed by the fifth amendment.
IN THE HOUSE OF REPRESENTATIVES
JANUARY 11, 1995
Mr. SMITH of Texas (for himself, Mr. THORNBERRY, Mr. KNOLLENBERG, Mr.
BONILLA, and Mr. MCHUGH) introduced the following bill; which was re-
ferred to the Committee on the Judiciary
A BILL
To establish a uniform and more efficient Federal process
for protecting property owners’ rights guaranteed by the
fifth amendment.
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 ‘‘Property Rights
Litigation Relief Act of 1995’’.
SEC. 2. FINDINGS.
The Congress finds that—
(1) the private ownership of property is essen-
tial to a free society and is an integral part of the
American tradition of liberty and limited govern-
ment;
(2) the framers of the United States Constitu-
tion, in order to protect private property and liberty,
devised a framework of Government designed to dif-
fuse power and limit Government;
(3) to further ensure the protection of private
property, the fifth amendment to the United States
Constitution was ratified to prevent the taking of
private property by the Federal Government, except
for public use and with just compensation;
(4) the purpose of the takings clause of the
fifth amendment of the United States Constitution,
as the Supreme Court stated in Armstrong v. United
States, 364 U.S. 40, 49 (1960), is ‘‘to bar Govern-
ment from forcing some people alone to bear public
burdens, which in all fairness and justice, should be
borne by the public as a whole’’;
(5) the Federal Government, in its haste to
ameliorate public harms and environmental abuse,
has singled out property holders to shoulder the cost
that should be borne by the public, in violation of
the just compensation requirement of the takings
clause of the fifth amendment of the United States
Constitution;
(6) there is a need to both restrain the Federal
Government in its overzealous regulation of the pri-
vate sector and to protect private property, which is
a fundamental right of the American people;
(7) the incremental, fact-specific approach that
courts now are required to employ in the absence of
adequate statutory language to vindicate property
rights under the fifth amendment of the United
States Constitution has been ineffective and costly
and there is a need for Congress to clarify the law
and provide an effective remedy;
(8) certain provisions of sections 1346 and
1402 and chapter 91 of title 28, United States Code
(commonly known as the Tucker Act), that delin-
eates the jurisdiction of courts hearing property
rights claims, complicates the ability of a property
owner to vindicate a property owner’s right to just
compensation for a governmental action that has
caused a physical or regulatory taking;
(9) current law—
(A) forces a property owner to elect be-
tween equitable relief in the district court and
monetary relief (the value of the property
taken) in the United States Court of Federal
Claims;
(B) is used to urge dismissal in the district
court on the ground that the plaintiff should
seek just compensation in the Court of Federal
Claims; and
(C) is used to urge dismissal in the Court
of Federal Claims on the ground that plaintiff
should seek equitable relief in district court;
(10) property owners cannot fully vindicate
property rights in one court;
(11) property owners should be able to fully re-
cover for a taking of their private property in one
court;
(12) certain provisions of section 1346 and
1402 and chapter 91 of title 28, United States Code
(commonly known as the Tucker Act) should be
amended, giving both the district courts of the Unit-
ed States and the Court of Federal Claims jurisdic-
tion to hear all claims relating to property rights;
and
(13) section 1500 of title 28, United States
Code, which denies the Court of Federal Claims ju-
risdiction to entertain a suit which is pending in an-
other court and made by the same plaintiff, should
be repealed.
SEC. 3. PURPOSE.
The purpose of this Act is to—
(1) encourage, support, and promote the private
ownership of property by ensuring the constitutional
and legal protection of private property by the Unit-
ed States Government;
(2) establish a clear, uniform, and efficient ju-
dicial process whereby aggrieved property owners
can obtain vindication of property rights guaranteed
by the fifth amendment to the United States Con-
stitution and this Act;
(3) amend certain provisions of the Tucker Act,
including the repeal of section 1500 of title 28,
United States Code;
(4) rectify the constitutional imbalance between
the Federal Government and the States; and
(5) require the Federal Government to com-
pensate property owners for the deprivation of prop-
erty rights that result from State agencies’ enforce-
ment of federally mandated programs.
SEC. 4. DEFINITIONS.
For purposes of this Act the term—
(1) ‘‘agency’’ means a department, agency,
independent agency, or instrumentality of the United
States, including any military department, Govern-
ment corporation, Government-controlled corpora-
tion, or other establishment in the executive branch
of the United States Government;
(2) ‘‘agency action’’ means any action or deci-
sion taken by an agency that—
(A) takes a property right; or
(B) unreasonably impedes the use of prop-
erty or the exercise of property interests or sig-
nificantly interferes with investment-backed ex-
pectations;
(3) ‘‘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
and business losses arising from a taking,
whether the taking is by physical occupation or
through regulation, exaction, or other means;
and
(B) shall include compounded interest cal-
culated from the date of the taking until the
date the United States tenders payment;
(4) ‘‘owner’’ means the owner or possessor 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;
(5) ‘‘private property’’ or ‘‘property’’ means all
property protected under the fifth amendment to the
Constitution of the United States, any applicable
Federal or State law, or this Act, and includes—
(A) real property, whether vested or
unvested, including—
(i) estates in fee, life estates, estates
for years, or otherwise;
(ii) inchoate interests in real property
such as remainders and future interests;
(iii) personalty that is affixed to or
appurtenant to real property;
(iv) easements;
(v) leaseholds;
(vi) recorded liens; and
(vii) contracts or other security inter-
ests in, or related to, real property;
(B) the right to use water or the right to
receive water, including any recorded lines on
such water right;
(C) rents, issues, and profits of land, in-
cluding minerals, timber, fodder, crops, oil and
gas, coal, or geothermal energy;
(D) property rights provided by, or memo-
rialized in, a contract, except that such rights
shall not be construed under this title to pre-
vent the United States from prohibiting the for-
mation of contracts deemed to harm the public
welfare or to prevent the execution of contracts
for—
(i) national security reasons; or
(ii) exigencies that present immediate
or reasonably foreseeable threats or inju-
ries to life or property;
(E) any interest defined as property under
State law; or
(F) any interest understood to be property
based on custom, usage, common law, or mutu-
ally reinforcing understandings sufficiently well-
grounded in law to back a claim of interest;
(6) ‘‘State agency’’ means any State depart-
ment, agency, political subdivision, or instrumental-
ity that—
(A) carries out or enforces a regulatory
program required under Federal law;
(B) is delegated administrative or sub-
stantive responsibility under a Federal regu-
latory program; or
(C) receives Federal funds in connection
with a regulatory program established by a
State pursuant to a Federal requirement,
if the State enforcement of the regulatory program,
or the receipt of Federal funds in connection with a
regulatory program established by a State, is di-
rectly related to the taking of private property seek-
ing to be vindicated under this Act; and
(7) ‘‘taking of private property’’—
(A) means any action whereby private
property is directly taken as to require com-
pensation under the fifth amendment to the
United States Constitution or under this Act,
including by physical invasion, regulation, exac-
tion, condition, or other means; and
(B) shall not include—
(i) a condemnation action filed by the
United States in an applicable court; or
(ii) an action filed by the United
States relating to criminal forfeiture.
SEC. 5. COMPENSATION FOR TAKEN PROPERTY.
(a) IN GENERAL.—No agency or State agency, shall
take private property except for public purpose and with
just compensation to the property owner. A property
owner shall receive just compensation if—
(1) as a consequence of a decision of any agen-
cy, or State agency, private property (whether all or
in part) has been physically invaded or taken for
public use without the consent of the owner; and
(2)(A) such action does not substantially ad-
vance the stated governmental interest to be
achieved by the legislation or regulation on which
the action is based;
(B) such action exacts the owner’s constitu-
tional or otherwise lawful right to use the property
or a portion of such property as a condition for the
granting of a permit, license, variance, or any other
agency action without a rough proportionality be-
tween the stated need for the required dedication
and the impact of the proposed use of the property;
(C) such action results in the property owner
being deprived, either temporarily or permanently, of
all or substantially all economically beneficial or pro-
ductive use of the property or that part of the prop-
erty affected by the action without a showing that
such deprivation inheres in the title itself;
(D) such action diminishes the fair market
value of the affected portion of the property which
is the subject of the action by the lesser of—
(i) 10 percent or more with respect to the
value immediately prior to the governmental ac-
tion; or
(ii) $10,000, or more with respect to the
value immediately prior to the governmental ac-
tion; or
(E) under any other circumstance where a tak-
ing has occurred within the meaning of the fifth
amendment of the United States Constitution.
(b) BURDEN OF PROOF.—(1) The Government shall
bear the burden of proof in any action described under—
(A) subsection (a)(2)(A), with regard to show-
ing the nexus between the stated governmental pur-
pose of the governmental interest and the impact on
the proposed use of private property;
(B) subsection (a)(2)(B), with regard to show-
ing the proportionality between the exaction and the
impact of the proposed use of the property; and
(C) subsection (a)(2)(C), with regard to show-
ing that such deprivation of value inheres in the title
to the property.
(2) The property owner shall have the burden of
proof in any action described under subsection (a)(2)(D),
with regard to establishing the diminution of value of
property.
(c) COMPENSATION AND NUISANCE EXCEPTION TO
PAYMENT OF JUST COMPENSATION.—(1) No compensa-
tion shall be required by this Act if the owner’s use or
proposed use of the property is a nuisance as commonly
understood and defined by background principles of nui-
sance and property law, as understood within the State
in which the property is situated, and to bar an award
of damages under this Act, the United States shall have
the burden of proof to establish that the use or proposed
use of the property is a nuisance.
(2) Subject to paragraph (1), if an agency action di-
rectly takes property or a portion of property under sub-
section (a), compensation to the owner of the property
that is affected by the action shall be either the greater
of an amount equal to—
(A) the difference between—
(i) the fair market value of the property or
portion of the property affected by agency ac-
tion before such property became the subject of
the specific government regulation; and
(ii) the fair market value of the property
or portion of the property when such property
becomes subject to the agency action; or
(B) business losses.
(d) TRANSFER OF PROPERTY INTEREST.—The Unit-
ed States shall take title to the property interest for which
the United States pays a claim under this Act.
(e) SOURCE OF COMPENSATION.—The compensation
referred to in this section shall be paid out of funds made
available to the Federal agency or department by appro-
priation for the fiscal year in which the property depriva-
tion referred to in this section occurred. If no such funds
have been made available to the agency, such payment
shall be made from the Judgment Fund.
SEC. 6. JURISDICTION AND JUDICIAL REVIEW.
(a) IN GENERAL.—A property owner may file a civil
action under this Act to challenge the validity of any agen-
cy action that adversely affects the owner’s interest in pri-
vate property in either the United States District Court
or the United States Court of Federal Claims. This section
constitutes express waiver of the sovereign immunity of
the United States. Notwithstanding any other provision of
law and notwithstanding the issues involved, the relief
sought, or the amount in controversy, each court shall
have concurrent jurisdiction over both claims for monetary
relief and claims seeking invalidation of any Act of Con-
gress or any regulation of an agency as defined under this
Act affecting private property rights. The plaintiff shall
have the election of the court in which to file a claim for
relief.
(b) STANDING.—Persons adversely affected by an
agency action taken under this Act shall have standing
to challenge and seek judicial review of that action.
(c) AMENDMENTS TO TITLE 28, UNITED STATES
CODE.—(1) Section 1491(a) of title 28, United States
Code, is amended—
(A) in paragraph (1) by amending the first sen-
tence to read as follows: ‘‘The United States Court
of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States
for monetary relief founded either upon the Con-
stitution or any Act of Congress or any regulation
of an executive department, or upon any express or
implied contract with the United States, in cases not
sounding in tort, or for invalidation of any Act of
Congress or any regulation of an executive depart-
ment that adversely affects private property rights
in violation of the fifth amendment of the United
States Constitution’’;
(B) in paragraph (2) by inserting before the
first sentence the following: ‘‘In any case within its
jurisdiction, the Court of Federal Claims shall have
the power to grant injunctive and declaratory relief
when appropriate.’’; and
(C) by adding at the end thereof the following
new paragraphs:
‘‘(4) In cases otherwise within its jurisdiction,
the Court of Federal Claims shall also have ancillary
jurisdiction, concurrent with the courts designated in
section 1346(b) of this title, to render judgment
upon any related tort claim authorized under section
2674 of this title.
‘‘(5) In proceedings within the jurisdiction of
the Court of Federal Claims which constitute judi-
cial review of agency action (rather than de novo
proceedings), the provisions of section 706 of title 5
shall apply.’’.
(2)(A) Section 1500 of title 28, United States Code,
is repealed.
(B) The table of sections for chapter 91 of title 28,
United States Code, is amended by striking out the item
relating to section 1500.
SEC. 7. STATUTE OF LIMITATIONS.
The statute of limitations for actions brought under
this title shall be 6 years from the date of the taking of
property.
SEC. 8. ATTORNEYS’ FEES AND COSTS.
The court, in issuing any final order in any action
brought under this Act, shall award costs of litigation (in-
cluding reasonable attorney and expert witness fees) to
any prevailing plaintiff.
SEC. 9. ALTERNATIVE DISPUTE RESOLUTION.
(a) IN GENERAL.—Either party to a dispute over a
taking of property as defined under this Act or litigation
commenced under this Act may elect to resolve the dispute
through settlement or arbitration. In the administration
of this section—
(1) such alternative dispute resolution may only
be effectuated by the consent of all parties;
(2) arbitration procedures shall be in accord-
ance with the alternative dispute resolution proce-
dures established by the American Arbitration Asso-
ciation; and
SEC. 10. RULES OF CONSTRUCTION.
Nothing in this Act shall be construed to interfere
with the authority of any State to create additional prop-
erty rights.
SEC. 11. SEVERABILITY.
If any provision of this Act, an amendment made by
this Act, or the application of such provision or amend-
ment to any person or circumstance is held to be unconsti-
tutional, the remainder of this Act, the amendments made
by this Act, and the application of the provisions of such
to any person or circumstance shall not be affected there-
by.
SEC. 12. EFFECTIVE DATE.
The provisions of this Act and amendments made by
this Act shall take effect on January 1, 1995 and shall
apply to any agency action that occurs on or after such
date.
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HR 489 IH——2