[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H.R. 790 Introduced in House (IH)]







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

_______________________________________________________________________

                                 A BILL


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

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Private Property Owners Bill of 
Rights''.

SEC. 2. FINDINGS AND PURPOSE.

    (a) Findings.--The Congress finds the following:
            (1) Our democracy was founded on principles of ownership, 
        use, and control of private property. These principles are 
        embodied in the fifth amendment to the Constitution prohibiting 
        the taking of private property without the payment of just 
        compensation.
            (2) A number of Federal environmental programs, 
        specifically the Endangered Species Act of 1973 (16 U.S.C. 1531 
        et seq.) and section 404 of the Federal Water Pollution Control 
        Act (33 U.S.C. 1344) have been implemented by employees, 
        agents, and representatives of the Federal Government in a 
        manner that deprives private property owners of the use and 
        control of their property.
            (3) As new Federal programs are proposed that would limit 
        and restrict the use of private property to provide habitat for 
        plant and animal species, the rights of private property owners 
        must be recognized and respected.
            (4) Private property owners are being forced by Federal 
        policy to resort to extensive, lengthy, and expensive 
        litigation to protect certain basic civil rights guaranteed by 
        the Constitution.
            (5) Since many private property owners do not have the 
        financial resources or the extensive commitment of time to 
        proceed in litigation against the Federal Government, a clear 
        Federal policy is needed to guide and direct Federal agencies 
        with respect to their implementation of environmental laws that 
        directly impact private property.
            (6) While all private property owners should and must abide 
        by current nuisance laws and should not use their property in a 
        manner that harms their neighbors, these laws have 
        traditionally been enacted, implemented, and enforced at the 
        State and local levels where they are best able to protect the 
        rights of all private property owners and local citizens.
            (7) While traditional pollution control laws are intended 
        to protect the general public's health and physical welfare, 
        current habitat protection programs are intended to protect the 
        welfare of plant and animal species, while allowing the 
        recreational and esthetic opportunities for the public.
    (b) Purposes.--It is the purpose of this Act to provide a 
consistent Federal policy to encourage, support, and promote the 
private ownership of property and to ensure that the constitutional and 
legal rights of private property owners are protected by the Federal 
Government, its employees, agents, and representatives.

SEC. 3. PROTECTION OF PRIVATE PROPERTY RIGHTS.

    (a) Compliance; Least Impact.--In implementing and enforcing the 
Acts, each agency head shall comply with applicable State and tribal 
government laws, including laws relating to private property rights and 
privacy; and shall administer and implement the Acts in a manner that 
has the least impact on private property owners' constitutional and 
other legal rights.
    (b) Rules and Regulations.--Each agency head shall develop and 
implement rules and regulations for ensuring that the constitutional 
and other legal rights of private property owners are protected when 
the agency head makes, or participates with other agencies in the 
making of, any final decision that restricts the use of private 
property.

SEC. 4. PROPERTY OWNER CONSENT FOR ENTRY.

    (a) Prohibition on Collection of Information Without Consent.--An 
agency head may not enter privately-owned property to collect 
information regarding the property, unless the private property owner 
has--
            (1) consented in writing to that entry;
            (2) after providing that consent, been provided notice of 
        that entry; and
            (3) been notified that any raw data collected from the 
        property must be made available at no cost, if requested by the 
        private property owner.
    (b) Entry To Obtain Consent or Provide Notice.--Subsection (a) does 
not prohibit entry onto property for the purpose of obtaining consent 
or providing notice required under subsection (a).
    (c) Court Orders.--Nothing herein shall prevent a duly authorized 
law enforcement officer from entering private property under the 
authority of an order of a court.

SEC. 5. RIGHT TO REVIEW AND DISPUTE DATA COLLECTED FROM PRIVATE 
              PROPERTY.

    An agency head may not use data that is collected on privately-
owned property to implement or enforce any of the Acts, unless--
            (1) the agency head has provided to the private property 
        owner--
                    (A) access to the information;
                    (B) a detailed description of the manner in which 
                the information was collected; and
                    (C) an opportunity to dispute the accuracy of the 
                information; and
            (2) the agency head has determined that the information is 
        accurate, if the private property owner disputes the 
        information pursuant to subparagraph (C).

SEC. 6. RIGHT TO AN ADMINISTRATIVE APPEAL OF WETLANDS DECISIONS.

    Section 404 of the Federal Water Pollution Control Act (33 U.S.C. 
1344) is amended by adding at the end the following new subsection:
    ``(u) Administrative Appeals.--
            ``(1) The Secretary or Administrator shall, within 180 days 
        after the date of enactment of the Private Property Owners Bill 
        of Rights and after notice and opportunity for public comment, 
        issue rules to establish procedures to allow private property 
        owners or their authorized representatives an opportunity for 
        an administrative appeal of the following actions under this 
        section:
                    ``(A) A determination of regulatory jurisdiction 
                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 otherwise 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 decided 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 Owners Bill of Rights and 
        after notice and opportunity for public comment, issue rules to 
        establish procedures to allow private property owners or their 
        authorized representatives an opportunity for an administrative 
        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 incidental 
                take.
                    ``(C) The terms and conditions of an incidental 
                take permit.
                    ``(D) The imposition of an administrative penalty.
                    ``(E) The imposition of an order prohibiting or 
                substantially limiting the use of 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 decided 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 
        involved in the action.''.

SEC. 8. COMPENSATION FOR TAKING OF PRIVATE PROPERTY.

    (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 affected portion of the property, as 
determined by a qualified appraisal expert, is entitled to receive 
compensation in accordance with this section.
    (2) No compensation shall be required under this section 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 prohibited 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 property 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 compensation, 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 restrictions.
    (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 
arbitration 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 valuation 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 property 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 
subsection, by not later than 60 days after the date of the acceptance 
or the date of the issuance of the decision, respectively.
    (f) Form of Payment.--Payment under this section, 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 reduction 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.--Compensation required under this 
Act may be paid from funds appropriated for the purpose of acquiring 
and protecting wildlife habitat and wetlands. Notwithstanding any other 
law, amounts appropriated to the Land and Water Conservation Fund may 
be used for--
            (1) payments required under subsection (a); and
            (2) acquisitions of property and interests required 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 section 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 reimburse 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 interest 
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 amendment 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 
alternative.

SEC. 10. DEFINITIONS.

    For the purpose of this Act:
            (1) The term ``the Acts'' means the Endangered 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 Secretary or 
        Administrator with jurisdiction or authority to take a final 
        agency action under the Endangered Species Act of 1973 (16 
        U.S.C. 1531 et seq.) or section 404 of the Federal Water 
        Pollution Control Act (33 U.S.C. 1344).
            (3) The term ``Private property owner'' means a non-Federal 
        person (other than an officer, employee, 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 paragraph (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 following new subsection:
    ``(j) Notwithstanding any other provision of this section, when the 
Secretary enters into a management agreement 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 
lessees of the property that is subject to the management agreement and 
shall provide an opportunity for each private property owner or lessee 
to participate in the management agreement.''.
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