[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 135 Introduced in Senate (IS)]







104th CONGRESS
  1st Session
                                 S. 135

     To establish a uniform and more efficient Federal process for 
 protecting property owners' rights guaranteed by the fifth amendment.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 4, 1995

   Mr. Hatch introduced the following bill; which was read twice and 
               referred 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 Representatives 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 essential to a 
        free society and is an integral part of the American tradition 
        of liberty and limited government;
            (2) the framers of the United States Constitution, in order 
        to protect private property and liberty, devised a framework of 
        Government designed to diffuse 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 Government 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 private 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 delineates 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 between 
                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 recover 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 United States and the Court of Federal Claims 
        jurisdiction 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 jurisdiction to entertain a 
        suit which is pending in another 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 United States Government;
            (2) establish a clear, uniform, and efficient judicial 
        process whereby aggrieved property owners can obtain 
        vindication of property rights guaranteed by the fifth 
        amendment to the United States Constitution 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 compensate property 
        owners for the deprivation of property rights that result from 
        State agencies' enforcement 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, Government corporation, Government-
        controlled corporation, or other establishment in the executive 
        branch of the United States Government;
            (2) ``agency action'' means any action or decision taken by 
        an agency that--
                    (A) takes a property right; or
                    (B) unreasonably impedes the use of property or the 
                exercise of property interests or significantly 
                interferes with investment-backed expectations;
            (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 calculated 
                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 promulgated; 
                or
                    (B) the permit, license, authorization, or 
                governmental permission is denied or suspended;
            (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 interests 
                        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, including 
                minerals, timber, fodder, crops, oil and gas, coal, or 
                geothermal energy;
                    (D) property rights provided by, or memorialized 
                in, a contract, except that such rights shall not be 
                construed under this title to prevent the United States 
                from prohibiting the formation 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 injuries 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 mutually reinforcing 
                understandings sufficiently well-grounded in law to 
                back a claim of interest;
            (6) ``State agency'' means any State department, agency, 
        political subdivision, or instrumentality that--
                    (A) carries out or enforces a regulatory program 
                required under Federal law;
                    (B) is delegated administrative or substantive 
                responsibility under a Federal regulatory program; or
                    (C) receives Federal funds in connection with a 
                regulatory program established by a State,
        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 directly related to the 
        taking of private property seeking 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 compensation under the 
                fifth amendment to the United States Constitution or 
                under this Act, including by physical invasion, 
                regulation, exaction, 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 agency, 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 advance 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 constitutional 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 between 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 productive use of 
        the property or that part of the property 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) 20 percent or more with respect to the value 
                immediately prior to the governmental action; or
                    (ii) $10,000, or more with respect to the value 
                immediately prior to the governmental action; or
            (E) under any other circumstance where a taking 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 showing the nexus 
        between the stated governmental purpose of the governmental 
        interest and the impact on the proposed use of private 
        property;
            (B) subsection (a)(2)(B), with regard to showing the 
        proportionality between the exaction and the impact of the 
        proposed use of the property; and
            (C) subsection (a)(2)(C), with regard to showing 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 compensation 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 nuisance 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 directly takes 
property or a portion of property under subsection (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 action 
                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 United 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 appropriation for the fiscal year in which the 
property deprivation 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 agency action that adversely 
affects the owner's interest in private 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 Congress 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 sentence 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 
        Constitution or any Act of Congress or any regulation of an 
        executive department, or upon any expressed 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 department 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 judicial 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 (including 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 accordance with the 
        alternative dispute resolution procedures established by the 
        American Arbitration Association; and
            (3) in no event shall arbitration be a condition precedent 
        or an administrative procedure to be exhausted before the 
        filing of a civil action under this Act.
    (b) Compensation as a Result of Negotiated Settlements or 
Arbitration.--The funds used for compensation to the owner (as 
determined by the appropriate official of the Federal agency or 
department) shall be taken from the responsible agency's budget for 
that fiscal year or transferred to the agency from the Judgment Fund 
for payment to the owner.
    (c) Review of Arbitration.--Appeal from arbitration decisions shall 
be to the United States District Court or the United States Court of 
Federal Claims in the manner prescribed by law for the claim under this 
Act.
    (d) Payment of Certain Compensation.--In any appeal under 
subsection (c) in which the court does not rule for the Federal agency 
or department, the amount of the award of compensation determined by 
the arbitrator shall be paid from funds made available to the Federal 
agency or department by appropriation in lieu of being paid from the 
Judgment Fund, except that if no such funds have been made available to 
the agency or department such payment shall be made from the Judgment 
Fund.

SEC. 10. RULES OF CONSTRUCTION.

    Nothing in this Act shall be construed to interfere with the 
authority of any State to create additional property rights.

SEC. 11. SEVERABILITY.

    If any provision of this Act, an amendment made by this Act, or the 
application of such provision or amendment to any person or 
circumstance is held to be unconstitutional, 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 thereby.

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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