[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 22 Introduced in Senate (IS)]

  1st Session
                                 S. 22

 To require Federal agencies to prepare private property taking impact 
                               analyses.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 4, 1995

Mr. Dole (for himself, Mr. Heflin, Mr. Brown, Mr. Burns, Mr. Hatch, Mr. 
Nickles, Mr. Craig, and Mrs. Kassebaum) introduced the following bill; 
  which was read twice and referred to the Committee on Governmental 
                                Affairs

_______________________________________________________________________

                                 A BILL


 
 To require Federal agencies to prepare private property taking impact 
                               analyses.

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

SECTION 1. PRIVATE PROPERTY RIGHTS.

    (a) Short Title.--This Act may be cited as the ``Private Property 
Rights Act of 1995''.
    (b) Findings.--The Congress finds that--
            (1) the protection of private property from a taking by the 
        Government without just compensation is an integral protection 
        for private citizens incorporated into the United States 
        Constitution by the fifth amendment and made applicable to the 
        States by the fourteenth amendment; and
            (2) Federal agencies should take into consideration the 
        impact of governmental actions on the use and ownership of 
        private property.
    (c) Purpose.--The Congress, recognizing the important role that the 
use and ownership of private property plays in ensuring the economic 
and social well-being of the Nation, declares that the Federal 
Government should protect the health, safety, and welfare of the public 
and, in doing so, to the extent practicable, avoid takings of private 
property.
    (d) Definitions.--For purposes of this section--
            (1) the term ``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; and
            (2) the term ``taking of private property'' means any 
        action whereby private property is taken in such a way as to 
        require compensation under the fifth amendment to the United 
        States Constitution.
    (e) Private Property Taking Impact Analysis.--
            (1) In general.--The Congress authorizes and directs that, 
        to the fullest extent possible--
                    (A) the policies, regulations, and public laws of 
                the United States shall be interpreted and administered 
                in accordance with the policies under this title; and
                    (B) subject to paragraph (2), all agencies of the 
                Federal Government shall complete a private property 
                taking impact analysis before issuing or promulgating 
                any policy, regulation, proposed legislation, or 
                related agency action which is likely to result in a 
                taking of private property.
            (2) Nonapplication.--The provisions of paragraph (1)(B) 
        shall not apply to--
                    (A) an action in which the power of eminent domain 
                is formally exercised;
                    (B) an action taken--
                            (i) with respect to property held in trust 
                        by the United States; or
                            (ii) in preparation for, or in connection 
                        with, treaty negotiations with foreign nations;
                    (C) a law enforcement action, including seizure, 
                for a violation of law, of property for forfeiture or 
                as evidence in a criminal proceeding;
                    (D) a communication between an agency and a State 
                or local land-use planning agency concerning a planned 
                or proposed State or local activity that regulates 
                private property, regardless of whether the 
                communication is initiated by an agency or is 
                undertaken in response to an invitation by the State or 
                local authority;
                    (E) the placement of a military facility or a 
                military activity involving the use of solely Federal 
                property;
                    (F) any military or foreign affairs function 
                (including a procurement function under a military or 
                foreign affairs function), but not including the civil 
                works program of the Army Corps of Engineers; and
                    (G) any case in which there is an immediate threat 
                to health or safety that constitutes an emergency 
                requiring immediate response or the issuance of a 
                regulation under section 553(b)(B) of title 5, United 
                States Code, if the taking impact analysis is completed 
                after the emergency action is carried out or the 
regulation is published.
            (3) Content of analysis.--A private property taking impact 
        analysis shall be a written statement that includes--
                    (A) the specific purpose of the policy, regulation, 
                proposal, recommendation, or related agency action;
                    (B) an assessment of the likelihood that a taking 
                of private property will occur under such policy, 
                regulation, proposal, recommendation, or related agency 
                action;
                    (C) an evaluation of whether such policy, 
                regulation, proposal, recommendation, or related agency 
                action is likely to require compensation to private 
                property owners;
                    (D) alternatives to the policy, regulation, 
                proposal, recommendation, or related agency action that 
                would achieve the intended purposes of the agency 
                action and lessen the likelihood that a taking of 
                private property will occur; and
                    (E) an estimate of the potential liability of the 
                Federal Government if the Government is required to 
                compensate a private property owner.
            (4) Submission to omb.--Each agency shall provide the 
        analysis required by this section as part of any submission 
        otherwise required to be made to the Office of Management and 
        Budget in conjunction with the proposed regulation.
            (5) Public availability of analysis.--An agency shall--
                    (A) make each private property taking impact 
                analysis available to the public; and
                    (B) to the greatest extent practicable, transmit a 
                copy of such analysis to the owner or any other person 
                with a property right or interest in the affected 
                property.
    (f) Guidance and Reporting Requirements.--
            (1) Guidance.--The Attorney General shall provide legal 
        guidance in a timely manner, in response to a request by an 
        agency, to assist the agency in complying with this section.
            (2) Reporting.--Not later than 1 year after the date of 
        enactment of this Act and at the end of each 1-year period 
        thereafter, each agency shall provide a report to the Director 
        of the Office of Management and Budget and the Attorney General 
        identifying each agency action that has resulted in the 
        preparation of a taking impact analysis, the filing of a taking 
        claim, or an award of compensation pursuant to the Just 
        Compensation Clause of the Fifth Amendment to the Constitution. 
        The Director of the Office of Management and Budget and the 
        Attorney General shall publish in the Federal Register, on an 
        annual basis, a compilation of the reports of all agencies made 
        pursuant to this paragraph.
    (g) Presumptions in Proceedings.--For the purpose of any agency 
action or administrative or judicial proceeding, there shall be a 
rebuttable presumption that the costs, values, and estimates in any 
private property takings impact analysis shall be outdated and 
inaccurate, if--
            (1) such analysis was completed 5 years or more before the 
        date of such action or proceeding; and
            (2) such costs, values, or estimates have not been modified 
        within the 5-year period preceding the date of such action or 
        proceeding.
    (h) Rules of Construction.--Nothing in this Act shall be construed 
to--
            (1) limit any right or remedy, constitute a condition 
        precedent or a requirement to exhaust administrative remedies, 
        or bar any claim of any person relating to such person's 
        property under any other law, including claims made under this 
        Act, section 1346 or 1402 of title 28, United States Code, or 
        chapter 91 of title 28, United States Code; or
            (2) constitute a conclusive determination of--
                    (A) the value of any property for purposes of an 
                appraisal for the acquisition of property, or for the 
                determination of damages; or
                    (B) any other material issue.
    (i) Effective Date.--The provisions of this Act shall take effect 
120 days after the date of the enactment of this Act.
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