[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 239 Introduced in Senate (IS)]







104th CONGRESS
  1st Session
                                 S. 239

  To require certain Federal agencies to protect the right of private 
                property owners, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

             January 18 (legislative day, January 10), 1995

 Mr. Shelby (for himself, Mr. Nickles, Mr. Burns, Mrs. Hutchison, Mr. 
   Lott, Mr. Packwood, Mr. Pressler, Mr. Inhofe, Mr. Thomas, and Mr. 
Brown) introduced the following bill; which was read twice and referred 
                to the Committee on Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
  To require certain Federal agencies to protect the right of private 
                property owners, and for other purposes.

    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.--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, which 
        prohibits 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 the implementation by the agencies of 
        environmental laws that directly impact private property.
            (6) While all private property owners should and must abide 
        by 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 the laws 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 health and physical welfare of the general 
        public, habitat protection programs in effect on the date of 
        enactment of this Act are intended to protect the welfare of 
        plant and animal species, while allowing recreational and 
        aesthetic opportunities for the public.
    (b) Purpose.--The purpose of this Act is to provide a consistent 
Federal policy to--
            (1) encourage, support, and promote the private ownership 
        of property; and
            (2) ensure that the constitutional and legal rights of 
        private property owners are protected by the Federal Government 
        and employees, agents, and representatives of the Federal 
        Government.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Agency head.--The term ``agency head'' means the 
        Secretary or Administrator with jurisdiction or authority to 
        take a final agency action under 1 or more of the applicable 
        provisions of law.
            (2) Applicable provisions of law.--The term ``applicable 
        provisions of law'' means 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).
            (3) Non-federal person.--The term ``non-Federal person'' 
        means a person other than an officer, employee, agent, 
        department, or instrumentality of--
                    (A) the Federal Government; or
                    (B) a foreign government.
            (4) Private property owner.--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 political subdivision of a State) that--
                    (A) owns property referred to in subparagraph (A) 
                or (B) of paragraph (5); or
                    (B) holds property referred to in paragraph (5)(C).
            (5) Property.--The term ``property'' means--
                    (A) land;
                    (B) any interest in land; and
                    (C) any proprietary water right.
            (6) Qualified agency action.--The term ``qualified agency 
        action'' means an agency action (as defined in section 551(13) 
        of title 5, United States Code) that is taken under 1 or more 
        of the applicable provisions of law.

SEC. 4. PROTECTION OF PRIVATE PROPERTY RIGHTS.

    (a) In General.--In implementing and enforcing the applicable 
provisions of law, each agency head shall--
            (1) comply with applicable State and tribal government 
        laws, including laws relating to private property rights and 
        privacy; and
            (2) implement and enforce the applicable provisions of law 
        in a manner that has the least impact on the constitutional and 
        other legal rights of private property owners.
    (b) Regulations.--Each agency head shall develop and implement 
regulations for ensuring that the constitutional and other legal rights 
of private property owners are protected in any case in which the 
agency head makes, or participates with other agencies in the making 
of, any final decision that restricts the use of private property.

SEC. 5. PROPERTY OWNER CONSENT FOR ENTRY.

    (a) In General.--Subject to subsection (b), 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 the entry;
            (2) after providing the consent, been provided notice of 
        the entry; and
            (3) been notified that any raw data collected from the 
        property must be made available to the private property owner 
        at no cost, if requested by the private property owner.
    (b) Entry for Consent or Notice.--Subsection (a) shall not prohibit 
entry onto property for the purpose of obtaining consent or providing 
notice required under subsection (a).

SEC. 6. RIGHT TO REVIEW AND DISPUTE DATA COLLECTED FROM PRIVATE 
              PROPERTY.

    An agency head may not use data that is collected from privately 
owned property to implement or enforce any of the applicable provisions 
of law, unless the agency head has--
            (1) 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) determined that the information is accurate, if the 
        private property owner disputes the accuracy of the information 
        pursuant to paragraph (1)(C).

SEC. 7. 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:
    ``(u) Administrative Appeals.--
            ``(1) In general.--The Secretary or the Administrator, 
        after notice and opportunity for public comment, shall issue 
        rules to establish procedures to provide private property 
        owners, or authorized representatives of the owners, 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) Decision.--The 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 that is in the vicinity of the property 
        involved in the action.
            ``(3) Definitions.--In this subsection:
                    ``(A) Non-federal person.--The term `non-Federal 
                person' means a person other than an officer, employee, 
                agent, department, or instrumentality of--
                            ``(i) the Federal Government; or
                            ``(ii) a foreign government.
                    ``(B) Private property owner.--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 
                political subdivision of a State) that--
                            ``(i) owns property referred to in clause 
                        (i) or (ii) of subparagraph (C); or
                            ``(ii) holds property referred to in 
                        subparagraph (C)(iii).
                    ``(C) Property.--The term `property' means--
                            ``(i) land;
                            ``(ii) any interest in land; and
                            ``(iii) any proprietary water right.''.

SEC. 8. 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:
    ``(i) Administrative Appeals.--
            ``(1) In general.--The Secretary, after notice and 
        opportunity for public comment, shall issue rules to establish 
        procedures to provide private property owners, or authorized 
        representatives of the owners, 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 species listed under 
                section 4.
                    ``(B) The denial of a permit for an incidental 
                take.
                    ``(C) The terms and conditions of a permit for an 
                incidental take.
                    ``(D) The imposition of an administrative penalty.
                    ``(E) The imposition of an order prohibiting or 
                substantially limiting the use of the property.
            ``(2) Decision.--The 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 that is in the vicinity of the parcel 
        of property involved in the action.
            ``(3) Definitions.--In this subsection:
                    ``(A) Non-federal person.--The term `non-Federal 
                person' means a person other than an officer, employee, 
                agent, department, or instrumentality of--
                            ``(i) the Federal Government; or
                            ``(ii) a foreign government.
                    ``(B) Private property owner.--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 
                political subdivision of a State) that--
                            ``(i) owns property referred to in clause 
                        (i) or (ii) of subparagraph (C); or
                            ``(ii) holds property referred to in 
                        subparagraph (C)(iii).
                    ``(C) Property.--The term `property' means--
                            ``(i) land;
                            ``(ii) any interest in land; and
                            ``(iii) any proprietary water right.''.

SEC. 9. COMPENSATION FOR TAKING OF PRIVATE PROPERTY.

    (a) Eligibility.--A private property owner that, as a consequence 
of a final qualified agency action of an agency head, is deprived of 
$10,000, or 20 percent or more, of the fair market value of the 
affected portion of the property of the owner, as determined by a 
qualified appraisal expert, shall be entitled to receive compensation 
in accordance with this section.
    (b) Deadline.--Not later than 90 days after receipt of a final 
decision of an agency head that deprives a private property owner of 
the 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.--Not later than 180 days after the receipt 
of a request for compensation under subsection (b), the agency head 
shall stay the decision and provide to the private property owner--
            (1) an offer to purchase the affected property of the 
        private property owner at the fair market value that would 
        apply if there were no use restrictions under the applicable 
        provisions of law; and
            (2) an offer to compensate the private property owner for 
        the difference between the fair market value of the property 
        without the restrictions and the fair market value of the 
        property with the restrictions.
    (d) Private Property Owner's Response.--
            (1) In general.--A private property owner shall have 60 
        days after the date of receipt of the offers of the agency head 
        under subsection (c) to accept 1 of the offers or to reject 
        both offers.
            (2) Submission to arbitration.--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 the association. For the 
        purposes of this section, an arbitration shall be 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 the purposes of this section the private property 
        owner has been deprived of the fair market value or viable use 
        of property for which compensation is required under subsection 
        (a).
    (e) Judgment.--A qualified agency action of an agency head that 
deprives a private property owner of property as described in 
subsection (a), shall be deemed, at the option of the private property 
owner, to be a taking under the Constitution and a judgment against the 
United States if the private property owner--
            (1) accepts an offer of the agency head under subsection 
        (c); or
            (2) submits to arbitration under subsection (d).
    (f) 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 arbitrator 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.
    (g) Form of Payment.--Payment under this section shall be in a form 
agreed to by the agency head and the private property owner and may be 
in the form of--
            (1) payment of an amount that is 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) payment of an amount that is equal to the reduction in 
        value of the property; or
            (3) conveyance of real property or an interest in real 
        property that has a fair market value equal to the amount 
        referred to in paragraph (1) or (2).
    (h) Other Rights Preserved.--This section shall 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.--If 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 
United States Court of Federal Claims for the claim, the agency head 
who made the final agency decision that results in the taking shall 
reimburse, from funds appropriated to the agency for the 2 fiscal years 
following payment of the compensation, the Treasury of the United 
States for amounts appropriated under section 1304 of title 31, United 
States Code, to pay the judgment against the United States.

SEC. 10. PRIVATE PROPERTY OWNER PARTICIPATION IN COOPERATIVE 
              AGREEMENTS.

    Section 6(b) of the Endangered Species Act of 1973 (16 U.S.C. 
1535(b)) is amended--
            (1) by striking ``The Secretary'' and inserting the 
        following:
            ``(1) In general.--The Secretary''; and
            (2) by adding at the end the following:
            ``(2) Participation by private property owners.--
                    ``(A) In general.--Notwithstanding any other 
                provision of this section, in any case in which the 
                Secretary enters into a management agreement under 
                paragraph (1) 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.
                    ``(B) Definitions.--In this paragraph:
                            ``(i) Non-federal person.--The term `non-
                        Federal person' means a person other than an 
                        officer, employee, agent, department, or 
                        instrumentality of--
                                    ``(I) the Federal Government; or
                                    ``(II) a foreign government.
                            ``(ii) Private property owner.--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 political 
                        subdivision of a State) that--
                                    ``(I) owns property referred to in 
                                subclause (I) or (II) of clause (iii); 
                                or
                                    ``(II) holds property referred to 
                                in clause (iii)(III).
                            ``(iii) Property.--The term `property' 
                        means--
                                    ``(I) land;
                                    ``(II) any interest in land; and
                                    ``(III) any proprietary water 
                                right.''.
                                 <all>
S 239 IS----2