[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 605 Introduced in Senate (IS)]







104th CONGRESS
  1st Session
                                 S. 605

     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

                             March 23, 1995

Mr. Dole (for himself, Mr. Hatch, Mr. Heflin, Mr. Lott, Mr. Gramm, Mr. 
 Brown, Mr. Craig, Mr. Shelby, Mr. Nickles, Mr. Kyl, Mr. Abraham, Mr. 
 Thurmond, Mr. Inhofe, Mr. Packwood, Mr. Warner, Mr. Coats, Mr. Burns, 
Mr. Thomas, Mr. Pressler, Mrs. Hutchison, Mr. Hatfield, Mr. Grams, Mr. 
   Frist, Mr. McConnell, Mr. Ashcroft, Mr. Mack, Mr. Murkowski, Mr. 
   Bennett, Mr. Kempthorne, Mr. Grassley, Mr. Bond, and Mr. Stevens) 
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 ``Omnibus Property Rights Act of 
1995''.

                     TITLE I--FINDINGS AND PURPOSES

SEC. 101. 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 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 both to 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; and
            (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.

SEC. 102. PURPOSE.

    The purpose of this Act is to encourage, support, and promote the 
private ownership of property by ensuring the constitutional and legal 
protection of private property by the United States Government by--
            (1) the establishment of a new Federal judicial claim in 
        which to vindicate and protect property rights;
            (2) the simplification and clarification of court 
        jurisdiction over property right claims;
            (3) the establishment of an administrative procedure that 
        requires the Federal Government to assess the impact of 
        government action on holders of private property;
            (4) the minimization, to the greatest extent possible, of 
        the taking of private property by the Federal Government and to 
        ensure that just compensation is paid by the Government for any 
        taking; and
            (5) the establishment of administrative compensation 
        procedures involving the enforcement of the Endangered Species 
        Act of 1973 and section 404 of the Federal Water Pollution 
        Control Act.

              TITLE II--PROPERTY RIGHTS LITIGATION RELIEF

SEC. 201. FINDINGS.

    The Congress finds that--
            (1) property rights have been abrogated by the application 
        of laws, regulations, and other actions by the Federal 
        Government that adversely affect the value of private property;
            (2) certain provisions of sections 1346 and 1402 and 
        chapter 91 of title 28, United States Code (commonly known as 
        the Tucker Act), that delineate 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;
            (3) 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;
            (4) property owners cannot fully vindicate property rights 
        in one court;
            (5) property owners should be able to fully recover for a 
        taking of their private property in one court;
            (6) 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
            (7) 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. 202. PURPOSES.

    The purposes of this title are to--
            (1) 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;
            (2) amend the Tucker Act, including the repeal of section 
        1500 of title 28, United States Code;
            (3) rectify the constitutional imbalance between the 
        Federal Government and the States; and
            (4) 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. 203. DEFINITIONS.

    For purposes of this title 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;
            (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'', ``taking'', or 
        ``take''--
                    (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. 204. COMPENSATION FOR TAKEN PROPERTY.

    (a) In General.--No agency or State agency, shall take private 
property except for public use and with just compensation to the 
property owner. A property owner shall receive just compensation if--
            (1) as a consequence of an action 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 33 percent 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) No Claim Against State or State Instrumentality.--No action may 
be filed under this section against a State agency for carrying out the 
functions described under section 203(6).
    (c) 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.
    (d) 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.
    (e) 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.
    (f) Source of Compensation.--Awards of compensation referred to in 
this section, whether by judgment, settlement, or administrative 
action, shall be promptly paid by the agency out of currently available 
appropriations supporting the activities giving rise to the claims for 
compensation. If insufficient funds are available to the agency in the 
fiscal year in which the award becomes final, the agency shall either 
pay the award from appropriations available in the next fiscal year or 
promptly seek additional appropriations for such purpose.

SEC. 205. 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 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 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. 206. STATUTE OF LIMITATIONS.

    The statute of limitations for actions brought under this title 
shall be 6 years from the date of the taking of private property.

SEC. 207. ATTORNEYS' FEES AND COSTS.

    The court, in issuing any final order in any action brought under 
this title, shall award costs of litigation (including reasonable 
attorney and expert witness fees) to any prevailing plaintiff.

SEC. 208. RULES OF CONSTRUCTION.

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

SEC. 209. EFFECTIVE DATE.

    The provisions of this title and amendments made by this title 
shall take effect on the date of the enactment of this Act and shall 
apply to any agency action that occurs after such date.

               TITLE III--ALTERNATIVE DISPUTE RESOLUTION

SEC. 301. ALTERNATIVE DISPUTE RESOLUTION.

    (a) In General.--Either party to a dispute over a taking of private 
property as defined under this Act or litigation commenced under title 
II of 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 Arbitration.--The amount of 
arbitration awards shall be paid from the responsible agency's 
currently available appropriations supporting the agency's activities 
giving rise to the claim for compensation. If insufficient funds are 
available to the agency in the fiscal year in which the award becomes 
final, the agency shall either pay the award from appropriations 
available in the next fiscal year or promptly seek additional 
appropriations for such purpose.
    (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), the amount of the award of compensation shall be 
promptly paid by the agency from appropriations supporting the 
activities giving rise to the claim for compensation currently 
available at the time of final action on the appeal. If insufficient 
funds are available to the agency in the fiscal year in which the award 
becomes final, the agency shall either pay the award from 
appropriations available in the next fiscal year or promptly seek 
additional appropriations for such purpose.

           TITLE IV--PRIVATE PROPERTY TAKING IMPACT ANALYSIS

SEC. 401. FINDINGS AND PURPOSE.

    The Congress finds that--
            (1) the Federal Government should protect the health, 
        safety, welfare, and rights of the public; and
            (2) to the extent practicable, avoid takings of private 
        property by assessing the effect of government action on 
        private property rights.

SEC. 402. DEFINITIONS.

    For purposes of this title the term--
            (1) ``agency'' means an agency as defined under section 203 
        of this Act, but shall not include the General Accounting 
        Office;
            (2) ``rule'' has the same meaning as such term is defined 
        under section 551(4) of title 5, United States Code; and
            (3) ``taking of private property'' has the same meaning as 
        such term is defined under section 203 of this Act.

SEC. 403. PRIVATE PROPERTY TAKING IMPACT ANALYSIS.

    (a) In General.--(1) 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) 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 study or similar effort or planning activity;
            (E) 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;
            (F) the placement of a military facility or a military 
        activity involving the use of solely Federal property;
            (G) 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
            (H) 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) 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) Each agency shall provide an analysis required under this 
section as part of any submission otherwise required to be made to the 
Office of Management and Budget in conjunction with a proposed 
regulation.
    (b) Guidance and Reporting Requirements.--
            (1) The Attorney General of the United States 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) No 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 submit a report to the Director of the Office of 
        Management and Budget and the Attorney General of the United 
        States 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 under the just compensation 
        clause of the fifth amendment of the United States 
        Constitution. The Director of the Office of Management and 
        Budget and the Attorney General of the United States shall 
        publish in the Federal Register, on an annual basis, a 
        compilation of the reports of all agencies submitted under this 
        paragraph.
    (c) Public Availability of Analysis.--An agency shall--
            (1) make each private property taking impact analysis 
        available to the public; and
            (2) 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.
    (d) 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.

SEC. 404. DECISIONAL CRITERIA AND AGENCY COMPLIANCE.

    (a) In General.--No final rule shall be promulgated if enforcement 
of the rule could reasonably be construed to require an uncompensated 
taking of private property as defined by this Act.
    (b) Compliance.--In order to meet the purposes of this Act as 
expressed in section 401 of this title, all agencies shall--
            (1) review, and where appropriate, re-promulgate all 
        regulations that result in takings of private property under 
        this Act, and reduce such takings of private property to the 
        maximum extent possible within existing statutory requirements;
            (2) prepare and submit their budget requests consistent 
        with the purposes of this Act as expressed in section 401 of 
        this title for fiscal year 1997 and all fiscal years 
        thereafter; and
            (3) within 120 days of the effective date of this section, 
        submit to the appropriate authorizing and appropriating 
        committees of the Congress a detailed list of statutory changes 
        that are necessary to meet fully the purposes of section 401 of 
        this title, along with a statement prioritizing such amendments 
        and an explanation of the agency's reasons for such 
        prioritization.

SEC. 405. RULES OF CONSTRUCTION.

    Nothing in this title 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.

SEC. 406. STATUTE OF LIMITATIONS.

    No action may be filed in a court of the United States to enforce 
the provisions of this title on or after the date occurring 6 years 
after the date of the submission of the applicable private property 
taking impact analysis to the Office of Management and Budget.

     TITLE V--PRIVATE PROPERTY OWNERS ADMINISTRATIVE BILL OF RIGHTS

SEC. 501. FINDINGS AND PURPOSE.

    (a) Findings.--The Congress finds that--
            (1) a number of Federal environmental programs, 
        specifically programs administered under 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 property;
            (2) as 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;
            (3) 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 United States Constitution;
            (4) many private property owners do not have the financial 
        resources or the extensive commitment of time to proceed in 
        litigation against the Federal Government;
            (5) a clear Federal policy is needed to guide and direct 
        Federal agencies with respect to the implementation of 
        environmental laws that directly impact private property;
            (6) all private property owners should and are required to 
        comply with current nuisance laws and should not use property 
        in a manner that harms their neighbors;
            (7) nuisance laws have traditionally been enacted, 
        implemented, and enforced at the State and local level where 
        such laws are best able to protect the rights of all private 
        property owners and local citizens; and
            (8) traditional pollution control laws are intended to 
        protect the general public's health and physical welfare, and 
        current habitat protection programs are intended to protect the 
        welfare of plant and animal species.
    (b) Purposes.--The purposes of this title are to--
            (1) provide a consistent Federal policy to encourage, 
        support, and promote the private ownership of property; and
            (2) to establish an administrative process and remedy to 
        ensure that the constitutional and legal rights of private 
        property owners are protected by the Federal Government and 
        Federal employees, agents, and representatives.

SEC. 502. DEFINITIONS.

    For purposes of this title the term--
            (1) ``the Acts'' 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);
            (2) ``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) ``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'' means a non-Federal person 
        (other than an officer, employee, agent, department, or 
        instrumentality of a State, municipality, or political 
        subdivision of a State, acting in an official capacity or a 
        State, municipality, or subdivision of a State) that--
                    (A) owns property referred to under paragraph (5) 
                (A) or (B); or
                    (B) holds property referred to under paragraph 
                (5)(C);
            (5) ``property'' means--
                    (A) land;
                    (B) any interest in land; and
                    (C) the right to use or the right to receive water; 
                and
            (6) ``qualified agency action'' means an agency action (as 
        that term is defined in section 551(13) of title 5, United 
        States Code) that is taken--
                    (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. 503. PROTECTION OF PRIVATE PROPERTY RIGHTS.

    (a) In General.--In implementing and enforcing the Acts, each 
agency head shall--
            (1) comply with applicable State and tribal government 
        laws, including laws relating to private property rights and 
        privacy; and
            (2) administer and implement the Acts in a manner that has 
        the least impact on private property owners' constitutional and 
        other legal rights.
    (b) Final Decisions.--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 in 
administering and implementing this Act.

SEC. 504. PROPERTY OWNER CONSENT FOR ENTRY.

    (a) In General.--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 shall be made available at no cost, if requested by 
        the private property owner.
    (b) Nonapplication.--Subsection (a) does not prohibit entry onto 
property for the purpose of obtaining consent or providing notice 
required under subsection (a).

SEC. 505. 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 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 accuracy 
        of the information under paragraph (1)(C).

SEC. 506. 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, 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.
            ``(3) An owner of private property may receive 
        compensation, if appropriate, subject to the provisions of 
        section 508 of the Emergency Property Owners Relief Act of 
        1995.''.

SEC. 507. 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, 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:
                    ``(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 finding of jeopardy in any consultation 
                on an agency action affecting a particular parcel of 
                property under section 7(a)(2) or any reasonable and 
                prudent alternative resulting from such finding.
                    ``(E) Any incidental `take' statement, and any 
                reasonable and prudent measures included therein, 
                issued in any consultation affecting a particular 
                parcel of property under section 7(a)(2).
                    ``(F) The imposition of an administrative penalty.
                    ``(G) 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.
            ``(3) An owner of private property may receive 
        compensation, if appropriate, subject to the provisions of 
        section 508 of the Emergency Property Owners Relief Act of 
        1995.''.

SEC. 508. 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 33 
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 the standards set forth in section 204 of this Act.
    (b) Time Limitation for Compensation Request.--No later than 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) Offer of Agency Head.--No later than 180 days after the receipt 
of a request for compensation, the agency head shall stay the decision 
and shall provide to the private property owner--
            (1) an offer to purchase 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 Owner's Response.--(1) No later than 60 days 
after the date of receipt of the agency head's offers under subsection 
(c) (1) and (2) the private property owner shall accept one of the 
offers or reject both offers.
    (2) 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--
            (A) the agency head and a private property owner as to the 
        amount, if any, of compensation owed to the private property 
        owner; and
            (B) whether 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) Judgment.--A qualified agency action of an agency head that 
deprives a private property owner of property as described under 
subsection (a), is deemed, at the option of the private property owner, 
to be a taking under the United States Constitution and a judgment 
against the United States if the private property owner--
            (1) accepts the agency head's offer 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, out of currently available appropriations supporting the 
activities giving rise to the claim for compensation. The agency head 
shall pay to the extent of available funds any compensation under this 
section not later than 60 days after the date of the acceptance or the 
date of the issuance of the decision, respectively. If insufficient 
funds are available to the agency in the fiscal year in which the award 
becomes final, the agency shall either pay the award from 
appropriations available in the next fiscal year or promptly seek 
additional appropriations for such purpose.
    (g) 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; or
            (2) a payment of an amount equal to the reduction in value.

SEC. 509. 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.''.

SEC. 510. ELECTION OF REMEDIES.

    Nothing in this title shall be construed to--
            (1) deny any person the right, as a condition precedent or 
        as a requirement to exhaust administrative remedies, to proceed 
        under title II or III of this Act;
            (2) bar any claim of any person relating to such person's 
        property under any other law, including claims made under 
        section 1346 or 1402 of title 28, United States Code, or 
        chapter 91 of title 28, United States Code; or
            (3) constitute a conclusive determination of--
                    (A) the value of property for purposes of an 
                appraisal for the acquisition of property, or for the 
                determination of damages; or
                    (B) any other material issue.

                        TITLE VI--MISCELLANEOUS

SEC. 601. 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. 602. EFFECTIVE DATE.

    Except as otherwise provided in this Act, the provisions of this 
Act shall take effect on the date of enactment and shall apply to any 
agency action of the United States Government after such date.
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