[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 709 Introduced in Senate (IS)]







105th CONGRESS
  1st Session
                                 S. 709

To protect private property rights guaranteed by the fifth amendment to 
   the Constitution by requiring Federal agencies to prepare private 
  property taking impact analyses and by allowing expanded access to 
                            Federal courts.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 7, 1997

   Mr. Hagel introduced the following bill; which was read twice and 
           referred to the Committee on Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
To protect private property rights guaranteed by the fifth amendment to 
   the Constitution by requiring Federal agencies to prepare private 
  property taking impact analyses and by allowing expanded access to 
                            Federal courts.

    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 Rights Act of 
1997''.

SEC. 2. FINDINGS.

    The Congress finds that--
            (1) the ownership of private property plays an important 
        role in the economic and social well-being of the Nation;
            (2) 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;
            (3) Federal agency actions that restrict the use of private 
        property and result in a significant diminution in value of 
        such property constitute a taking of that property and should 
        be properly compensated;
            (4) Federal agencies should consider the impact of agency 
        actions, including regulations, on the use and ownership of 
        private property; and
            (5) owners of private property that is taken by a Federal 
        agency action should be permitted to seek relief in Federal 
        district court.

SEC. 3. STATEMENT OF POLICY.

    The policy of the Federal Government is to protect the health, 
safety, and general welfare of the public in a manner that, to the 
extent practicable, avoids takings of private property.

SEC. 4. DEFINITIONS.

    For purposes of this Act--
            (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;
            (2) the term ``agency action'' means any action, inaction, 
        or decision taken by an agency and includes such an action, 
        inaction, or decision taken by, or pursuant to--
                    (A) a statute, rule, regulation, order, guideline, 
                or policy; or
                    (B) the issuance, denial, or suspension of any 
                permit, license, or authorization;
            (3) the term ``owner'' means the person with title, 
        possession, or other property rights in property affected by 
        any taking of such property; and
            (4) 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.

SEC. 5. REQUIREMENT FOR PRIVATE PROPERTY TAKING IMPACT ANALYSIS.

    (a) In General.--To the fullest extent possible--
            (1) the policies, regulations, and public laws of the 
        United States shall be interpreted and administered in 
        accordance with the policies under this Act; and
            (2) subject to subsection (b), each agency shall complete a 
        private property taking impact analysis before taking any 
        agency action (including the promulgation of a regulation) 
        which is likely to result in a taking of private property.
    (b) Nonapplication.--Subsection (a)(2) shall not apply to--
            (1) an action in which the power of eminent domain is 
        formally exercised;
            (2) an action taken--
                    (A) with respect to property held in trust by the 
                United States; or
                    (B) in preparation for, or in connection with, 
                treaty negotiations with foreign nations;
            (3) a law enforcement action, including seizure, for a 
        violation of law, of property for forfeiture or as evidence in 
        a criminal proceeding;
            (4) 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;
            (5) the placement of a military facility or a military 
        activity involving the use of solely Federal property;
            (6) 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
            (7) 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.
    (c) Content of Analysis.--A private property taking impact analysis 
shall be a written statement that includes--
            (1) the specific purpose of the agency action;
            (2) an assessment of the likelihood that a taking of 
        private property will occur under such agency action;
            (3) an evaluation of whether such agency action is likely 
        to require compensation to private property owners;
            (4) alternatives to the agency action that would--
                    (A) achieve the intended purposes of the agency 
                action; and
                    (B) lessen the likelihood that a taking of private 
                property will occur; and
            (5) an estimate of the potential liability of the Federal 
        Government if the Government is required to compensate a 
        private property owner as a result of the agency action.
    (d) Submission to OMB.--Each agency shall provide the analysis 
required under this section as part of any submission otherwise 
required to be made to the Office of Management and Budget relating to 
an agency action.
    (e) 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 and any other person with a property 
        right or interest in the affected property.

SEC. 6. ALTERNATIVES TO TAKING OF PRIVATE PROPERTY.

    Before taking any final agency action, the agency shall fully 
consider alternatives described in section 5(c)(4) and shall, to the 
maximum extent practicable, alter the action to avoid or minimize the 
taking of private property.

SEC. 7. CIVIL ACTION.

    (a) Standing.--If an agency action results in the taking of private 
property, the owner of such property may obtain appropriate relief in a 
civil action against the agency that has caused the taking to occur.
    (b) Jurisdiction.--Notwithstanding sections 1346 or 1491 of title 
28, United States Code--
            (1) a civil action against the agency may be brought in 
        either the United States District Court in which the property 
        at issue is located or in the United States Court of Federal 
        Claims, regardless of the amount in controversy; and
            (2) if property is located in more than 1 judicial 
        district, the claim for relief may be brought in any district 
        in which any part of the property is located.

SEC. 8. GUIDANCE AND REPORTING REQUIREMENTS.

    (a) 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 Act.
    (b) Reports.--
            (1) In general.--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 submit a report to the Director 
        of the Office of Management and Budget and the Attorney General 
        that identifies--
                    (A) each agency action that has resulted in the 
                preparation of a taking impact analysis;
                    (B) the filing of a taking claim; and
                    (C) any award of compensation pursuant to the just 
                compensation clause of the fifth amendment to the 
                Constitution.
            (2) Publication of reports.--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 under this paragraph.

SEC. 9. 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. 10. 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.

SEC. 11. EFFECTIVE DATE.

    This Act shall take effect 120 days after the date of enactment of 
this Act.
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