[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 781 Introduced in Senate (IS)]







105th CONGRESS
  1st Session
                                 S. 781

     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

                              May 22, 1997

 Mr. Hatch (for himself, Mr. Craig, Mr. Gramm, Mr. Enzi, Mr. Cochran, 
Mr. Helms, and Mr. Kempthorne) 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 
1997''.

                     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 
        through 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; and
            (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.

              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, inaction, or 
        decision taken by an agency or State agency that at the time of 
        such action, inaction, or decision adversely affects private 
        property rights;
            (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, 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 
        interests constituting real property, as defined by Federal or 
        State law, protected under the fifth amendment to the United 
        States Constitution, any applicable Federal or State law, or 
        this Act, and more specifically constituting--
                    (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 liens on such water 
                right; or
                    (C) rents, issues, and profits of land, including 
                minerals, timber, fodder, crops, oil and gas, coal, or 
                geothermal energy;
            (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 restricting the 
                ownership, alienability, or use of private property is 
                an object of that action and is taken so 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) any action of the United States or any 
                        action filed by the United States relating to 
                        criminal or civil forfeiture, unless such an 
                        action is unconstitutional.

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 otherwise taken 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 or affects 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 results in the property owner being 
        deprived, either temporarily or permanently of 33 percent or 
        more of the value of the property or the value of that part of 
        the property affected by the action without a showing that such 
        deprivation inheres in the title itself; 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). Claims arising from the 
action, inaction, or decision of a State agency are properly filed 
against the Federal agency which administers the relevant Federal 
program.
    (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 or affect 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. 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)(A) 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 the difference between--
            (i) the fair market value of the property or the affected 
        portion of the property before such property or the affected 
        portion of such property became the object of the agency 
        action; and
            (ii) the fair market value of the property or the affected 
        portion of the property when such property or the affected 
        portion of such property becomes subject to the agency action.
    (B) Where appropriate, the calculation of fair market value shall 
include 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 the agency action resulted from a requirement imposed 
by another agency, the agency making the payment or satisfying the 
judgment may seek partial or complete reimbursement from the 
appropriated funds of the other agency. 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) Appeals.--In any appeal resulting from a claim under this 
section, the United States Court of Appeals for the Federal Circuit 
shall have exclusive jurisdiction of--
            (1) an appeal from a final decision of a district court of 
        the United States, the United States District Court of Guam, 
        the United States District Court of the Virgin Islands, or the 
        District Court for the Northern Mariana Islands, if the 
        jurisdiction of that court was based, in whole or in part, on 
        subsection (a); and
            (2) an appeal from a final decision of the United States 
        Court of Federal Claims if that jurisdiction was based, in 
        whole or in part, on subsection (a).
    (c) Standing.--Persons adversely affected by an agency action taken 
under this Act shall have standing to challenge and seek judicial 
review of that action without first exhausting administrative remedies.
    (d) 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 supplemental 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 title II of this Act or litigation commenced 
under such title 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.--(1) 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.
    (2) The provisions of title 9, United States Code (relating to 
arbitration), shall apply to enforcement of awards rendered under this 
section.
    (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. PURPOSES.

    The purposes of this title are--
            (1) to 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;
            (3) ``property or private property'' refers to all property 
        protected by the takings clause of the fifth amendment of the 
        United States Constitution; and
            (4) ``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. 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. 405. 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--MISCELLANEOUS

SEC. 501. 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. 502. RULE OF CONSTRUCTION RELATING TO CIVIL RIGHTS LAWS.

    This Act shall not be construed to apply to any Federal law that 
prohibits discrimination on the basis of race, color, religion, sex, 
national origin, age, or disability.

SEC. 503. 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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