[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1142 Introduced in House (IH)]







106th CONGRESS
  1st Session
                                H. R. 1142

 To ensure that landowners receive treatment equal to that provided to 
           the Federal Government when property must be used.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 17, 1999

 Mr. Young of Alaska (for himself, Mr. Tauzin, Mr. Pombo, Mr. Peterson 
  of Pennsylvania, Mr. Doolittle, Mrs. Chenoweth, Mr. Radanovich, Mr. 
 Cannon, Mr. Shadegg, Mr. Schaffer, Mr. Walden of Oregon, Mr. Hastings 
  of Washington, Mr. Simpson, Mr. Hansen, Mr. McKeon, Mr. Herger, Mr. 
 Hill of Montana, Mr. Gallegly, Mr. DeLay, Mr. Thomas, Mr. Baker, Mr. 
   Skeen, Mr. Thornberry, Mrs. Cubin, Mr. Calvert, and Mr. Bonilla) 
 introduced the following bill; which was referred to the Committee on 
                               Resources

_______________________________________________________________________

                                 A BILL


 
 To ensure that landowners receive treatment equal to that provided to 
           the Federal Government when property must be used.

    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 ``Landowners Equal Treatment Act of 
1999''.

SEC. 2. FINDINGS AND PURPOSE.

    (a) Findings.--The Congress finds and declares the following:
            (1) The Secretary of the Interior, through the United 
        States Fish and Wildlife Service, recently demanded and 
        received compensation for the loss of use of federally owned 
        property resulting from constructive use of the property for 
        other public purposes, in an amount of approximately 
        $26,000,000.
            (2) The Secretary of Transportation has promulgated a 
        regulation allowing for compensation of Federal agencies for 
        the lost use of agency property for public purposes, through a 
        definition of the term ``constructive use'' that includes off-
        site impacts of Federal agency actions on federally owned 
        property.
            (3) The Federal Government enjoys no right under the 
        Constitution to compensation for use of Federal agency property 
        for other public purposes, while the rights of private persons 
        to be compensated for the taking of their property by the 
        Government for a public purpose is a fundamental right 
        protected by the Fifth and Fourteenth Amendments to the 
        Constitution.
            (4) Private property owners should be compensated in a 
        manner that is at least as equitable as the compensation 
        afforded to Federal agencies when their property is used or 
        constructively used for other public purposes.
            (5) Fair and equitable treatment of private property owners 
        will increase the willingness of private property owners to 
        provide habitat for wildlife and plants protected under the 
        Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).
    (b) Purpose.--The purpose of this Act is to increase the efforts of 
private property owners to protect and restore habitat for wildlife, by 
ensuring that their constitutional and legal property rights will be 
honored, respected, and protected in the implementation of the 
Endangered Species Act of 1973.

SEC. 3. MINIMIZING IMPACTS ON PRIVATE PROPERTY.

    The Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) is 
amended by adding at the end the following new section:

                ``minimizing impacts on private property

    ``Sec. 19. (a) In General.--In implementing this Act, the head of 
an agency shall make every possible effort to avoid, minimize, or 
mitigate impacts on non-Federal property that result in Federal use of 
the property as a direct result of the action of the agency head under 
this Act or in furtherance of the purposes of this Act. An agency shall 
not take action that results in a Federal use of non-Federal property 
under this Act unless the agency--
            ``(1) obtains the written permission of its owner;
            ``(2) negotiates a voluntary agreement authorizing that 
        use; or
            ``(3) pays compensation in accordance with this section.
    ``(b) Compensation for Federal Use of Non-Federal Property.--An 
agency that takes action under this Act or in furtherance of the 
purposes of this Act that results in a Federal use of non-Federal 
property or any portion of non-Federal property without the written 
consent of the owner of the property shall compensate the owner for the 
fair market value of the Federal use of the property or portion. 
Compensation paid shall reflect the duration of the Federal use as 
necessary to achieve the purposes of this Act.
    ``(c) Request of Owner.--An owner of non-Federal property seeking 
compensation under this section shall make a written request for 
compensation to the agency implementing the agency action resulting in 
the Federal use of property. The request shall, at a minimum, identify 
the affected portion of the property, the nature of the Federal use of 
non-Federal property for which the compensation is sought, and the 
amount of compensation sought.
    ``(d) Negotiations.--The agency may negotiate with the owner to 
reach agreement on the amount of the compensation under this section, 
the terms of any agreement for payment, and the terms of any Federal 
use of non-Federal property for which compensation is paid. If such an 
agreement is reached, the agency shall within 6 months pay the owner 
the amount agreed upon. An agreement under this section may include a 
transfer of title or an agreement to limit the period of time of the 
Federal use of non-Federal property.
    ``(e) Choice of Remedies.--If, not later than 180 days after the 
written request is made, the parties have not reached an agreement on 
compensation, the owner of the property may elect binding arbitration 
or seek compensation due under this section in a civil action.
    ``(f) Arbitration.--The procedures that govern the arbitration 
shall, as nearly as practicable, be those established under title 9, 
United States Code, for arbitration proceedings to which that title 
applies. An award made in such arbitration shall include a reasonable 
attorney's fee and other arbitration costs, including appraisal fees. 
The agency shall promptly pay any award made to the owner.
    ``(g) Civil Actions.--A civil action to enforce this section may be 
filed under section 11(g). An owner who prevails in a civil action 
against the agency pursuant to this section shall be entitled to, and 
the agency shall be liable for, the amount of compensation awarded plus 
reasonable attorney's fees and other litigation costs, including 
appraisal fees. The court shall award interest on the amount of any 
compensation from the time of the Federal use of non-Federal property.
    ``(h) Source of Payments.--Any payment made under this section to 
an owner of property and any judgment obtained by an owner of property 
in a civil action under this section shall, notwithstanding any other 
provision of law, be made from the annual appropriation of the agency 
that took the agency action giving rise to the payment or civil action. 
If the agency action resulted from a requirement imposed by another 
agency, then the agency making the payment or satisfying the judgment 
may seek partial or complete reimbursement from the appropriated funds 
of the other agency. For this purpose, the head of the agency concerned 
may transfer or reprogram any appropriated funds available to the 
agency. If insufficient funds exist for the payment or to satisfy the 
judgment, it shall be the duty of the head of the agency to seek the 
appropriation of such funds for the next fiscal year.
    ``(i) Availability of Appropriations.--Notwithstanding any other 
provision of law, any obligation of the United States to make any 
payment under this section shall be subject to the availability of 
appropriations.
    ``(j) Duty of Notice to Owners.--An agency may not take any action 
that is a Federal use of non-Federal property unless the agency has 
given 30 days notice to each owner of the property directly affected 
explaining their rights under this section and either obtaining their 
permission for the Federal use or providing the procedures for 
obtaining any compensation that may be available under this section.
    ``(k) Rules of Construction.--The following rules of construction 
shall apply to this Act:
            ``(1) Other rights preserved.--Nothing in this Act shall be 
        construed to limit any right to compensation that exists under 
        the Constitution or under other laws.
            ``(2) Extent of federal authority.--Payment of compensation 
        under this section (other than when property is bought by the 
        Federal Government at the option of the owner) shall not confer 
        any rights on the Federal Government other than the Federal use 
        of non-Federal property agreed to so that the agency action may 
        achieve the species conservation purposes of this Act.
    ``(l) Definitions.--For the purposes of this section:
            ``(1) Agency.--The term `agency' has the meaning given that 
        term in section 551 of title 5, United States Code.
            ``(2) Federal use.--(A) The term `Federal use' means--
                    ``(i) any action under this Act to--
                            ``(I) permanently incorporate non-Federal 
                        property into a Federal facility;
                            ``(II) place non-Federal property under the 
                        control of the Secretary; or
                            ``(III) temporarily occupy non-Federal 
                        property in a manner that is adverse to the 
                        constitutional right of the owner of the 
                        property against taking of the property by the 
                        Federal Government; and
                    ``(ii) any constructive use of non-Federal 
                property.
            ``(B) In this paragraph the term `constructive use' means 
        any action described in subparagraph (C) taken under this Act 
        that results in--
                    ``(i) substantial diminution in the normal or 
                reasonably expected uses of non-Federal property;
                    ``(ii) a reduction in the fair market value of non-
                Federal property of 25 percent or more; or
                    ``(iii) in the case of the right to receive water, 
                any diminution in the quantity of water received or 
                available for use.
            ``(C) The actions referred to in subparagraph (B) are the 
        following:
                    ``(i) The imposition or enforcement of a 
                prohibition of use of non-Federal property the purpose 
                of which is to provide or retain habitat for any 
                species of wildlife or plant determined to be an 
                endangered species or threatened species.
                    ``(ii) A designation of non-Federal property as 
                critical habitat under this Act.
                    ``(iii) The denial of a permit under section 10 
                that results in the loss of the ability to use non-
                Federal property in order to provide habitat for 
                wildlife or plants.
                    ``(iv) An agency action pursuant to a reasonable 
                and prudent alternative suggested by the Secretary 
                under section 7, that would cause an agency to restrict 
                the use of non-Federal property.
                    ``(v) The imposition by any governmental entity of 
                a limitation or restriction on an otherwise permissible 
                use of non-Federal property by the owner of the 
                property, as a condition of a Federal agency providing 
                any land, money, permit, or other benefit to the 
                governmental entity, if imposition of the limitation or 
                restriction by the agency directly would constitute a 
                Federal use of non-Federal property under the other 
                provisions of this paragraph, unless the governmental 
                entity has some other legal basis for imposing the 
                limitation or restriction.
            ``(3) Fair market value.--The term `fair market value' 
        means the most probable price at which property or a right to 
        use property would change hands, in a competitive and open 
        market under all conditions requisite to fair sale, between a 
        willing buyer and willing seller, neither being under any 
        compulsion to buy or sell and both having reasonable knowledge 
        of relevant facts, and without regard to the presence of any 
        species protected under this Act. With respect to a right to 
        use property, fair market value shall be determined on or 
        immediately before the exercise of the right.
            ``(4) Law of the state.--The term `law of the State' 
        includes the law of a political subdivision of a State.
            ``(5) Non-federal property.--The term `non-Federal 
        property' means property which is owned by a person other than 
        any Federal entity of government.
            ``(6) Property.--The term `property' means land, an 
        interest in land, the right to use or receive water, and any 
        personal property, as defined under the law of the State.''.
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