[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 1883 Introduced in Senate (IS)]








109th CONGRESS
  1st Session
                                S. 1883

     To amend the Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970 to assist property owners and Federal 
      agencies in resolving disputes relating to private property.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 18, 2005

 Mr. Hatch (for himself and Mr. Baucus) introduced the following bill; 
 which was read twice and referred to the Committee on Environment and 
                              Public Works

_______________________________________________________________________

                                 A BILL


 
     To amend the Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970 to assist property owners and Federal 
      agencies in resolving disputes relating to private property.

    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 ``Empowering More Property Owners With 
Enhanced Rights Act of 2005'' or the ``EMPOWER Act''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds that--
            (1) the Constitution of the United States explicitly states 
        that ``No person shall be ... deprived of life, liberty, or 
        property, without due process of law; nor shall private 
        property be taken for public use, without just compensation.'';
            (2) in carrying out activities to promote the general 
        welfare, including public works, the Federal Government affects 
        real property and sometimes displaces private property owners, 
        small businesses, and family farmers, among others;
            (3) Congress enacted the Uniform Relocation Assistance and 
        Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601 
        et seq.) (referred to in this section as the ``Uniform Act''), 
        which applies to all Federal agencies, to provide for uniform 
        and equitable treatment of persons displaced from their homes, 
        businesses, and farms by Federal and federally-assisted 
        programs;
            (4) Congress designated the Department of Transportation as 
        the lead agency for purposes of carrying out the Uniform Act, 
        and required the Department, in coordination with other Federal 
        agencies, to issue a rule, establish procedures, and otherwise 
        implement the Uniform Act;
            (5) private property owners, small businesses, and family 
        farmers affected by Federal and federally-assisted programs 
        under which private property is acquired for public use face a 
        daunting Federal bureaucracy; and
            (6) private property owners, small businesses, and family 
        farmers affected by Federal and federally-assisted programs 
        would greatly benefit from the services of an advocate of high 
        position within the Federal Government to--
                    (A) advocate for the best interests of those 
                individuals and small businesses;
                    (B) provide property owners with information; and
                    (C) assist property owners in every way practicable 
                to achieve a fair and equitable settlement with minimum 
                cost and disruption.
    (b) Purposes.--The purposes of this Act are--
            (1) to enhance the rights of property owners, small 
        businesses, and family farmers affected by Federal or 
        federally-assisted programs;
            (2) to establish an advocate for property owners;
            (3) to provide consistency among Federal law in effect as 
        of the date of enactment of this Act;
            (4) to ensure conformity among Federal agencies; and
            (5) to amend the Uniform Act to establish a program, which 
        will apply to all Federal agencies, to enhance the rights of, 
        and provide advocates for, private property owners, small 
        businesses, and family farmers affected by Federal and 
        federally-assisted programs.

SEC. 3. DEFINITIONS.

    Section 101 of the Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970 (42 U.S.C. 4601) is amended by adding 
at the end the following:
            ``(14) Property rights.--The term `property rights' means 
        rights associated with characteristics of private real property 
        that--
                    ``(A) under relevant case law, have been held to be 
                protected by the Constitution of the United States; or
                    ``(B) are created or protected under Federal law 
                (including regulations), or under State law in the 
                State the controversy arises, and case law interpreting 
                that law.''.

SEC. 4. UNIFORM POLICY ON REAL PROPERTY ACQUISITION PRACTICES.

    Section 301 of the Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970 (42 U.S.C. 4651) is amended--
            (1) by striking the section heading and all that follows 
        through ``Sec. 301. In order'' and inserting the following:

``SEC. 301. UNIFORM POLICY ON REAL PROPERTY ACQUISITION PRACTICES.

    ``(a) In General.--In order'';
            (2) in subsection (a) (as designated by paragraph (1))--
                    (A) by striking paragraph (1) and inserting the 
                following:
            ``(1) Responsibilities of federal agencies.--The head of a 
        Federal agency shall--
                    ``(A) make every reasonable effort to acquire real 
                property expeditiously by negotiation;
                    ``(B) at the beginning of the negotiation process, 
                advise each property owner involved in the negotiation, 
                in writing, of the name and current contact information 
                for the Office of the Property Rights Ombudsperson 
                established by subsection (b) (or any other property 
                rights Ombudsperson appointed under subsection (b)) 
                that is available to assist the property owner in 
                understanding, and resolving any disputes arising from, 
                the acquisition process; and
                    ``(C) provide to the property owner a description 
                of the property rights of the property owner, including 
                a description of available mediation and other dispute 
                resolution alternatives.''; and
                    (B) in paragraph (3), by adding at the end the 
                following: ``In a case in which property to be acquired 
                includes a residential or recreational lot, a 
                residential structure containing 12 or fewer dwelling 
                units, a family farmer (as defined in section 101 of 
                title 11, United States Code) or a small business 
                concern (as defined in section 3 of the Small Business 
                Act (15 U.S.C. 632)), if requested by the property 
                owner, the head of the Federal agency shall provide to 
                the property owner a copy of the appraisal used to 
                establish the value of the property for negotiating 
                purposes.''; and
            (3) by adding at the end the following:
    ``(b) Office of Property Rights Ombudsperson.--
            ``(1) Definitions.--In this subsection:
                    ``(A) Office.--The term `Office' means the Office 
                of the Property Rights Ombudsperson established by 
                paragraph (2)(A).
                    ``(B) Ombudsperson.--The term `Ombudsperson' means 
                the Property Rights Ombudsperson appointed under 
                paragraph (2)(B).
            ``(2) Establishment.--
                    ``(A) In general.--There is established within the 
                lead agency the Office of the Property Rights 
                Ombudsperson.
                    ``(B) Appointment of head of office.--The Secretary 
                of Transportation shall appoint as Property Rights 
                Ombudsperson an attorney with a background or expertise 
                in law relating to eminent domain and the taking of 
                private property.
                    ``(C) Supervision and accountability.--The 
                Ombudsperson shall report directly to the President.
                    ``(D) Staff.--The Secretary of Transportation may 
                hire such personnel as are necessary to assist the 
                Ombudsperson in carrying out the duties of the 
                Ombudsperson.
            ``(3) Duties.--The Ombudsperson shall--
                    ``(A) develop and maintain expertise in and 
                understanding of the law relating to property rights;
                    ``(B) at the request of a Federal agency or a State 
                agency, advise the agency with respect to actions that 
                may affect property rights;
                    ``(C) advise private property owners that have a 
                legitimate potential or actual claim against a Federal 
                agency involving property rights;
                    ``(D) identify Federal agency actions that have 
                potential property rights implications and, if 
                appropriate, advise the relevant Federal agencies with 
                respect to those implications;
                    ``(E) provide information to private citizens, 
                civic groups, Federal agencies, State agencies, and 
                other interested parties regarding the rights of those 
                parties under this Act; and
                    ``(F) if appropriate, and if requested to do so by 
                a private property owner, mediate or arrange 
                arbitration (including the appointment of 1 or more 
                arbitrators in accordance with paragraph (4)(C)) for 
                disputes between private property owners and Federal 
                agencies that involve--
                            ``(i) property rights;
                            ``(ii) eminent domain; or
                            ``(iii) relocation assistance under this 
                        Act.
            ``(4) Arbitration and mediation.--
                    ``(A) Participation.--If arbitration or mediation 
                is requested by a private property owner under 
                paragraph (3)(F) and arranged by the Ombudsperson, a 
                Federal agency shall participate in the mediation or 
                arbitration as if the matter were ordered to mediation 
                or arbitration by a court of competent jurisdiction.
                    ``(B) Procedures.--In conducting or arranging for 
                arbitration under paragraph (3)(F), the Ombudsperson 
                shall follow any applicable procedure or requirement 
                under chapter I of title 9, United States Code.
                    ``(C) Appointment of arbitrator.--
                            ``(i) In general.--In selecting an 
                        individual to arbitrate a dispute, the 
                        Ombudsperson shall appoint an independent 
                        arbitrator who is acceptable to each party 
                        involved in the dispute.
                            ``(ii) Disagreement over arbitrator.--If a 
                        party to a dispute objects to the appointment 
                        of an arbitrator selected by the Ombudsperson, 
                        and that party is willing to pay for the 
                        services of another arbitrator that is 
                        acceptable to the Ombudsperson, the other 
                        arbitrator shall arbitrate the dispute at the 
                        expense of the party that objected to the 
                        original arbitrator.
                            ``(iii) Ombudsperson as arbitrator.--With 
                        the agreement of each party to a dispute, the 
                        Ombudsperson may act as the arbitrator for the 
                        dispute.
                            ``(iv) Panel of arbitrators.--The 
                        Ombudsperson may, on the initiative of the 
                        Ombudsperson or upon agreement of each party to 
                        a dispute, appoint a panel of arbitrators to 
                        conduct the arbitration for the dispute.
                    ``(D) Treatment of matter subject to arbitration.--
                Subject to chapter I of title 9, United States Code, 
                the arbitrator and parties involved shall treat the 
                matter being arbitrated as if--
                            ``(i) the matter were ordered to 
                        arbitration by a court of competent 
                        jurisdiction; and
                            ``(ii) the arbitrator or panel of 
                        arbitrators appointed by the Ombudsperson in 
                        accordance with this subsection were appointed 
                        by the court.
                    ``(E) Declination to arrange arbitration.--If a 
                property owner requests that the Ombudsperson arrange 
                arbitration in a matter, the Ombudsperson shall issue a 
                written statement declining to arrange the arbitration 
                if, as determined by the Ombudsperson--
                            ``(i) the issues in dispute are not ripe 
                        for review;
                            ``(ii) assuming the alleged facts are true, 
                        no cause of action exists under any Federal or 
                        State law;
                            ``(iii) all issues in dispute are beyond 
                        the scope of the statutory duty of the 
                        Ombudsperson to review; or
                            ``(iv) arbitration is otherwise not 
                        appropriate.
            ``(5) Applicable authority.--In conducting an arbitration, 
        the arbitrator shall apply all relevant Federal and State laws 
        (including regulations and case law), as determined by the 
        arbitrator.
            ``(6) Final decision and review.--
                    ``(A) In general.--Not later than 30 days after the 
                date on which the arbitrator issues a final decision 
                for a dispute, any party to the dispute may submit the 
                final decision and award, or any issue upon which the 
                award is based, to the appropriate United States 
                district court for de novo review.
                    ``(B) Binding arbitration.--A property owner and a 
                Federal or State government entity that are parties to 
                a dispute may agree that--
                            ``(i) the arbitration shall be binding; and
                            ``(ii) no de novo review may occur after 
                        issuance of the final decision of the 
                        arbitrator.
                    ``(C) No arbitration necessary.--
                            ``(i) In general.--Arbitration by or 
                        through the Ombudsperson shall not be required 
                        before a party to any potential arbitration may 
                        bring a civil action in the appropriate court 
                        of jurisdiction to adjudicate a claim.
                            ``(ii) No failure to exhaust remedies.--The 
                        lack of arbitration by or through the 
                        Ombudsperson shall not be considered to be--
                                    ``(I) a failure to exhaust 
                                available administrative remedies; or
                                    ``(II) a bar to bringing a civil 
                                action described in clause (i).
            ``(7) Role of ombudsperson in judicial proceedings.--
                    ``(A) In general.--The Ombudsperson may not be 
                compelled to testify in a civil action filed with 
                regard to the subject matter of any review or 
                arbitration conducted by the Ombudsperson.
                    ``(B) Work products of ombudsperson.--The written 
                work products of the Ombudsperson, including notes, 
                opinions, and conclusions of the Ombudsperson, shall 
                not be admissible in any civil action relating to an 
                issue with respect to which the Ombudsperson provided 
                advice to any party involved in the civil action.
                    ``(C) Representation.--The Ombudsperson may not 
                represent a private property owner, State agency, or 
                local government in any administrative or judicial 
                proceeding.
            ``(8) Eminent domain proceedings.--
                    ``(A) No effect on occupancy proceeding.--No 
                dispute submitted to the Ombudsperson under this 
                section shall bar or stay any action in an eminent 
                domain proceeding for occupancy of premises.
                    ``(B) Standing.--
                            ``(i) In general.--Subject to clause (ii), 
                        the Ombudsperson, or a mediator or arbitrator 
                        acting at the request of a property owner under 
                        this subsection, shall have standing, in an 
                        eminent domain proceeding filed in United 
                        States district court by a Federal agency or a 
                        State agency, to file with the court a motion 
                        to stay the proceeding during the pendency of 
                        the mediation or arbitration.
                            ``(ii) Necessity of stay.--The 
                        Ombudsperson, or a mediator or arbitrator 
                        described in clause (i), may not file a motion 
                        to stay an eminent domain proceeding described 
                        in clause (i) unless the Ombudsperson, 
                        mediator, or arbitrator certifies at the time 
                        of filing of the motion that the stay is 
                        reasonably necessary to reach a resolution of 
                        the matter through mediation or arbitration.
                            ``(iii) Duration of stay.--If a stay of an 
                        eminent domain proceeding is granted under this 
                        subparagraph, and the order granting the stay 
                        does not specify the date on which the stay 
                        terminates, the Ombudsperson, mediator, or 
                        arbitrator that filed the motion for the stay 
                        shall file with the appropriate United States 
                        district court a motion to terminate the stay 
                        by not later than the date that is 30 days 
                        after--
                                    ``(I) the date of resolution of the 
                                matter through mediation;
                                    ``(II) the date of issuance of a 
                                final decision on, or award for, the 
                                matter through arbitration; or
                                    ``(III) the date on which the 
                                Ombudsperson, mediator, or arbitrator 
                                determines that mediation or 
                                arbitration of the matter is not 
                                appropriate.
            ``(9) Appraisal.--
                    ``(A) Request for additional appraisal.--A private 
                property owner or displaced person may request that the 
                Ombudsperson, mediator, or arbitrator authorize the 
                conduct of an additional appraisal of the value of the 
                property that is the subject of the mediation or 
                arbitration.
                    ``(B) Conduct of and payment for appraisal.--If the 
                Ombudsperson, mediator, or arbitrator determines that 
                the conduct of an additional appraisal under 
                subparagraph (A) is reasonably necessary to reach a 
                resolution of the matter being mediated or arbitrated, 
                the Ombudsperson, or mediator, or arbitrator may--
                            ``(i) provide for the conduct of an 
                        additional appraisal of the property by an 
                        independent appraiser; and
                            ``(ii) require the Federal agency that is a 
                        party to the mediation or arbitration to pay 
                        the costs of conducting the first additional 
                        appraisal ordered under this paragraph.
            ``(10) Other offices of ombudspersons.--
                    ``(A) Federal offices.--Each Federal agency may 
                establish an office of property rights ombudsperson 
                within the Federal agency to comply with paragraph (1), 
                and to carry out other duties and responsibilities of 
                the Ombudsperson under this subsection, if the Federal 
                agency establishes the office in accordance with 
                regulations that are promulgated to implement this 
                subsection.
                    ``(B) Use of state offices.--If a State establishes 
                an office of property rights ombudsperson in accordance 
                with regulations that are promulgated to implement this 
                subsection, a Federal agency, with the approval of the 
                State, may use that State office--
                            ``(i) to comply with paragraph (1); and
                            ``(ii) to carry out the duties and 
                        responsibilities of the Ombudsperson under this 
                        subsection.
                    ``(C) No federal or state offices.--If a Federal 
                agency does not establish an office of property rights 
                ombudsperson described in subparagraph (A) and is 
                involved in the use of eminent domain power, relocation 
                issues, or a property rights dispute in a State that 
                does not establish an office of property rights 
                ombudsperson described in subparagraph (B), the Federal 
                agency shall use the services of the Ombudsperson--
                            ``(i) to comply with paragraph (1); and
                            ``(ii) to carry out the duties and 
                        responsibilities of the Ombudsperson under this 
                        subsection.''.

SEC. 5. REQUIREMENTS FOR UNIFORM LAND ACQUISITION POLICIES; PAYMENTS OF 
              EXPENSES INCIDENTAL TO TRANSFER OF REAL PROPERTY TO 
              STATE; PAYMENT OF LITIGATION EXPENSES IN CERTAIN CASES.

    Section 305(a)(1) of the Uniform Relocation Assistance and Real 
Property Acquisition Policies Act of 1970 (42 U.S.C. 4655(a)(1)) is 
amended by inserting ``(including through the appointment of a property 
rights Ombudsperson in accordance with regulations promulgated to carry 
out this title)'' after ``section 301''.
                                 <all>