[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1885 Introduced in House (IH)]

111th CONGRESS
  1st Session
                                H. R. 1885

                  To protect private property rights.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             April 2, 2009

 Ms. Waters (for herself, Mr. Sensenbrenner, Mrs. Bachmann, Mr. Clay, 
  Mr. Coble, Mr. Cohen, Mr. Cuellar, Mr. Cummings, Mrs. Emerson, Mr. 
Franks of Arizona, Mr. Goodlatte, Mr. Gordon of Tennessee, Mr. Heller, 
   Mr. Herger, Mr. Holt, Mr. Issa, Mrs. Kirkpatrick of Arizona, Mr. 
   LoBiondo, Mr. Rogers of Kentucky, Mr. Rohrabacher, Mr. Royce, Mr. 
 Sessions, Mr. Simpson, Mr. Smith of Nebraska, Mr. Smith of Texas, and 
  Mr. Wamp) introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
                  To protect private property rights.

    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 Protection 
Act of 2009''.

SEC. 2. PROHIBITION ON EMINENT DOMAIN ABUSE BY STATES.

    (a) In General.--No State or political subdivision of a State shall 
exercise its power of eminent domain, or allow the exercise of such 
power by any person or entity to which such power has been delegated, 
over property to be used for economic development or over property that 
is used for economic development within 7 years after that exercise, if 
that State or political subdivision receives Federal economic 
development funds during any fiscal year in which the property is so 
used or intended to be used.
    (b) Ineligibility for Federal Funds.--A violation of subsection (a) 
by a State or political subdivision shall render such State or 
political subdivision ineligible for any Federal economic development 
funds for a period of 2 fiscal years following a final judgment on the 
merits by a court of competent jurisdiction that such subsection has 
been violated, and any Federal agency charged with distributing those 
funds shall withhold them for such 2-year period, and any such funds 
distributed to such State or political subdivision shall be returned or 
reimbursed by such State or political subdivision to the appropriate 
Federal agency or authority of the Federal Government, or component 
thereof.
    (c) Opportunity To Cure Violation.--A State or political 
subdivision shall not be ineligible for any Federal economic 
development funds under subsection (b) if such State or political 
subdivision returns all real property the taking of which was found by 
a court of competent jurisdiction to have constituted a violation of 
subsection (a) and replaces any other property destroyed and repairs 
any other property damaged as a result of such violation.

SEC. 3. PROHIBITION ON EMINENT DOMAIN ABUSE BY THE FEDERAL GOVERNMENT.

    The Federal Government or any authority of the Federal Government 
shall not exercise its power of eminent domain to be used for economic 
development.

SEC. 4. PRIVATE RIGHT OF ACTION.

    (a) Cause of Action.--Any (1) owner of private property whose 
property is subject to eminent domain who suffers injury as a result of 
a violation of any provision of this Act with respect to that property, 
or (2) any tenant of property that is subject to eminent domain who 
suffers injury as a result of a violation of any provision of this Act 
with respect to that property, may bring an action to enforce any 
provision of this Act in the appropriate Federal or State court. A 
State shall not be immune under the eleventh amendment to the 
Constitution of the United States from any such action in a Federal or 
State court of competent jurisdiction. In such action, the defendant 
has the burden to show by clear and convincing evidence that the taking 
is not for economic development. Any such property owner or tenant may 
also seek an appropriate relief through a preliminary injunction or a 
temporary restraining order.
    (b) Limitation on Bringing Action.--An action brought by a property 
owner or tenant under this Act may be brought if the property is used 
for economic development following the conclusion of any condemnation 
proceedings condemning the property of such property owner or tenant, 
but shall not be brought later than seven years following the 
conclusion of any such proceedings.
    (c) Attorneys' Fee and Other Costs.--In any action or proceeding 
under this Act, the court shall allow a prevailing plaintiff a 
reasonable attorneys' fee as part of the costs, and include expert fees 
as part of the attorneys' fee.

SEC. 5. REPORTING OF VIOLATIONS TO ATTORNEY GENERAL.

    (a) Submission of Report to Attorney General.--Any (1) owner of 
private property whose property is subject to eminent domain who 
suffers injury as a result of a violation of any provision of this Act 
with respect to that property, or (2) any tenant of property that is 
subject to eminent domain who suffers injury as a result of a violation 
of any provision of this Act with respect to that property, may report 
a violation by the Federal Government, any authority of the Federal 
Government, State, or political subdivision of a State to the Attorney 
General.
    (b) Investigation by Attorney General.--Upon receiving a report of 
an alleged violation, the Attorney General shall conduct an 
investigation to determine whether a violation exists.
    (c) Notification of Violation.--If the Attorney General concludes 
that a violation does exist, then the Attorney General shall notify the 
Federal Government, authority of the Federal Government, State, or 
political subdivision of a State that the Attorney General has 
determined that it is in violation of the Act. The notification shall 
further provide that the Federal Government, State, or political 
subdivision of a State has 90 days from the date of the notification to 
demonstrate to the Attorney General either that (1) it is not in 
violation of the Act or (2) that it has cured its violation by 
returning all real property the taking of which the Attorney General 
finds to have constituted a violation of the Act and replacing any 
other property destroyed and repairing any other property damaged as a 
result of such violation.
    (d) Attorney General's Bringing of Action To Enforce Act.--If, at 
the end of the 90-day period described in subsection (c), the Attorney 
General determines that the Federal Government, authority of the 
Federal Government, State, or political subdivision of a State is still 
violating the Act or has not cured its violation as described in 
subsection (c), then the Attorney General will bring an action to 
enforce the Act unless the property owner or tenant who reported the 
violation has already brought an action to enforce the Act. In such a 
case, the Attorney General shall intervene if it determines that 
intervention is necessary in order to enforce the Act. The Attorney 
General may file its lawsuit to enforce the Act in the appropriate 
Federal or State court. A State shall not be immune under the eleventh 
amendment to the Constitution of the United States from any such action 
in a Federal or State court of competent jurisdiction. In such action, 
the defendant has the burden to show by clear and convincing evidence 
that the taking is not for economic development. The Attorney General 
may seek any appropriate relief through a preliminary injunction or a 
temporary restraining order.
    (e) Limitation on Bringing Action.--An action brought by the 
Attorney General under this Act may be brought if the property is used 
for economic development following the conclusion of any condemnation 
proceedings condemning the property of an owner or tenant who reports a 
violation of the Act to the Attorney General, but shall not be brought 
later than seven years following the conclusion of any such 
proceedings.
    (f) Attorneys' Fee and Other Costs.--In any action or proceeding 
under this Act brought by the Attorney General, the court shall, if the 
Attorney General is a prevailing plaintiff, award the Attorney General 
a reasonable attorneys' fee as part of the costs, and include expert 
fees as part of the attorneys' fee.

SEC. 6. NOTIFICATION BY ATTORNEY GENERAL.

    (a) Notification to States and Political Subdivisions.--
            (1) Not later than 30 days after the enactment of this Act, 
        the Attorney General shall provide to the chief executive 
        officer of each State the text of this Act and a description of 
        the rights of property owners and tenants under this Act.
            (2) Not later than 120 days after the enactment of this 
        Act, the Attorney General shall compile a list of the Federal 
        laws under which Federal economic development funds are 
        distributed. The Attorney General shall compile annual 
        revisions of such list as necessary. Such list and any 
        successive revisions of such list shall be communicated by the 
        Attorney General to the chief executive officer of each State 
        and also made available on the Internet website maintained by 
        the United States Department of Justice for use by the public 
        and by the authorities in each State and political subdivisions 
        of each State empowered to take private property and convert it 
        to public use subject to just compensation for the taking.
    (b) Notification to Property Owners and Tenants.--Not later than 30 
days after the enactment of this Act, the Attorney General shall 
publish in the Federal Register and make available on the Internet 
website maintained by the United States Department of Justice a notice 
containing the text of this Act and a description of the rights of 
property owners and tenants under this Act.

SEC. 7. REPORTS.

    (a) By Attorney General.--Not later than 1 year after the date of 
enactment of this Act, and every subsequent year thereafter, the 
Attorney General shall transmit a report identifying States or 
political subdivisions that have used eminent domain in violation of 
this Act to the Chairman and Ranking Member of the Committee on the 
Judiciary of the House of Representatives and to the Chairman and 
Ranking Member of the Committee on the Judiciary of the Senate. The 
report shall--
            (1) identify all private rights of action brought as a 
        result of a State's or political subdivision's violation of 
        this Act;
            (2) identify all violations reported by property owners and 
        tenants under section 5(c) of this Act;
            (3) identify all lawsuits brought by the Attorney General 
        under section 5(d) of this Act;
            (4) identify all States or political subdivisions that have 
        lost Federal economic development funds as a result of a 
        violation of this Act, as well as describe the type and amount 
        of Federal economic development funds lost in each State or 
        political subdivision and the Agency that is responsible for 
        withholding such funds; and
            (5) discuss all instances in which a State or political 
        subdivision has cured a violation as described in section 2(c) 
        of this Act.
    (b) Duty of States.--Each State and local authority that is subject 
to a private right of action under this Act shall have the duty to 
report to the Attorney General such information with respect to such 
State and local authorities as the Attorney General needs to make the 
report required under subsection (a).

SEC. 8. SENSE OF CONGRESS REGARDING RURAL AMERICA.

    (a) Findings.--The Congress finds the following:
            (1) The founders realized the fundamental importance of 
        property rights when they codified the Takings Clause of the 
        Fifth Amendment to the Constitution, which requires that 
        private property shall not be taken ``for public use, without 
        just compensation''.
            (2) Rural lands are unique in that they are not 
        traditionally considered high tax revenue-generating properties 
        for State and local governments. In addition, farmland and 
        forest land owners need to have long-term certainty regarding 
        their property rights in order to make the investment decisions 
        to commit land to these uses.
            (3) Ownership rights in rural land are fundamental building 
        blocks for our Nation's agriculture industry, which continues 
        to be one of the most important economic sectors of our 
        economy.
            (4) In the wake of the Supreme Court's decision in Kelo v. 
        City of New London, abuse of eminent domain is a threat to the 
        property rights of all private property owners, including rural 
        land owners.
    (b) Sense of Congress.--It is the sense of Congress that the use of 
eminent domain for the purpose of economic development is a threat to 
agricultural and other property in rural America and that the Congress 
should protect the property rights of Americans, including those who 
reside in rural areas. Property rights are central to liberty in this 
country and to our economy. The use of eminent domain to take farmland 
and other rural property for economic development threatens liberty, 
rural economies, and the economy of the United States. The taking of 
farmland and rural property will have a direct impact on existing 
irrigation and reclamation projects. Furthermore, the use of eminent 
domain to take rural private property for private commercial uses will 
force increasing numbers of activities from private property onto this 
Nation's public lands, including its National forests, National parks 
and wildlife refuges. This increase can overburden the infrastructure 
of these lands, reducing the enjoyment of such lands for all citizens. 
Americans should not have to fear the government's taking their homes, 
farms, or businesses to give to other persons. Governments should not 
abuse the power of eminent domain to force rural property owners from 
their land in order to develop rural land into industrial and 
commercial property. Congress has a duty to protect the property rights 
of rural Americans in the face of eminent domain abuse.

SEC. 9. DEFINITIONS.

    In this Act the following definitions apply:
            (1) Economic development.--The term ``economic 
        development'' means taking private property, without the 
        consent of the owner, and conveying or leasing such property 
        from one private person or entity to another private person or 
        entity for commercial enterprise carried on for profit, or to 
        increase tax revenue, tax base, employment, or general economic 
        health, except that such term shall not include--
                    (A) conveying private property--
                            (i) to public ownership, such as for a 
                        road, hospital, airport, or military base;
                            (ii) to an entity, such as a common 
                        carrier, that makes the property available to 
                        the general public as of right, such as a 
                        railroad or public facility;
                            (iii) for use as a road or other right of 
                        way or means, open to the public for 
                        transportation, whether free or by toll; and
                            (iv) for use as an aqueduct, flood control 
                        facility, pipeline, or similar use;
                    (B) removing harmful uses of land provided such 
                uses constitute an immediate threat to public health 
                and safety;
                    (C) leasing property to a private person or entity 
                that occupies an incidental part of public property or 
                a public facility, such as a retail establishment on 
                the ground floor of a public building;
                    (D) acquiring abandoned property;
                    (E) clearing defective chains of title;
                    (F) taking private property for use by a public 
                utility; and
                    (G) redeveloping of a brownfield site as defined in 
                the Small Business Liability Relief and Brownfields 
                Revitalization Act (42 U.S.C. 9601(39)).
            (2) Federal economic development funds.--The term ``Federal 
        economic development funds'' means any Federal funds 
        distributed to or through States or political subdivisions of 
        States under Federal laws designed to improve or increase the 
        size of the economies of States or political subdivisions of 
        States.
            (3) State.--The term ``State'' means each of the several 
        States, the District of Columbia, the Commonwealth of Puerto 
        Rico, or any other territory or possession of the United 
        States.

SEC. 10. SEVERABILITY AND EFFECTIVE DATE.

    (a) Severability.--The provisions of this Act are severable. If any 
provision of this Act, or any application thereof, is found 
unconstitutional, that finding shall not affect any provision or 
application of the Act not so adjudicated.
    (b) Effective Date.--This Act shall take effect upon the first day 
of the first fiscal year that begins after the date of the enactment of 
this Act, but shall not apply to any project for which condemnation 
proceedings have been initiated prior to the date of enactment.

SEC. 11. SENSE OF CONGRESS.

    It is the policy of the United States to encourage, support, and 
promote the private ownership of property and to ensure that the 
constitutional and other legal rights of private property owners are 
protected by the Federal Government.

SEC. 12. BROAD CONSTRUCTION.

    This Act shall be construed in favor of a broad protection of 
private property rights, to the maximum extent permitted by the terms 
of this Act and the Constitution.

SEC. 13. LIMITATION ON STATUTORY CONSTRUCTION.

    Nothing in this Act may be construed to supersede, limit, or 
otherwise affect any provision of the Uniform Relocation Assistance and 
Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601 et 
seq.).

SEC. 14. RELIGIOUS AND NONPROFIT ORGANIZATIONS.

    (a) Prohibition on States.--No State or political subdivision of a 
State shall exercise its power of eminent domain, or allow the exercise 
of such power by any person or entity to which such power has been 
delegated, over property of a religious or other nonprofit organization 
by reason of the nonprofit or tax-exempt status of such organization, 
or any quality related thereto if that State or political subdivision 
receives Federal economic development funds during any fiscal year in 
which it does so.
    (b) Ineligibility for Federal Funds.--A violation of subsection (a) 
by a State or political subdivision shall render such State or 
political subdivision ineligible for any Federal economic development 
funds for a period of 2 fiscal years following a final judgment on the 
merits by a court of competent jurisdiction that such subsection has 
been violated, and any Federal agency charged with distributing those 
funds shall withhold them for such 2-year period, and any such funds 
distributed to such State or political subdivision shall be returned or 
reimbursed by such State or political subdivision to the appropriate 
Federal agency or authority of the Federal Government, or component 
thereof.
    (c) Prohibition on Federal Government.--The Federal Government or 
any authority of the Federal Government shall not exercise its power of 
eminent domain over property of a religious or other nonprofit 
organization by reason of the nonprofit or tax-exempt status of such 
organization, or any quality related thereto.

SEC. 15. REPORT BY FEDERAL AGENCIES ON REGULATIONS AND PROCEDURES 
              RELATING TO EMINENT DOMAIN.

    Not later than 180 days after the date of the enactment of this 
Act, the head of each Executive department and agency shall review all 
rules, regulations, and procedures and report to the Attorney General 
on the activities of that department or agency to bring its rules, 
regulations and procedures into compliance with this Act.

SEC. 16. SENSE OF CONGRESS.

    It is the sense of Congress that any and all precautions shall be 
taken by the government to avoid the unfair or unreasonable taking of 
property away from survivors of Hurricane Katrina who own, were 
bequeathed, or assigned such property, for economic development 
purposes or for the private use of others.
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