[Congressional Record Volume 141, Number 3 (Friday, January 6, 1995)]
[Senate]
[Pages S567-S569]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                         ADDITIONAL STATEMENTS

                                 ______


                 PROPERTY RIGHTS LITIGATION RELIEF ACT

 Mr. HATCH. Mr. President, on January 4, 1995, I introduced S. 
135, the Property Rights Litigation Relief Act of 1995. Because of the 
great interest shown in the bill, I ask that it be printed in the 
Record at this point.
  The bill follows:
                                 S. 135

       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 ``Property Rights Litigation 
     Relief Act of 1995''.

     SEC. 2. 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, in its haste to ameliorate 
     public harms and environmental abuse, 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 to both 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;
       (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;
       (8) certain provisions of sections 1346 and 1402 and 
     chapter 91 of title 28, United States Code (commonly known as 
     the Tucker Act), that delineates 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;
       (9) 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;
       (10) property owners cannot fully vindicate property rights 
     in one court;
       (11) property owners should be able to fully recover for a 
     taking of their private property in one court;
       (12) 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
       (13) 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. 3. PURPOSE.

       The purpose of this Act is to--
       (1) encourage, support, and promote the private ownership 
     of property by ensuring the constitutional and legal 
     protection of private property by the United States 
     Government;
       (2) 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;
       (3) amend certain provisions of the Tucker Act, including 
     the repeal of section 1500 of title 28, United States Code;
       (4) rectify the constitutional imbalance between the 
     Federal Government and the States; and
       (5) 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. 4. DEFINITIONS.

       For purposes of this Act 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 or decision taken by 
     an agency that--
       (A) takes a property right; or
       (B) unreasonably impedes the use of property or the 
     exercise of property interests or significantly interferes 
     with investment-backed expectations;
       (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 and business losses arising from a 
     taking, 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 property 
     protected under the fifth amendment to the Constitution of 
     the United States, any applicable Federal or State law, or 
     this Act, and includes--
       (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 lines on such water right;
     [[Page S568]]   (C) rents, issues, and profits of land, 
     including minerals, timber, fodder, crops, oil and gas, coal, 
     or geothermal energy;
       (D) property rights provided by, or memorialized in, a 
     contract, except that such rights shall not be construed 
     under this title to prevent the United States from 
     prohibiting the formation of contracts deemed to harm the 
     public welfare or to prevent the execution of contracts for--
       (i) national security reasons; or
       (ii) exigencies that present immediate or reasonably 
     foreseeable threats or injuries to life or property;
       (E) any interest defined as property under State law; or
       (F) any interest understood to be property based on custom, 
     usage, common law, or mutually reinforcing understandings 
     sufficiently well-grounded in law to back a claim of 
     interest;
       (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''--
       (A) means any action whereby private property is directly 
     taken 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) an action filed by the United States relating to 
     criminal forfeiture.

     SEC. 5. COMPENSATION FOR TAKEN PROPERTY.

       (a) In General.--No agency or State agency, shall take 
     private property except for public purpose and with just 
     compensation to the property owner. A property owner shall 
     receive just compensation if--
       (1) as a consequence of a decision of any agency, or State 
     agency, private property (whether all or in part) has been 
     physically invaded or taken for public use 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 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 diminishes the fair market value of the 
     affected portion of the property which is the subject of the 
     action by the lesser of--
       (i) 20 percent or more with respect to the value 
     immediately prior to the governmental action; or
       (ii) $10,000, or more with respect to the value immediately 
     prior to the governmental action; or
       (E) under any other circumstance where a taking has 
     occurred within the meaning of the fifth amendment of the 
     United States Constitution.
       (b) 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 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.
       (c) 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, and 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) 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--
       (A) the difference between--
       (i) the fair market value of the property or portion of the 
     property affected by agency action before such property 
     became the subject of the specific government regulation; and
       (ii) the fair market value of the property or portion of 
     the property when such property becomes subject to the agency 
     action; or
       (B) business losses.
       (d) 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.
       (e) Source of Compensation.--The compensation referred to 
     in this section shall be paid out of funds made available to 
     the Federal agency or department by appropriation for the 
     fiscal year in which the property deprivation referred to in 
     this section occurred. If no such funds have been made 
     available to the agency, such payment shall be made from the 
     Judgment Fund.

     SEC. 6. 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) Standing.--Persons adversely affected by an agency 
     action taken under this Act shall have standing to challenge 
     and seek judicial review of that action.
       (c) 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 ancillary 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. 7. STATUTE OF LIMITATIONS.

       The statute of limitations for actions brought under this 
     title shall be 6 years from the date of the taking of 
     property.

     SEC. 8. ATTORNEYS' FEES AND COSTS.

       The court, in issuing any final order in any action brought 
     under this Act, shall award costs of litigation (including 
     reasonable attorney and expert witness fees) to any 
     prevailing plaintiff.

     SEC. 9. ALTERNATIVE DISPUTE RESOLUTION.

       (a) In General.--Either party to a dispute over a taking of 
     property as defined under this Act or litigation commenced 
     under this Act 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 Negotiated Settlements or 
     Arbitration.--The funds used for compensation to the owner 
     (as determined by the appropriate official of the Federal 
     agency or department) shall be taken from the responsible 
     agency's budget for that fiscal year or transferred to the 
     [[Page S569]] agency from the Judgment Fund for payment to 
     the owner.
       (c) Review of Arbitration.--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.
       (d) Payment of Certain Compensation.--In any appeal under 
     subsection (c) in which the court does not rule for the 
     Federal agency or department, the amount of the award of 
     compensation determined by the arbitrator shall be paid from 
     funds made available to the Federal agency or department by 
     appropriation in lieu of being paid from the Judgment Fund, 
     except that if no such funds have been made available to the 
     agency or department such payment shall be made from the 
     Judgment Fund.

     SEC. 10. RULES OF CONSTRUCTION.

       Nothing in this Act shall be construed to interfere with 
     the authority of any State to create additional property 
     rights.

     SEC. 11. 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. 12. EFFECTIVE DATE.

       The provisions of this Act and amendments made by this Act 
     shall take effect on January 1, 1995 and shall apply to any 
     agency action that occurs on or after such date. 
     

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