[Congressional Record Volume 143, Number 58 (Wednesday, May 7, 1997)]
[Senate]
[Pages S4106-S4108]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HAGEL:
  S. 709. A bill to protect private property rights guaranteed by the 
fifth amendment to the Constitution by requiring Federal agencies to 
prepare private property taking impact analyses and by allowing 
expanded access to Federal courts; to the Committee on Governmental 
Affairs.


               THE PRIVATE PROPERTY FAIRNESS ACT OF 1997

  Mr. HAGEL. Mr. President, I rise today to introduce the Private 
Property Fairness Act of 1997. This bill will

[[Page S4107]]

help ensure that when the Government issues regulations for the benefit 
of the public as a whole, it does not saddle just a few landowners with 
the whole cost of compliance. This bill will help enforce the U.S. 
Constitution's guarantee that the Federal Government cannot take 
private property without paying just compensation to the owner.
  The dramatic growth in Federal regulation in recent decades has 
focused attention on a very murky area of property law, a regulatory 
area in which the law of takings is not yet settled to the satisfaction 
of most Americans.
  The bottom line is that the law in this area is unfair. For example, 
if the Government condemns part of a farm to build a highway, it has to 
pay the farmer for the value of his land. But if the Government 
requires that same farmer stop growing crops on that same land in order 
to protect endangered species or conserve wetlands, the farmer gets no 
compensation. In both situations the Government has acted to benefit 
the general public and, in the process, has imposed a cost on the 
farmer. In both cases, the land is taken out of production and the 
farmer loses income. But only in the highway example is the farmer 
compensated for his loss. In the regulatory example, the farmer, or any 
other landowner, has to absorb all of the cost himself. This is not 
fair.
  The legislation I am introducing today is an important step toward 
providing relief from these so-called regulatory takings. I know my 
distinguished colleague, Senator Hatch, intends to introduce an omnibus 
private property rights bill, and I look forward to working with him. 
My bill is a narrowly tailored approach that will make a real 
difference for property owners across America. It protects private 
property rights in two ways. First, it puts in place procedures that 
will stop or minimize takings by the Federal Government before they 
occur. The Government would have to jump a much higher hurdle before it 
can restrict the use of someone's privately owned property. For the 
first time, the Federal Government will have to determine in advance 
how its actions will impact the property owner, not just the wetland or 
the endangered species. This bill also would require the Federal 
Government to look for options other than restricting the use of 
private property to achieve its goal.
  Second, if heavy Government regulations diminish the value of private 
property, this bill would allow the landowners to plead their case in a 
Federal district court, instead of forcing them into the U.S. Court of 
Federal Claims. This means, for example, that Nebraskans can have their 
case heard in a Nebraska courthouse; they won't have to travel to 
Washington, DC, at their own expense to seek relief. This bill makes 
the process easier, less costly, and more accessible and accountable so 
all citizens can fully protect their property rights.
  For too long, Federal regulators have made private property owners 
bear the burdens and the costs of Government land use decisions. The 
result has been that real people suffer.
  Joe Jeffrey is a farmer in Lexington, NE. Like most Americans, he is 
proud of his land. He believed his property was his to use and control 
as he saw fit.
  Then he met the U.S. Fish and Wildlife Service and the Army Corps of 
Engineers.
  In 1987, the long arm of the Federal bureaucracy reached onto Mr. 
Jeffrey's property in the form of wetlands regulations. Mr. Jeffrey was 
notified that he had to destroy two dikes on his land because they were 
constructed without the proper permits. Nearly 2 years later, the corps 
partially changed its mind and allowed Mr. Jeffrey to reconstruct one 
of the dikes because the corps lacked authority to make him destroy it 
in the first place.
  Then floods damaged part of Mr. Jeffrey's irrigated pastureland and 
changed the normal water channel. Mr. Jeffrey set out to return the 
channel to its original course by moving sand that the flood had 
shifted. But the Government said ``no.'' The corps told him he had to 
give public notice before he could repair his own property.
  Then came the Endangered Species Act.
  Neither least terns nor piping plovers--both federally protected 
endangered species--have ever nested on Mr. Jeffrey's property. But 
that didn't stop the regulators. The U.S. Fish and Wildlife Service 
wanted to designate Mr. Jeffrey's property as ``critical habitat'' for 
these protected species.
  The bureaucrats could not even agree among themselves on what they 
wanted done. The Nebraska Department of Environmental Control wanted 
the area re-vegetated. But the U.S. Fish and Wildlife Service wanted 
the area kept free of vegetation. Mr. Jeffrey was caught in the middle.
  This is a real regulatory horror story. And there's more.
  Today--10 years after his regulatory struggle began--Mr. Jeffrey is 
faced with eroded pastureland that cannot be irrigated and cannot be 
repaired without significant personal expense. The value of Mr. 
Jeffrey's land has been diminished by the Government's regulatory 
intrusion--but he has not been compensated. In fact, he has had to 
spend money from his own pocket to comply with the regulations. The 
Fish and Wildlife Service asked Mr. Jeffrey to modify his center pivot 
irrigation system to negotiate around the eroded area--at a personal 
cost of $20,000. And the issue is still not resolved.
  Mr. President, we do not need more stories like Joe Jeffrey's in 
America. Our Constitution guarantees our people's rights. Congress must 
act to uphold those rights and guarantee them in practice, not just in 
theory. Government regulation has gone too far. We must make it 
accountable to the people. Government should be accountable to the 
people, not the people accountable to the Government.
  What this issue comes down to is fairness. It is simply not fair and 
it is not right for the Federal Government to have the ability to 
restrict the use of privately owned property without compensating the 
owner. It violates the principles this country was founded on. This 
legislation puts some justice back into the system. It reins in 
regulatory agencies and gives the private property owner a voice in the 
process. It makes it easier for citizens to appeal any restrictions 
imposed on their land or property. It is the right thing to do. It is 
the just and fair thing to do.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 709

       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 Act 
     of 1997''.

     SEC. 2. FINDINGS.

       The Congress finds that--
       (1) the ownership of private property plays an important 
     role in the economic and social well-being of the Nation;
       (2) the protection of private property from a taking by the 
     Government without just compensation is an integral 
     protection for private citizens incorporated into the United 
     States Constitution by the fifth amendment and made 
     applicable to the States by the fourteenth amendment;
       (3) Federal agency actions that restrict the use of private 
     property and result in a significant diminution in value of 
     such property constitute a taking of that property and should 
     be properly compensated;
       (4) Federal agencies should consider the impact of agency 
     actions, including regulations, on the use and ownership of 
     private property; and
       (5) owners of private property that is taken by a Federal 
     agency action should be permitted to seek relief in Federal 
     district court.

     SEC. 3. STATEMENT OF POLICY.

       The policy of the Federal Government is to protect the 
     health, safety, and general welfare of the public in a manner 
     that, to the extent practicable, avoids takings of private 
     property.

     SEC. 4. DEFINITIONS.

       For purposes of this Act--
       (1) the term ``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) the term ``agency action'' means any action, inaction, 
     or decision taken by an agency and includes such an action, 
     inaction, or decision taken by, or pursuant to--
       (A) a statute, rule, regulation, order, guideline, or 
     policy; or
       (B) the issuance, denial, or suspension of any permit, 
     license, or authorization;
       (3) the term ``owner'' means the person with title, 
     possession, or other property rights in property affected by 
     any taking of such property; and
       (4) the term ``taking of private property'' means any 
     action whereby private property is taken in such a way as to 
     require compensation under the fifth amendment to the United 
     States Constitution.

[[Page S4108]]

     SEC. 5. REQUIREMENT FOR PRIVATE PROPERTY TAKING IMPACT 
                   ANALYSIS.

       (a) In General.--To the fullest extent possible--
       (1) the policies, regulations, and public laws of the 
     United States shall be interpreted and administered in 
     accordance with the policies under this Act; and
       (2) subject to subsection (b), each agency shall complete a 
     private property taking impact analysis before taking any 
     agency action (including the promulgation of a regulation) 
     which is likely to result in a taking of private property.
       (b) Nonapplication.--Subsection (a)(2) shall not apply to--
       (1) an action in which the power of eminent domain is 
     formally exercised;
       (2) an action taken--
       (A) with respect to property held in trust by the United 
     States; or
       (B) in preparation for, or in connection with, treaty 
     negotiations with foreign nations;
       (3) a law enforcement action, including seizure, for a 
     violation of law, of property for forfeiture or as evidence 
     in a criminal proceeding;
       (4) 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;
       (5) the placement of a military facility or a military 
     activity involving the use of solely Federal property;
       (6) 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
       (7) 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.
       (c) Content of Analysis.--A private property taking impact 
     analysis shall be a written statement that includes--
       (1) the specific purpose of the agency action;
       (2) an assessment of the likelihood that a taking of 
     private property will occur under such agency action;
       (3) an evaluation of whether such agency action is likely 
     to require compensation to private property owners;
       (4) alternatives to the agency action that would--
       (A) achieve the intended purposes of the agency action; and
       (B) lessen the likelihood that a taking of private property 
     will occur; and
       (5) an estimate of the potential liability of the Federal 
     Government if the Government is required to compensate a 
     private property owner as a result of the agency action.
       (d) Submission to OMB.--Each agency shall provide the 
     analysis required under this section as part of any 
     submission otherwise required to be made to the Office of 
     Management and Budget relating to an agency action.
       (e) 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 and any other person with a 
     property right or interest in the affected property.

     SEC. 6. ALTERNATIVES TO TAKING OF PRIVATE PROPERTY.

       Before taking any final agency action, the agency shall 
     fully consider alternatives described in section 5(c)(4) and 
     shall, to the maximum extent practicable, alter the action to 
     avoid or minimize the taking of private property.

     SEC. 7. CIVIL ACTION.

       (a) Standing.--If an agency action results in the taking of 
     private property, the owner of such property may obtain 
     appropriate relief in a civil action against the agency that 
     has caused the taking to occur.
       (b) Jurisdiction.--Notwithstanding sections 1346 or 1491 of 
     title 28, United States Code--
       (1) a civil action against the agency may be brought in 
     either the United States District Court in which the property 
     at issue is located or in the United States Court of Federal 
     Claims, regardless of the amount in controversy; and
       (2) if property is located in more than 1 judicial 
     district, the claim for relief may be brought in any district 
     in which any part of the property is located.

     SEC. 8. GUIDANCE AND REPORTING REQUIREMENTS.

       (a) Guidance.--The Attorney General shall provide legal 
     guidance in a timely manner, in response to a request by an 
     agency, to assist the agency in complying with this Act.
       (b) Reports.--
       (1) In general.--Not 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 that identifies--
       (A) each agency action that has resulted in the preparation 
     of a taking impact analysis;
       (B) the filing of a taking claim; and
       (C) any award of compensation pursuant to the just 
     compensation clause of the fifth amendment to the 
     Constitution.
       (2) Publication of reports.--The Director of the Office of 
     Management and Budget and the Attorney General shall publish 
     in the Federal Register, on an annual basis, a compilation of 
     the reports of all agencies made under this paragraph.

     SEC. 9. 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. 10. RULES OF CONSTRUCTION.

       Nothing in this Act 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. 11. EFFECTIVE DATE.

       This Act shall take effect 120 days after the date of 
     enactment of this Act.
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