[Congressional Record Volume 143, Number 90 (Tuesday, June 24, 1997)]
[Senate]
[Pages S6187-S6190]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SHELBY (for himself, Mr. Nickles, and Mrs. Hutchison):
  S. 953. A bill to require certain Federal agencies to protect the 
right of private property owners, and for other purposes; to the 
Committee on Governmental Affairs.


              THE PRIVATE PROPERTY OWNERS' BILL OF RIGHTS

  Mr SHELBY. Mr. President, today I rise to introduce legislation that 
reaffirms one of the basic principles that formed our Nation--
protection of private property rights. The Private Property Owners' 
Bill of Rights is intended to reaffirm this constitutional right.
  The right to private property is an essential freedom. While the 
fifth amendment to the Constitution recognizes that the Federal 
Government may take property for public use; it explicitly mandates 
that Government must compensate the private property owner. In recent 
years, this fundamental right has been blatantly ignored in the name of 
habitat and species preservation.
  Since the inception of our Nation, ownership of private property has 
been a cornerstone of economic liberty and prosperity. The current 
Federal regulatory polices are an ominous cloud hanging over every 
landowner from the established developer to the hardworking 
generational farmer.
  Myriad new environmental regulations stemming from the Endangered 
Species Act and the wetlands statues of section 404 of the Clean Water 
Act have rendered countless acres of private land useless. Thus leaving 
property owners deprived of the ability to farm, develop, or even 
repair existing structures on their own land. This bill does not 
challenge the integrity of the Endangered Species Act or the wetlands 
statutes; it simply attempts to shift the burden of enforcing these 
laws from the individual back to the Government. For too long, the 
policies of the Fish and Wildlife Service, the Army Corps of Engineers, 
or the Environmental Protection Agency, with respect to these statutes, 
have gone unchecked.
  Property owners should not be singled out to bear the costs of public 
policies. If our Government determines that a certain parcel of land 
should be conserved or a species protected, it should purchase the land 
at a fair and just price. Current regulations punish individuals that 
happen to own land that the Government wants to manage without 
purchasing. Enforcement of land use statutes can range from exorbitant 
fines to the inability to use one's own land or even to time in prison. 
Currently, expensive and lengthy mitigation is the only recourse 
available to contest the Government's actions. Simply put, this is an 
intolerable situation.
  Continuing the punitive approach to conservation will only serve to 
alienate those that are in the best position to assist with the 
efforts. It is estimated that three-fourths of these lands that meet 
the Federal Government's definition of a wetland through section 404 of 
the Clean Water Act, are privately owned. It is time to change the 
bureaucratic viewpoint that protecting a private property owners' 
constitutionally guaranteed rights comes at the cost of protecting the 
environment. Contrary to the Government's actions, both are 
intrinsically linked.

  Throughout my tenure, I have heard countless stories of landowners 
being denied the right to use their own land--the very property that 
they purchased or inherited, cared for, developed and pay taxes on--
because the Government determines there is a need to preserve the 
property for a wetland or species. These citizens find themselves in a 
regulatory nightmare--unable to live off the land yet unable to sell it 
to the Government, or anyone for that matter, for full market value. 
Only on paper is the land truly theirs.
  For example, a farmer in Missouri was accused of destroying wetlands 
simply for moving dirt while repairing a broken levee on his family's 
property. In another disturbing instance, Texan Marge Rector spent 
$830,000 to purchase 15 acres of land for her retirement. Soon after, 
it was determined that her land was a potential habitat for the black-
capped vireo and the golden-cheeked warbler. Within 5 years, her land 
was determined to be worth approximately $30,000. Her retirement dream 
turned into a nightmare.
  Unfortunately these are not isolated cases, there are hundreds of 
individuals in similar predicaments across our country. This issue is 
not limited by geographical boundaries, socio-economic status or 
occupation. Any individual that owns land is subject to unexpected, 
unpredictable environmental regulation that--at the very least--will 
rob a person of the economic value of their land or, worse, force a 
landowner into prison for rightfully using their land.
  Mr. President, the time has arrived to realistically address the 
matter at hand by creating a clearly defined policy for Federal 
agencies to follow. Abusing the rights of private property owners in 
the name of the environment must end. Congress needs to act before the 
economic future of more citizens is put at risk.
  Therefore, I am pleased to reintroduce the Private Property Owners' 
Bill of Rights with my colleagues, Senators Nickles and Hutchison. This 
bill would reaffirm the Federal Government's constitutional 
responsibility to protect private property by requiring the Federal 
Government and its agents, to include private property owners in any 
process or action to take private land.
  The Private Property Owners' Bill of Rights requires a Federal agency 
and its representative to give notice and gain consent from property 
owners prior to entering a property owner's land for the purpose of 
gathering information to enforce the Endangered Species Act or any 
wetlands statute. Private property owners also would be guaranteed the 
right to complete access to that information and the right to debate 
its accuracy prior to the Government's use of it.

  Additionally, this legislation requires Federal Government agencies 
to create an administrative appeals process for owners of property 
adversely affected by environmental regulations. The Endangered Species 
Act will be amended to require that private property owners are 
notified and included in any management agreement that would affect 
their land. These provisions will assure that the landowner's voice is 
heard.
  Most importantly, the private property owners' bill of rights 
guarantees compensation for landowners whose property is devalued by 
$10,000 or 20 percent of its fair market value by Federal action. 
Uniform guidelines would be created that all Federal agencies and 
landowners would follow when developing a compensation agreement. If 
disagreements arise between the parties, they may request arbitration. 
In

[[Page S6188]]

no manner does this option limit the availability of alternative legal 
measures. These are reasonable protections to ensure that landowners' 
rights, guaranteed under the Constitution, are not violated and that 
Government affirmatively meets its constitutional obligation to protect 
private property.
  Our Nation is built on the principles of individual freedoms and 
rights. It is time that the Federal Government abide by the laws of our 
land and stop the practice of regulating private property without the 
benefit of compensation. These abuses must end. I urge my colleagues to 
join me in support of this effort.
  I ask unanimous consent that the Private Property Owners' Bill of 
Rights Act of 1997 be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 953

       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 Owners' 
     Bill of Rights''.

     SEC. 2. FINDINGS AND PURPOSE.

       (a) Findings.--Congress finds the following:
       (1) Our democracy was founded on principles of ownership, 
     use, and control of private property. These principles are 
     embodied in the fifth amendment to the Constitution, which 
     prohibits the taking of private property without the payment 
     of just compensation.
       (2) A number of Federal environmental programs, 
     specifically the Endangered Species Act of 1973 (16 U.S.C. 
     1531 et seq.) and section 404 of the Federal Water Pollution 
     Control Act (33 U.S.C. 1344), have been implemented by 
     employees, agents, and representatives of the Federal 
     Government in a manner that deprives private property owners 
     of the use and control of their property.
       (3) As new Federal programs are proposed that would limit 
     and restrict the use of private property to provide habitat 
     for plant and animal species, the rights of private property 
     owners must be recognized and respected.
       (4) Private property owners are being forced by Federal 
     policy to resort to extensive, lengthy, and expensive 
     litigation to protect certain basic civil rights guaranteed 
     by the Constitution.
       (5) Since many private property owners do not have the 
     financial resources or the extensive commitment of time to 
     proceed in litigation against the Federal Government, a clear 
     Federal policy is needed to guide and direct Federal agencies 
     with respect to the implementation by the agencies of 
     environmental laws that directly impact private property.
       (6) While all private property owners should and must abide 
     by nuisance laws and should not use their property in a 
     manner that harms their neighbors, these laws have 
     traditionally been enacted, implemented, and enforced at the 
     State and local levels where the laws are best able to 
     protect the rights of all private property owners and local 
     citizens.
       (7) While traditional pollution control laws are intended 
     to protect the health and physical welfare of the general 
     public, habitat protection programs in effect on the date of 
     enactment of this Act are intended to protect the welfare of 
     plant and animal species, while allowing recreational and 
     aesthetic opportunities for the public.
       (b) Purpose.--The purpose of this Act is to provide a 
     consistent Federal policy to--
       (1) encourage, support, and promote the private ownership 
     of property; and
       (2) ensure that the constitutional and legal rights of 
     private property owners are protected by the Federal 
     Government and employees, agents, and representatives of the 
     Federal Government.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Agency head.--The term ``agency head'' means the 
     Secretary or Administrator with jurisdiction or authority to 
     take a final agency action under 1 or more of the applicable 
     provisions of law.
       (2) Applicable provisions of law.--The term ``applicable 
     provisions of law'' means the Endangered Species Act of 1973 
     (16 U.S.C. 1531 et seq.) and section 404 of the Federal Water 
     Pollution Control Act (33 U.S.C. 1344).
       (3) Non-federal person.--The term ``non-Federal person'' 
     means a person other than an officer, employee, agent, 
     department, or instrumentality of--
       (A) the Federal Government; or
       (B) a foreign government.
       (4) Private property owner.--The term ``private property 
     owner'' means a non-Federal person (other than an officer, 
     employee, agent, department, or instrumentality of a State, 
     municipality, or political subdivision of a State, or a 
     State, municipality, or political subdivision of a State) 
     that--
       (A) owns property referred to in subparagraph (A) or (B) of 
     paragraph (5); or
       (B) holds property referred to in paragraph (5)(C).
       (5) Property.--The term ``property'' means--
       (A) land;
       (B) any interest in land; and
       (C) any proprietary water right.
       (6) Qualified agency action.--The term ``qualified agency 
     action'' means an agency action (as defined in section 
     551(13) of title 5, United States Code) that is taken under 1 
     or more of the applicable provisions of law.

     SEC. 4. PROTECTION OF PRIVATE PROPERTY RIGHTS.

       (a) In General.--In implementing and enforcing the 
     applicable provisions of law, each agency head shall--
       (1) comply with applicable State and tribal government 
     laws, including laws relating to private property rights and 
     privacy; and
       (2) implement and enforce the applicable provisions of law 
     in a manner that has the least impact on the constitutional 
     and other legal rights of private property owners.
       (b) Regulations.--Each agency head shall develop and 
     implement regulations for ensuring that the constitutional 
     and other legal rights of private property owners are 
     protected in any case in which the agency head makes, or 
     participates with other agencies in the making of, any final 
     decision that restricts the use of private property.

     SEC. 5. PROPERTY OWNER CONSENT FOR ENTRY.

       (a) In General.--Subject to subsection (b), an agency head 
     may not enter privately owned property to collect information 
     regarding the property, unless the private property owner 
     has--
       (1) consented in writing to the entry;
       (2) after providing the consent, been provided notice of 
     the entry; and
       (3) been notified that any raw data collected from the 
     property must be made available to the private property owner 
     at no cost, if requested by the private property owner.
       (b) Entry for Consent or Notice.--Subsection (a) shall not 
     prohibit entry onto property for the purpose of obtaining 
     consent or providing notice required under subsection (a).

     SEC. 6. RIGHT TO REVIEW AND DISPUTE DATA COLLECTED FROM 
                   PRIVATE PROPERTY.

       An agency head may not use data that is collected from 
     privately owned property to implement or enforce any of the 
     applicable provisions of law, unless the agency head has--
       (1) provided to the private property owner--
       (A) access to the information;
       (B) a detailed description of the manner in which the 
     information was collected; and
       (C) an opportunity to dispute the accuracy of the 
     information; and
       (2) determined that the information is accurate, if the 
     private property owner disputes the accuracy of the 
     information pursuant to paragraph (1)(C).

     SEC. 7. RIGHT TO AN ADMINISTRATIVE APPEAL OF WETLANDS 
                   DECISIONS.

       Section 404 of the Federal Water Pollution Control Act (33 
     U.S.C. 1344) is amended by adding at the end the following:
       ``(u) Administrative Appeals.--
       ``(1) In general.--The Secretary or the Administrator, 
     after notice and opportunity for public comment, shall issue 
     rules to establish procedures to provide private property 
     owners, or authorized representatives of the owners, an 
     opportunity for an administrative appeal of the following 
     actions under this section:
       ``(A) A determination of regulatory jurisdiction over a 
     particular parcel of property.
       ``(B) The denial of a permit.
       ``(C) The terms and conditions of a permit.
       ``(D) The imposition of an administrative penalty.
       ``(E) The imposition of an order requiring the private 
     property owner to restore or otherwise alter the property.
       ``(2) Decision.--The rules issued under paragraph (1) shall 
     provide that any administrative appeal of an action described 
     in paragraph (1) shall be heard and decided by an official 
     other than the official who took the action, and shall be 
     conducted at a location that is in the vicinity of the 
     property involved in the action.
       ``(3) Definitions.--In this subsection:
       ``(A) Non-federal person.--The term `non-Federal person' 
     means a person other than an officer, employee, agent, 
     department, or instrumentality of--
       ``(i) the Federal Government; or
       ``(ii) a foreign government.
       ``(B) Private property owner.--The term `private property 
     owner' means a non-Federal person (other than an officer, 
     employee, agent, department, or instrumentality of a State, 
     municipality, or political subdivision of a State, or a 
     State, municipality, or political subdivision of a State) 
     that--
       ``(i) owns property referred to in clause (i) or (ii) of 
     subparagraph (C); or
       ``(ii) holds property referred to in subparagraph (C)(iii).
       ``(C) Property.--The term `property' means--
       ``(i) land;
       ``(ii) any interest in land; and
       ``(iii) any proprietary water right.''.

     SEC. 8. RIGHT TO ADMINISTRATIVE APPEAL UNDER THE ENDANGERED 
                   SPECIES ACT OF 1973.

       Section 11 of the Endangered Species Act of 1973 (16 U.S.C. 
     1540) is amended by adding at the end the following:
       ``(i) Administrative Appeals.--
       ``(1) In general.--The Secretary, after notice and 
     opportunity for public comment, shall issue rules to 
     establish procedures to

[[Page S6189]]

     provide private property owners, or authorized 
     representatives of the owners, an opportunity for an 
     administrative appeal of the following actions under this 
     Act:
       ``(A) A determination that a particular parcel of property 
     is critical habitat of a species listed under section 4.
       ``(B) The denial of a permit for an incidental take.
       ``(C) The terms and conditions of a permit for an 
     incidental take.
       ``(D) The imposition of an administrative penalty.
       ``(E) The imposition of an order prohibiting or 
     substantially limiting the use of the property.
       ``(2) Decision.--The rules issued under paragraph (1) shall 
     provide that any administrative appeal of an action described 
     in paragraph (1) shall be heard and decided by an official 
     other than the official who took the action, and shall be 
     conducted at a location that is in the vicinity of the parcel 
     of property involved in the action.
       ``(3) Definitions.--In this subsection:
       ``(A) Non-federal person.--The term `non-Federal person' 
     means a person other than an officer, employee, agent, 
     department, or instrumentality of--
       ``(i) the Federal Government; or
       ``(ii) a foreign government.
       ``(B) Private property owner.--The term `private property 
     owner' means a non-Federal person (other than an officer, 
     employee, agent, department, or instrumentality of a State, 
     municipality, or political subdivision of a State, or a 
     State, municipality, or political subdivision of a State) 
     that--
       ``(i) owns property referred to in clause (i) or (ii) of 
     subparagraph (C); or
       ``(ii) holds property referred to in subparagraph (C)(iii).
       ``(C) Property.--The term `property' means--
       ``(i) land;
       ``(ii) any interest in land; and
       ``(iii) any proprietary water right.''.

     SEC. 9. COMPENSATION FOR TAKING OF PRIVATE PROPERTY.

       (a) Eligibility.--A private property owner that, as a 
     consequence of a final qualified agency action of an agency 
     head, is deprived of $10,000, or 20 percent or more, of the 
     fair market value of the affected portion of the property of 
     the owner, as determined by a qualified appraisal expert, 
     shall be entitled to receive compensation in accordance with 
     this section.
       (b) Deadline.--Not later than 90 days after receipt of a 
     final decision of an agency head that deprives a private 
     property owner of the fair market value or viable use of 
     property for which compensation is required under subsection 
     (a), the private property owner may submit in writing a 
     request to the agency head for compensation in accordance 
     with subsection (c).
       (c) Agency Head's Offer.--Not later than 180 days after the 
     receipt of a request for compensation under subsection (b), 
     the agency head shall stay the decision and provide to the 
     private property owner--
       (1) an offer to purchase the affected property of the 
     private property owner at the fair market value that would 
     apply if there were no use restrictions under the applicable 
     provisions of law; and
       (2) an offer to compensate the private property owner for 
     the difference between the fair market value of the property 
     without the restrictions and the fair market value of the 
     property with the restrictions.
       (d) Private Property Owner's Response.--
       (1) In general.--A private property owner shall have 60 
     days after the date of receipt of the offers of the agency 
     head under subsection (c) to accept 1 of the offers or to 
     reject both offers.
       (2) Submission to arbitration.--If the private property 
     owner rejects both offers, the private property owner may 
     submit the matter for arbitration to an arbitrator appointed 
     by the agency head from a list of arbitrators submitted to 
     the agency head by the American Arbitration Association. The 
     arbitration shall be conducted in accordance with the real 
     estate valuation arbitration rules of the association. For 
     the purposes of this section, an arbitration shall be binding 
     on the agency head and a private property owner as to the 
     amount, if any, of compensation owed to the private property 
     owner and whether for the purposes of this section the 
     private property owner has been deprived of the fair market 
     value or viable use of property for which compensation is 
     required under subsection (a).
       (e) Judgment.--A qualified agency action of an agency head 
     that deprives a private property owner of property as 
     described in subsection (a), shall be deemed, at the option 
     of the private property owner, to be a taking under the 
     Constitution and a judgment against the United States if the 
     private property owner--
       (1) accepts an offer of the agency head under subsection 
     (c); or
       (2) submits to arbitration under subsection (d).
       (f) Payment.--An agency head shall pay a private property 
     owner any compensation required under the terms of an offer 
     of the agency head that is accepted by the private property 
     owner in accordance with subsection (d), or under a decision 
     of an arbitrator under that subsection, by not later than 60 
     days after the date of the acceptance or the date of the 
     issuance of the decision, respectively.
       (g) Form of Payment.--Payment under this section shall be 
     in a form agreed to by the agency head and the private 
     property owner and may be in the form of--
       (1) payment of an amount that is equal to the fair market 
     value of the property on the day before the date of the final 
     qualified agency action with respect to which the property or 
     interest is acquired;
       (2) payment of an amount that is equal to the reduction in 
     value of the property; or
       (3) conveyance of real property or an interest in real 
     property that has a fair market value equal to the amount 
     referred to in paragraph (1) or (2).
       (h) Other Rights Preserved.--This section shall not 
     preempt, alter, or limit the availability of any remedy for 
     the taking of property or an interest in property that is 
     available under the Constitution or any other law.
       (i) Final Judgments.--If a private property owner 
     unsuccessfully seeks compensation under this section and 
     thereafter files a claim for compensation under the fifth 
     amendment to the Constitution and is successful in obtaining 
     a final judgment ordering compensation from the United States 
     Court of Federal Claims for the claim, the agency head who 
     made the final agency decision that results in the taking 
     shall reimburse, from funds appropriated to the agency for 
     the 2 fiscal years following payment of the compensation, the 
     Treasury of the United States for amounts appropriated under 
     section 1304 of title 31, United States Code, to pay the 
     judgment against the United States.

     SEC. 10. PRIVATE PROPERTY OWNER PARTICIPATION IN COOPERATIVE 
                   AGREEMENTS.

       Section 6(b) of the Endangered Species Act of 1973 (16 
     U.S.C. 1535(b)) is amended--
       (1) by striking ``The Secretary'' and inserting the 
     following:
       ``(1) In general.--The Secretary''; and
       (2) by adding at the end the following:
       ``(2) Participation by private property owners.--
       ``(A) In general.--Notwithstanding any other provision of 
     this section, in any case in which the Secretary enters into 
     a management agreement under paragraph (1) that establishes 
     restrictions on the use of property, the Secretary shall 
     notify all private property owners or lessees of the property 
     that is subject to the management agreement and shall provide 
     an opportunity for each private property owner or lessee to 
     participate in the management agreement.
       ``(B) Definitions.--In this paragraph:
       ``(i) Non-federal person.--The term `non-Federal person' 
     means a person other than an officer, employee, agent, 
     department, or instrumentality of--

       ``(I) the Federal Government; or
       ``(II) a foreign government.

       ``(ii) Private property owner.--The term `private property 
     owner' means a non-Federal person (other than an officer, 
     employee, agent, department, or instrumentality of a State, 
     municipality, or political subdivision of a State, or a 
     State, municipality, or political subdivision of a State) 
     that--

       ``(I) owns property referred to in subclause (I) or (II) of 
     clause (iii); or
       ``(II) holds property referred to in clause (iii)(III).

       ``(iii) Property.--The term `property' means--

       ``(I) land;
       ``(II) any interest in land; and
       ``(III) any proprietary water right.''.

  Mr. NICKLES. Mr. President, of all the freedoms we enjoy in this 
country, the ability to own, care for, and develop private property is 
perhaps the most crucial to our free enterprise economy. In fact, our 
economy would cease to function without the incentives provided by 
private property. So sacred and important are these rights, that our 
forefathers chose to specifically protect them in the fifth amendment 
to the U.S. Constitution, which says in part, ``nor shall private 
property be taken for public use, without just compensation.''
  Unfortunately, some Federal environmental, safety, and health laws 
are encouraging Government violation of private property rights, and it 
is a problem which is increasing in severity and frequency. We would 
all like to believe the Constitution will protect our property rights 
if they are threatened, but today that is simply not true. The only way 
for a person to protect their private property rights is in the courts, 
and far too few people have the time or money to take such action. Thus 
many citizens lose their fifth amendment rights simply because no 
procedures have been established to prevent Government takings.
  Many people in the Federal bureaucracy believe that public protection 
of health, safety, and the environment is not compatible with 
protection of private property rights. I disagree. In fact, the 
terrible environmental conditions exposed in Eastern Europe when the 
cold war ended lead me to believe that property ownership enhances 
environmental protection. As the residents of East Berlin and Prague 
know all too well, private owners are more effective

[[Page S6190]]

caretakers of the environment than communist governments.
  Yet the question remains, how do we prevent overzealous bureaucrats 
from using their authority in ways which threaten property rights?
  Today I rise to join my colleague Senator Richard Shelby of Alabama 
in introducing legislation which will strengthen every citizen's fifth 
amendment rights. Our bill, the Private Property Owners Bill of Rights, 
targets two of the worst property rights offenders, the Endangered 
Species Act and the Wetlands Permitting Program established by Section 
404 of the Clean Water Act.
  Our bill requires Federal agents who enter private property to gather 
information under either the Endangered Species Act or the Wetlands 
Permitting Program to first obtain the written consent of the 
landowner. While it is difficult to believe that such a basic right 
should need to be spelled out in law, overzealous bureaucrats and 
environmental radicals too often mistake private resources as their 
own. Property owners are also guaranteed the right of access to that 
information, the right to dispute its accuracy, and the right of an 
administrative appeal from decisions made under those laws.
  Most importantly, the Private Property Owners Bill of Rights 
guarantees compensation for a landowner whose property is devalued by 
$10,000, or 20 percent or more, of the fair market value resulting from 
a Federal action under the Endangered Species Act or Wetlands 
Permitting Program. An administrative process is established to give 
property owners a simple and inexpensive way to seek resolution of 
their takings claims. If we are to truly live up to the requirements of 
our Constitution, we must make this commitment. I believe this 
provision will work both to protect landowners from uncompensated 
takings and to discourage Government actions which would cause such 
takings.
  The time has come for farmers, ranchers, and other landowners to take 
a stand against violations of their private property rights by the 
Federal bureaucracy. The Private Property Owners Bill of Rights will 
help landowners take that stand.
                                 ______