Congressional Record, Volume 143 Issue 143 (Wednesday, October 22, 1997)

[Congressional Record Volume 143, Number 143 (Wednesday, October 22, 1997)]
[House]
[Pages H8950-H8964]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

PRIVATE PROPERTY RIGHTS IMPLEMENTATION ACT OF 1997

The SPEAKER pro tempore. Pursuant to House Resolution 271 and rule
XXIII, the Chair declares the House in the Committee of the Whole on
the State of the Union for the further consideration of the bill, H.R.
1534.

{time} 1240

In the Committee of the Whole

Accordingly the House resolved itself into the Committee of the Whole
House on the State of the Union for the further consideration of the
bill (H.R. 1534) to simplify and expedite access to the Federal courts
for injured parties whose rights and privileges, secured by the U.S.
Constitution, have been deprived by final actions of Federal agencies,
or other government officials or entities acting under color of State
law; to prevent Federal courts from abstaining from exercising Federal
jurisdiction in actions where no State law claim is alleged; to permit
certification of unsettled State law questions that are essential to
resolving Federal claims arising under the Constitution; and to clarify
when government action is sufficiently final to ripen certain Federal
claims arising under the Constitution, with Mr. Snowbarger in the
chair.
The Clerk read the title of the bill.
The CHAIRMAN. When the Committee of the Whole rose earlier today, the
gentleman from North Carolina [Mr. Coble] had 3 minutes remaining in
debate, and the gentlewoman from California [Ms. Lofgren] had 2 minutes
remaining.
Ms. LOFGREN. Mr. Chairman, I yield 1 minute to the gentleman from
Oregon [Mr. DeFazio].
Mr. DeFAZIO. Mr. Chairman, what happened to the Federalists in the
Congress? We were going to empower the States. This is the most
extraordinary preemption of local and State laws in my 11 years in the
Congress.
This is unbelievable. We heard horror stories from people from States
that do not have a regular land use process. Those States should adopt
a land use process. Those local jurisdictions should adopt a land use
process, and it should be regular. It should have process of appeal and
litigation through their States. But not the Federal Government.
Do we want the Federal Government wading into every single local land
use dispute? Peep shows next to schools, liquor stores next to high
schools? I think not.
I do not think the people on that side of the aisle really believe
that. They are playing here to an audience of special interests, very
well-funded special interests. This is horrible legislation for small
town America. It is horrible legislation for our States and States'
rights. Reject this legislation.
Ms. LOFGREN. Mr. Chairman, I yield myself the balance of my time.
Mr. Chairman, I believe in the fifth amendment and the minority
believes in the fifth amendment. I believe there ought to be
compensation when there is a taking, and there ought to be due process.
There is no dispute about that. But what we dispute is this remedy. We
have heard a lot of discussion about widows who have been abused by the
heavy-handed Government. But we need to get beyond that appealing image
to what is really going on here.

[[Page H8951]]

Zoning protects neighborhoods, zoning protects homeowners, and what
this bill does is allow developers rights that are much greater than
those that would attach to neighborhoods and to homeowners.
These rights will attach, whether it is 20,000 housing units being
built, or whether a town is trying to regulate the hours of operation
of a topless bar or pornographic bookstore. That is what is so terribly
flawed with this legislation.
Mr. Chairman, I urge my colleagues to oppose this and to search for a
more rational response to this problem.

{time} 1245

Mr. COBLE. Mr. Chairman, I yield the balance of my time to the
gentleman from Kansas [Mr. Ryun].
The CHAIRMAN. The gentleman from Kansas [Mr. Ryun] is recognized for
3 minutes.
Mr. RYUN. Mr. Chairman, I rise in support of H.R. 1534. Mr. Chairman,
one of the pillars of our democracy is the right of every individual to
own private property. In 1792, James Madison said this, and I quote:
``That is not a just government nor is property secure under it where
the property which a man has in his personal safety and personal
liberty is violated by an arbitrary seizure of one class of citizens
for the service of the rest.''
Because our Founding Fathers understood this very important
principle, they included a guarantee in the Bill of Rights to protect
private property owners from politicians and bureaucrats who believe
that they know best how to use someone else's lands.
The fifth amendment to the Constitution assures the Government cannot
take a person's private property without first providing the owner due
process and just compensation. Unfortunately, the fears which motivated
our Founding Fathers to include this property guarantee are being
realized today.
For example, in the first 10 years after the enactment of the 1983
Rails to Trails Act, trails groups and State governments used that law
to take the property from 62,000 landowners. Yet, not one of those
aggrieved farmers and homeowners has received a single penny in
compensation for their loss.
While courts have ruled that compensation must be paid to the
property owners, endless bureaucratic redtape would first require a
small Kansas farmer to retain a high-priced Washington lawyer to begin
jumping over administrative hurdles. This lawyer would then need almost
10 years of expensive court time before securing a farmer's
compensation for his strip of land that was taken to create a
recreational trail for others to use.
All we have to do is do a little math, and if the value of a farmer's
confiscated land is about $30,000 but a Washington lawyer would charge
the farmer $100,000 to pursue the farmer's claim, there is no farmer
who will be able to afford any compensation. That is why this private
property rights bill, this one particularly, H.R. 1534, is so
important. It is our duty as Members of this House, the peoples' House,
the House of Representatives, to protect private property owners from
arbitrary actions and guarantee their right to due process.
Mr. Chairman, I urge my colleagues to vote ``yes'' for property
rights, to vote ``yes'' for due process, and to vote ``yes'' on H.R.
1534.
Mr. VENTO. Mr. Chairman, I rise in strong opposition to H.R. 1534,
the Private Property Rights Implementation Act.
Mr. Chairman, last night I brought a germane amendment to the Rules
Committee and asked that it be made in order. My amendment seeks to
balance this bill with adequate protection for the 65 million Americans
that own their own homes. It would have limited the application of H.R.
1534 to States that provide adequate protection for homeowners in this
country. All I asked for was 30 minutes to make my case to the Members
of this House. My request was denied.
This measure, H.R. 1534, is an end of the session effort to avert
full debate on a very important issue, property rights, the rights of
special interests not the property rights of homeowners, yet on the
floor today the rule was again expanded to accommodate another unheard,
unrequested amendment.
I don't know for the life of me why the leadership in this House of
Representatives is not willing to spend 30 minutes on the concerns of
homeowners. H.R. 1534 is not a purely procedural, noncontroversial
bill, as supporters of this bill would have you believe, they are
wrong. This bill sides with developers who have made their views clear
and, of course, generously contribute to the campaigns of those who
support them. This is a new judicial superhighway that places the
decisions in Federal courts, out of the hands of local government and
State courts.
Ironically, the underlying bill we are considering today does not
protect the property of homeowners--the most important investment made
by the American family--from adverse actions by State and local
government and others. This bill protects developers that may have been
unjustifiably or justifiably stymied by local and State courts that are
carrying out their own laws and rules. Under H.R. 1534, Congress
rearranges this authority and moves it away from local and State
governments. It's ironic that a Congress emblematic of devolution
initiatives over the past several years are suddenly moving to
superimpose such a national policy. The Federal courts, with this new
guideline, will be no doubt more friendly to the interests of
developers than State and local courts. The handwriting is on the wall
as to the expense and policy change that this bill gives developers to
easier access, and assure more profitable treatment in the Federal
courts.
The real motive I believe is apparent, to first remove local
decisionmaking power from communities, States, and the respective
courts. And in the future create a wholly new class of takings which
will hamstring the United States both State and Federal with a new
class of taxpayer payments whenever zoning and the limits of common
interest for the common good guide the use of real property to stop
pollution, to enhance--their community they would be forced to buy
theoretical development rights--this turns the local decisionmaking on
its head.
I have drafted an amendment which is very important and seeks to
balance this newly proposed policy path. I must admit, Mr. Chairman, I
have some interests to worry about, too. They are the property
homeowners of St. Paul, of Minnesota, and the Nation--the families that
work hard every day and believe in the importance of neighborhoods and
communities and their only property is their family homes. My amendment
would have sought to at least protect them and their homes. It would
have prevented this bill from going into effect in States that have not
passed laws that protect homeowners' property rights. These laws will
have to provide families with adequate notice when adverse development
is moving in to affect their property. The intent was to provide
homeowners with guaranteed access to the courts when their property is
devalued by harmful developments nearby. I'm not sure anybody would
oppose such an amendment. It will significantly improve H.R. 1534 and
insures protection of the rights of American families and homeowners.
We all have homeowners in our districts, and they deserve this right a
priori.
All I asked for, Mr. Speaker, was 30 minutes. Claims have been made
we simply don't have time to consider all the amendments that are in
order. What I want to know is why we are wasting floor time on
legislation that is opposed not just by all the environmental groups.
But, Mr. Chairman, this bill is opposed by the National League of
Cities, the Conference of Mayors, 40 State attorneys general, and is
headed for a certain veto by the President. With a list that long you
have to wonder who supports this bill and why. The point is, however,
that we are engaged in a futile exercise. If we have the time to
consider this bill on the floor, we certainly have time to consider the
property rights of homeowners in this country, but the advocates of
this legislation obviously feared this germane amendments; that placed
homeowners property rights on a par with developer's for who this
measure will benefit.
This procedure for debate silences the voices of the 65 million
Americans who own their own homes and are concerned about reckless
activities that could cause their

[[Page H8952]]

most precious investment to lose its value. For these reasons, I urge
my colleagues to resoundingly defeat this measure and maintain the
protections accorded homeowners by State and local governments, they
are far better served at the local level where they have a place at the
table than being shut out by this redefined property rights effort in
the Federal courts where they are for all practical purpose excluded.
Nr. NADLER. Mr. Chairman, I rise to strongly oppose this bill which
would override local zoning procedures, undermine local governments,
burden Federal courts, and weaken efforts to protect public health,
welfare, and the environment. It is bad policy and ought to be soundly
rejected.
The current judicial procedures, which may appear cumbersome, have in
fact served to protect communities across the Nation from misguided
property use which may have been detrimental to the society at large.
This bill will allow those who seek to risk public health, safety, and
welfare for private gain to go over the heads of local officials and
appeal directly to Federal judges, some of whom may have less
understanding and expertise in the issues and concerns of the local
community.
We learned while considering this bill in committee that this bill is
specifically designed to undermine legitimate efforts to protect pubic
health and safety. During consideration of this bill in committee, I
offered an amendment to ensure that in cases where public health and
safety are involved, the plaintiff cannot circumvent State and local
courts to get the Federal courts. And the bill's sponsor rejected it.
It appears then that supporters of this bill would deliberately seek to
undermine the health and safety of our Nation's communities. That is
simply wrong, and more than that, it is shameful.
I also want to mention that it appears that this bill could be used
to undermine rent regulation in cities like New York, because it may
allow landlords to challenge rent regulation and public housing laws
and rulings in expedited fashion in Federal court. Tenants may lack the
financial resources, the legal know-how or standing to appear in
Federal court to defend their rights. Some have argued that this bill
could undermine tenants' rights and threaten to eliminate low- and
moderate-income housing in some of our biggest cities.
I urge my colleagues to oppose this bill that would jeopardize pubic
health, destroy the environment, and put citizens' lives in danger.
Mr. YOUNG of Alaska. Mr. Chairman, I rise in support of H.R. 1534,
the Private Property Rights Implementation Act of 1997.
This bill would streamline the court procedures when a case is
brought by a private property owner to protect their legal and civil
rights as guaranteed in the fifth amendment of the U.S. Constitution.
This is a bill that is sorely needed.
As chairman of the Committee on Resources, we have documented in our
hearings the many cases where governments assert the right to set aside
private lands for the protection of wildlife.
When a landowner wants to sell land and the Government pays for the
land, that is legal and an acceptable manner for the Government to
protect wildlife.
However, as is happening more frequently, the Government sometimes
finds it inconvenient to find the funds to buy the land, so they
designate it as habitat for an endangered species.
When that happens, landowners find that they cannot use their land.
In the last 2 years, under extreme pressure from this Republican
Congress, the Government is beginning a process to allow landowners to
use land designated as habitat, but only at a very high cost to
landowners.
When landowners cannot afford to go to court to protect their legal
and civil rights, the Government can use pressure to take the land from
the landowner.
We need to give landowners a more level playing field. We need to
ensure that going to court is not so expensive that only the biggest
and richest landowners can afford to protect their rights.
A case in point is the Headwaters Forest in California. For years the
Government tried to use various forestry laws and the ESA to force the
landowner off a portion of its land.
The landowner filed a takings suit in the court of claims and now the
Government has come to the bargaining table and offering to pay for the
property. This would not have happened if this landowner had not been a
large, wealthy corporation with the resources to fight a long and an
expensive court battle.
Now some environmentalists are arguing that this bill would increase
the number of Federal lawsuits. Some environmentalists are now in the
business of filing lawsuits. In the last 10 years, environmentalists
have received over $10 million in payments from the Federal Treasury
for filing endangered Species Act lawsuits. I believe many of these
lawsuits are frivolous and an abuse of the courts, and their numbers
are increasing dramatically. For environmentalists to argue against
allowing average citizens to sue at the same time they are making a
living off their lawsuits is hypocrisy of the highest order. I have a
list of environmentalists who have received payments for lawsuits and
would ask that it be entered into the Record with my testimony.
Let's ensure that the smallest and poorest landowner can have the
same rights as the biggest corporation or the environmental groups.
Let's pass H.R. 1534 and protect our constitutional rights.

ATTORNEY FEES AWARD BY ORGANIZATION
----------------------------------------------------------------------------------------------------------------
Name Court No. District Amount
----------------------------------------------------------------------------------------------------------------
Alaska Wilderness Recreation and 94-033 Alaska........................... $853.20
Tourism Assoc. v. Gary A. Morrison, et
al. (Tongass Nat'l Forest).
Bay Institute of San Francisco v. 92-2132 California East.................. 60,000.00
Lujan--Delta Smelt.
Bay Institute of San Francisco, et al. 94-0265 California East.................. 5,000.00
v. Babbitt--Delta Smelt.
Biodiversity Legal Foundation v. 96-641 District of Columbia............. 10,000.00
Babbitt (Categroy 2 Species).
Biodiversity Legal Foundation v. 95-601 Colorado......................... 1,000.00
Babbitt.
Biodiversity Legal Foundation v. 95-382 Colorado......................... 8,000.00
Babbitt.
Biodiversity Legal Foundation v. 95-1815 Colorado......................... 3,500.00
Babbitt.
Biodiversity Legal Foundation v. 95-816 Colorado......................... 500.00
Babbitt (Pending see above)--N. Am.
Wolverine.
Biodiversity Legal Foundation, et al. 94-0920 District of Columbia............. 5,000.00
v. Babbitt--Flatwoods Salamander.
Biodiversity Legal Foundation, et al. 94-0920 District of Columbia............. 3,815.00
v. Babbitt--Flatwoods Salamander.
Biodiversity Legal Foundation, et al. 94-1086 Colorado......................... 1,408.19
v. Babbitt--Western Boreal Toad.
Biodiversity Legal Foundation v. 94-02441 District of Columbia............. 4,000.00
Babbitt--Selkirk Mountain Woodland
Caribou.
Biodiversity Legal Foundation v. 95-2509 Colorado......................... 3,435.61
Babbitt.
California Trout, et al. v. Babbitt 95-3961 California North................. 40,000.00
(Santa Ana Speckled Dace) (Pending see
above).
California Native Plant Society v. 91-0038 California East.................. 16,678.25
Manuel Lujan, Jr. (Pending see above)--
Plant listings.
Canadian Lynx, Greater Ecosystem 92-1269 Washington West.................. 2,000.00
Alliance v. Lujan--Listing of Can.
Lynx.
Canadian Lynx, Greater Ecosystem 92-1269 Washington West.................. 9,500.00
Alliance v. Lujan--Listing of Can.
Lynx.
Citizens Cmte to Save Our Canyons, et 95-68 Utah............................. 145.50
al v. USFS, Bernie Weingardt, Dale
Boswort (John Paul Area).
Clemmys Karmorata v. USFWS--Western 93-6135 Oregon........................... 2,522.30
Pond Turtle, Red Legged.
CLR Timber Holdings, Inc. et al v. 94-6403 Oregon........................... 40,000.00
Bruce Babbitt, et al (Marbled
Murrelet).
Colorado Wildlife Federation v. Turner-- 92-884 Colorado......................... 5,000.00
Razorback Sucker.
Colorado Wildlife Federation v. Turner-- 92-884 Colorado......................... 31,351.90
Razorback Sucker.
Colorado Environmental Coalition v. J. 91-1765 Colorado......................... 5,168.40
Turner--Razorback Sucker.
Conservation Council for Hawaii, et al 89-00953 Hawaii........................... 44,635.25
v. Manuel Lujan and John F. Turner.
Defenders of Wildlife v. Thomas-- Strychnine Minnesota........................ 122,500.00
Strychnine.
Desert Tortoise, et al. v. Lujan--Ward 93-0114 California North................. 69,000.00
Valley--Tortoise.
Dioxin/Organi-chlorine Center and 91-1442 Washington West.................. 61,500.00
Columbia River United v. Dana
Rasmussen.
Earth Island Institute, et al v. Manuel 91-6015 Oregon........................... 32,338.70
Lujan--5 Year Review.
Edward Wilkinson Mudd Jr. v. William 91-1392 Alabama North.................... 39,000.00
Reilly Admin., EPA--CWA/ESA
consultation.
Energy and Resource Advocates, et al 90-2479 California North................. 10,000.00
vs. Kenneth R. Quitoriano, et al and
James D. Watkins (Energy Dept.)--
(Purex Waste).
Environmental Defense Center v. 94-0743 California Central............... 4,074.75
Babbitt--Red Leggedfrog/salamander.
Environmental Defense Center v. 94-0788 California Central............... 3,815.00
Babbitt--Fairy Shrimp.
Environmental Defense Center v. Bruce 93-1847 California Central............... 4,700.00
Babbitt--Western Pond Turtle.
Environmental Defense Center v. 95-2867 California Central............... 44,511.53
Babbitt--Red Legged Frog.
Environmental Defense Center v. Lujan-- 92-6082 California Central............... 7,500.00
Tidewater Goby.
Environmental Defense Center v. 93-3379 California Central............... 4,300.00
Babbitt--California Tiger Salamander.
Environmental Defense Center v. Bruce 93-1848 California Central............... 4,700.00
Babbitt--Southwestern Willow
Flycatcher.
Environmental Defense Fund v. Lujan-- 89-2034 District of Columbia............. 2,237.50
Desert Tortoise.
Florida Key Deer, et al v. Robert H. 90-10037 Florida South.................... 130,000.00
Morris--Fema/Flood Insurance.
Friends of the Wild Swan, Inc., 94-0246 District of Columbia............. 4,500.00
Alliance for the Wild Rockies, Inc.,
et al. v. Babbitt--Bull Trout Listing.
Friends of Walker Creek Wetlands v. 92-1626 Oregon........................... 12,000.00
Dept. of the Interior--Nelson's
Checker Mallow.
Fund for Animals v. Manuel Lujan, et 92-800 District of Columbia............. 67,500.00
al. (Pending see above) ESA Listings.
Fund for Animals v. Manuel Lujan 92-800 District of Columbia............. 24,500.00
(Pending see above) (ESA Listings).
Fund for Animals, Swan View Coalition, 91-2201 District of Columbia............. 36,000.00
D.C. ``Jasper'' Carlton (Director, of
Biodiversity Legal Foundation) v.
Turner--Grizzly Bears.
Greater Gila Biodiversity Project v. 94-0288 Arizona.......................... 2,048.91
USFWS--Pygmy Owls.

[[Page H8953]]

Greater Gila Biodiversity Project v. 93-1913 Arizona.......................... 11,000.00
USFWA--Loach Minnow.
Greater Yellowstone Coalition, et al. 93-1495 District of Columbia............. 32,750.00
v. F. Dale Robertson (USFWS)--Grizzly
bears.
Greenpeace v. Baldridge................ 86-0129 Hawaii........................... 88,794.01
Hawaiian Crow v. Manuel Lujan--Hawaiian 91-00191 Hawaii........................... 195,000.00
crow.
Hughes River Watershed Conservancy, et 1-94-113 West Virginia North.............. 63,367.71
al v. Dan Glickman, et al.
Idaho Department of Fish and Game v. 93-1603 Oregon........................... 8,405.06
NMFS--hydro transfer/salmon.
Idaho Conservation League v. Manuel 92-0260 Idaho............................ 21,166.00
Lujan, et al.--Bruneau Hot Springs
Snail.
Idaho Conservation League v. Babbitt-- 94-0351 Idaho............................ 5,000.00
White Sturgeon.
Idaho Conservation League, et al. v. 92-0406 Idaho............................ 8,000.00
Lujan--Idaho Springsnail.
Jeffrey Mausolf, William Kullberg, 95-1201 Minnesota........................ 28,821.50
Arlys Strehlo; Minnesota United
Snowmobilers Association v. Babbitt
(Wolf/Eagle) (Pending see above).
La Compania Ocho Inc., et al v. USFS, 94-317 New Mexico....................... 303,635.67
et al (Carson Nat'l Forest).
Marbled Murrelet et al v. Manuel Lujan 91-522 Washington West.................. 61,109.47
(Pending see above)--Listing and
critical habitat for marbled murrelet.
Mountain Lion Foundation v. Babbitt-- 94-1165 California East.................. 6,500.00
Santa Ana Mountain Lion.
National Audubon Society et al. v. 93-1152 District of Columbia............. 22,500.00
Babbitt et al.--Guam species.
National Audubon Society v. Lujan-- 92-209 California South................. 7,348.75
Least Bell's vireo.
National Audubon Society v. Babbitt, et 94-0105 California South................. 7,540.61
al.--Snowy Plover.
National Wildlife Foundation, et al. v. 79-1851 District of Columbia............. 20,000.00
Endangered Species Committee, et al.
National Wildlife Federation, et al v. 89-2089 District of Columbia............. 42,500.00
Robert Mosbacher (Commerce).
Native Plant Society of Oregon v. U.S. 93-180 Oregon........................... 13,046.19
DOI--Oregon Plants.
Natural Resources Defense Council, et 93-0301 California North................. 262,096.76
al. v. Bruce Babbitt--Desert Tortoise.
Natural Resources Defense Council v. 85-1214 California East.................. 57,000.00
Donald Hodel (Kesterson).
Natural Resources Defense Council v. 85-1214 California East.................. 518,000.00
Donald Hodel (Kesterson).
Northern Spotted Owl, et al v. Donald 88-573 Washington West.................. 56,718.00
Hodel, et al.--Spotted Owl Listing.
Northwest Forest Resource Council v. 95-6244 Oregon........................... 298,144.36
Dan Glickman (Emergency Salvage Timber
Sale)(Pending see above).
Northwest Coalition for Alternatives to 94-6339 Oregon........................... 10,500.00
Pesticides v. Babbitt.
Oregon Council of the Federation of Fly 95-1969 Oregon........................... 24,706.49
Fishers v. Brown (Cutthroat
Trout)(Pending see above).
Oregon Trout Inc., et al v. USFS (Trout 96-1460 Oregon........................... 21,400.00
Creek Salvage Sale).
Oregon Natural Resources Council v. 94-666 Oregon........................... 4,000.00
Babbitt--Western lily.
Oregon Natural Resources Council v. 93-293 Oregon........................... 16,200.00
Department of Commerce.
Oregon Natural Resources Council v. 95-3117 California North................. 120,952.54
Schmitten (Steelhead Trout)(Pending
see above).
Pacific Rivers Council v. Thomas 92-1322 Oregon........................... 165,000.00
(Pending see above)--Salmon/Umatilla
Forest.
Resources Limited Inc., et al v. F. 89-41 Montana.......................... 47,000.00
Dale Robertson, et al (Pending see 90,000.00
above)--Flathead Forest/Grizzlies.
Restore: The North Woods v. Babbitt 95-37 New Hampshire.................... 5,400.00
(Pending see above)--Atlantic salmon.
Save Our Springs Legal Defense Fund, 95-230 Texas West....................... 72,500.00
Inc. v. Babbitt (Barton Springs
Salamander) (Pending see above).
Save our Ecosystems, et al. v. Federal 96-6161 Oregon........................... 2,560.80
Hwy Admin. (West Eugene Parkway).
Sierra Club and League for Coastal 86-1942 California South................. 44,774.16
Protection v. John Marsh, et al.
Sierra Club Legal Defense Fund v. 89-1140 District of Columbia............. 9,000.00
Manuel Lujan.
Sierra Club v. Lujan (Pending see 91-069 Texas West....................... 666,666.67
above)--Edwards Aquifer** same case
but Justice split the fee in four
portions.
Sierra Club v. Lujan (Pending see 91-069 Texas West....................... 666,666.67
above)--Edwards Aquifer.
Sierra Club v. Lujan (Pending see 91-069 Texas West....................... 666,666.66
above)--Edwards Aquifer.
Sierra Club v. Lujan (Pending see 91-069 Texas West....................... 1,550,000.00
above)--Edwards Aquifer.
Sierra Club, et al. v. Bruce Babbitt, 93-1717 California South................. 11,368.76
et al.--10 species of plants and
animals.
Sierra Club, et al v. James A. Baker, 89-3005 District of Columbia............. 18,583.72
et al--Turtles??.
Sierra Club, et al v. Richard Lyng 85-69 Texas East....................... 149,647.50
(Pending see above)--Southern Pine
Beetle and Red Cockaded Woodpecker.
Sierra Club, et al. v. David Garber, et 93-069 Montana.......................... 55,000.00
al.
Silver Rice Rat, et al v. Manuel Lujan-- 89-3409 District of Columbia............. 19,500.00
Silver Rice Rat Listing.
Southern Utah Wilderness Alliance v. 93-2376 Colorado......................... 8,500.00
Bruce Babbitt--Virgin River Club.
Southern Utah Wilderness Alliance v. 94-717 Colorado......................... 4,200.00
Morgenweck--Virgin Spinedace.
Southwest Center for Biological 94-1969 Arizona.......................... 15,509.11
Diversity v. Babbitt (SW Willow
Flycatcher)(Pending see above).
Southwest Center for Biological 94-0739 Arizona.......................... 1,000.00
Diversity, et al. v. USFWS--Loach
Minnow/spinedace.
Southwest Center for Biological 94-2036 Arizona.......................... 40,000.00
Diversity v. Babbitt (Pending see
above).
Southwest Center for Biological 94-1946 Arizona.......................... 1,971.01
Diversity v. Babbitt.
Southwest Center for Biological 94-0696 Arizona.......................... 1,665.00
Diversity, et al. v. USFWA--Jaguar
listing.
Southwest Center for Biological 94-1034 Arizona.......................... 5,145.00
Diversity v. Babbitt--Arizona Willow.
Southwest Center for Biological 96-1170 California South................. 17,000.00
Diversity v. Babbitt (Laguna Mtn
Skipper).
Dr. Robin Silver et al. v. Babbitt 94-0337 Arizona.......................... 4,000.00
(Pending see above).
Dr. Robin Silver v. Thomas (USFWS) 94-1610 Arizona.......................... 231,393.75
(Mexican Spotted Owl) (Pending see
above).
Dr. Robin Silver, et al. v. Babbitt 94-0337 Arizona.......................... 102,418.86
(Pending see above)--Mexican spotted
owl.
Steven Krichbaum (w/Virginias for 96-0108 Virginia West.................... 345.00
Wilderness) & Michael Jones v. USFS,
William Damon (GW Nat'l Forest).
Swan View Coalition Inc v. USFS 93-7 Montana.......................... 23,700.00
(Flathead Forest/Grizzlies)(Pending
see above).
----------------------------------------------------------------------------------------------------------------

Mr. DOOLEY of California. Mr. Chairman, I rise today to express my
support for H.R. 1534, the Private Property Implementation Act. I
believe this bill takes a new, more modest approach to the issue of
property rights and has received widespread bipartisan support. The
legislation helps property owners by clearing some of the legal and
procedural hurdles that make it both excessively time consuming and
expensive to assert their claims. This bill proposes to do nothing
except clarify the jurisdiction of Federal courts to hear and determine
issues of Federal constitutional law.
H.R. 1534 is vastly different from previous property rights bills. It
does not attempt to define for a court when a taking has occurred nor
does it change or weaken any environmental law. The bill would have no
budgetary impact because, unlike previous bills, it contains no
compensation requirement or trigger. Simply put, the legislation amends
Federal procedural laws governing the jurisdiction of the U.S. district
courts. H.R. 1534 would provide more straightforward access to Federal
courts for property owners seeking redress of their fifth amendment
rights.
There has been a lot of controversy generated surrounding this bill.
More of the criticism of this legislation is based upon the assumption
that the bill cuts local governments out of the decisionmaking process
when it comes to land use. Nothing could be further from the truth.
The truth is that H.R. 1534 applies only to Federal claims based on
the 5th and 14th amendments that are filed in Federal court. The bill
creates no new cause of action against local governments. H.R. 1534 is
only a procedural bill, clarifying the rules so a decision can be
reached faster on the facts of the case instead of wasting taxpayer
money on jurisdictional questions.
Local governments will have no new limits on their ability to zone or
regulate land use. Local agencies will get at least two, maybe three,
chances to resolve a land use decision locally before their decision
will be defined as ``final''--once on the original application, once on
appeal, and yet again on review by an elected body.
H.R. 1534 doesn't provide a ticket to Federal court--individuals
already have a right to go to Federal court. The bill simply provides
an objective definition of when ``Enough is Enough,'' so that both
parties in a land use dispute can participate in meaningful
negotiations. I believe H.R. 1534 represents a moderate approach that
Members can and should support. Let's not miss an opportunity to do
something that will provide a direct benefit to our constituents.
Mr. NEUMANN. Mr. Chairman, I rise today in support of H.R. 1534--the
Private Property Rights Implementation Act. I strongly believe land use
decisions should be made at the local level to the greatest degree
possible. In fact, this Congress has fought hard to move more Federal
programs out of the hands of Washington bureaucrats and into the
control of the folks back home. The folks in Wisconsin and other States
are better suited to make decisions that affect local areas than
bureaucrats in Washington. Nevertheless, there are limitations that
exist on local governments to ensure they do not trample on the rights
of individuals. Those limitations are embodied in the Constitution and
the Bill of Rights.
H.R. 1534 allows a property owner, who feels his or her
constitutional rights have been violated, a chance to seek protection
in Federal court--the same chance that anyone else would have. H.R.
1534 simply puts fifth amendment protections on par with other
constitutional rights.
Those who argue that H.R. 1534 would ``federalize local land use
decisions,'' have long supported Federal land use controls to protect
the environment. Where is the consistency? Support H.R. 1534 and
support the right of all Americans to be treated equally under the
Constitution--even property owners.
Mr. GOSS. Mr. Chairman, this is a tough subject, involving the need
to balance protection of constitutionally guaranteed private property
rights with other constitutional guarantees of public health, safety,
and welfare as traditional, legitimate functions of Government.

[[Page H8954]]

While I agree this is a subject that needs our attention, and I commend
Mr. Gallegly for his work in bringing the matter forward, I do have
some concerns about the bill we are about to consider.
As a former mayor and county commissioner, I'm particularly
interested in H.R. 1534. While the current system we have of layering
government an division of authority isn't perfect, I believe it works
well and ensures a balanced role for all three levels of government
involved in these decisions. We ought to trust the local officials to
work through the zoning issues. They're the ones on the frontlines--
they deal with these questions every day and are in the best position
to be directly responsive to the needs and concerns of the community.
Of course, there are poster child examples of the extreme development
abuses and cases of egregious takings without compensation.
If there are questions of State law that need to be resolved, we need
State courts to decide those issues. If a legitimate takings claim
exists, it is critical we ensure landowners their day in court.
We need to maintain for local officials a meaningful opportunity to
work with the landowners and other constituents to craft a compromise.
In my view, it is not appropriate to have the Federal Government
deciding or pressuring local land use questions. In addition, some
critics of this bill have argued that the Federal judiciary would be
flooded with claims and simply could not handle the caseload that would
result if this bill were enacted. For example, the Federal district
court for the area of Florida that I represent is already short handed
and has a backlog of cases that is measured in years, not just months.
I think we need to ensure that any changes to the current system take
these concerns into account.
In the end, Mr. Speaker, balancing the right of a landowner to
develop his property within the bounds set by the health, safety, and
welfare interests of the community is a difficult question--I, for one,
do not believe there's any particular magic a Federal court has that
can solve these problems and make them go away.
Mrs. TAUSCHER. Mr. Chairman, I am a cosponsor of H.R. 1534, the
Private Property Rights Implementation Act of 1997 because I believe
that relief needs to be provided to property owners who are seeking
finality to their land use plans, and I have become convinced that
reform is necessary.
Since cosponsoring the measure, I have heard from opponents,
especially many of the local elected officials from the 10th
Congressional District, whom I'm proud to represent. I have continued
to meet with both advocates and opponents to discuss in depth many of
the concerns raised and fully explore the various interpretations of
the bill as amended. Earlier this week, I wrote to Chairman Hyde of the
House Judiciary Committee with several of my questions and urged him to
postpone floor consideration of the bill until these issues are
sufficiently resolved. Unfortunately, this measure is before the full
House for consideration today and I, despite my support for reform,
cannot vote for a measure with such important and potentially far-
reaching implications without the time needed to fully explore the
ramifications of this amended bill.
As I stated, I want to see a more streamlined and fair process for
property owners, and I wish that this body had taken the time necessary
in developing a needed reform measure, without overburdening our cities
and counties. It is my hope that we can continue to work on this issue
in the future to develop a consensus bill that can be supported by a
coalition of involved parties.
Mr. PORTER. Mr. Chairman, while I realize that it is too late to
formally remove my name as a cosponsor of H.R. 1534, I want to indicate
that I do not support this bill in its current form. My initial
understanding of this legislation was that its central thrust was to
facilitate the ability of aggrieved parties to have Federal question
claims adjudicated by Federal judges. However, it is now clear that the
bill would significantly alter the abstention doctrine and more
importantly, would allege to alter the Supreme Court definition of
ripeness. I am concerned that a legislative effort to alter such a
constitutional doctrine may be unconstitutional. I support the effort
of my colleague, Mr. Gallegly, to make reasonable changes to unfair
impediments to the consideration of takings claims but, acknowledging
the two concerns outlined above, I cannot support this legislation.
Mr. COBLE. Mr. Chairman, I yield back the balance of my time.
The CHAIRMAN. Pursuant to the rule, the committee amendment in the
nature of a substitute printed in the bill, as modified by the
amendments printed in part 1 of House Report 105-335, shall be
considered as an original bill for the purpose of amendment under the
5-minute rule and shall be considered as read.
The text of the committee amendment in the nature of a substitute, as
modified by the amendments printed in part 1 of House Report 105-335,
is as follows:

H.R. 1534

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
Implementation Act of 1997''.

SEC. 2. JURISDICTION IN CIVIL RIGHTS CASES.

Section 1343 of title 28, United States Code, is amended by
adding at the end the following:
``(c) Whenever a district court exercises jurisdiction
under subsection (a) in an action in which the operative
facts concern the uses of real property, it shall not abstain
from exercising or relinquish its jurisdiction to a State
court in an action where no claim of a violation of a State
law, right, or privilege is alleged, and where a parallel
proceeding in State court arising out of the same operative
facts as the district court proceeding is not pending.
``(d) Where the district court has jurisdiction over an
action under subsection (a) in which the operative facts
concern the uses of real property and which cannot be decided
without resolution of an unsettled question of State law, the
district court may certify the question of State law to the
highest appellate court of that State. After the State
appellate court resolves the question certified to it, the
district court shall proceed with resolving the merits. The
district court shall not certify a question of State law
under this subsection unless the question of State law--
``(1) will significantly affect the merits of the injured
party's Federal claim; and
``(2) is patently unclear and obviously susceptible to a
limiting construction as to render premature a decision on
the merits of the constitutional or legal issue in the case.
``(e)(1) Army claim or action brought under section 1979 of
the Revised Statutes of the United States (42 U.S.C. 1983) to
redress the deprivation of a property right or privilege
secured by the Constitution shall be ripe for adjudication by
the district courts upon a final decision rendered by any
person acting under color of any statute, ordinance,
regulation, custom, or usage, of any State of territory of
the United States, that causes actual and concrete injury to
the party seeking redress.
``(2)(A) For purposes of this subsection, a final decision
exists if--
``(i) any person acting under color of any statute,
ordinance, regulation, custom, or usage, of any State or
territory of the United States, makes a definitive decision
regarding the extent of permissible uses on the property that
has been allegedly infringed or taken
``(ii)(I) one meaningful application, as defined by the
locality concerned within that State or territory, to use the
property has been submitted but has not been approved, and
the party seeking redress has applied for one appeal or
waiver which has not been approved, where the applicable
statute, ordinance, custom, or usage provides a mechanism for
appeal to or waiver by an administrative agency; or
``(II) one meaningful application, as defined by the
locality concerned within that State or territory, to use the
property has been submitted but has not been approved, and
the disapproval explains in writing the use, density, or
intensity of development of the property that would be
approved, with any conditions therefor, and the party
seeking redress has resubmitted another meaningful
application taking into account the terms of the
disapproval, except that--
``(aa) if no such reapplication is submitted, then a final
decision shall not have been reached for purposes of this
subsection, except as provided in subparagraph (B); and
``(bb) if the reapplication is not approved, or if the
reapplication is not required under subparagraph (B), then a
final decision exists for purposes of this subsection if the
party seeking redress has applied for one appeal or waiver
with respect to the disapproval, which has not been approved,
where the applicable statute, ordinance, custom, or usage
provides a mechanism of appeal or waiver by an administrative
agency; and
``(iii) in a case involving the use of real property, where
the applicable statute or ordinance provides for review of
the case by elected officials, the party seeking redress has
applied for but is denied such review.
``(B) The party seeking redress shall not be required to
apply for an appeal or waiver described in paragraph (1)(B)
if no such appeal or waiver, is available, if it cannot
provide the relief requested, or if the application or
reapplication would be futile.
(3) For purposes of this subsection, a final decision shall
not require the party seeking redress to exhaust judicial
remedies provided by any State or territory of the United
States.
``(f) Nothing in subsections (c), (d), or (e) alters the
substantive law of taking of property, including the burden
of proof borne by the plaintiff.''.

SEC. 3. UNITED STATES AS DEFENDANT.

[[Page H8955]]

was allegedly infringed or taken by the United States, shall
be ripe for adjudication upon a final decision rendered by
the United States, that causes actual and concrete injury to
the party seeking redress.
``(2) For purposes of this subsection, a final decision
exists if--
``(A) the United States makes a definitive decision
regarding the extent of permissible uses on the property that
has been allegedly infringed or taken; and
``(B) one meaningful application to use the property has
been submitted but has not been approved, and the party
seeking redress has applied for one appeal or waiver which
has not been approved, where the applicable law of the United
States provides a mechanism for appeal to or waiver by an
administrative agency.

The party seeking redress shall not be required to apply for
an appeal or waiver described in subparagraph (B) if no such
appeal or waiver is available, if it cannot provide the
relief requested, or if application or reapplication to use
the property would be futile.
``(3) Nothing in this subsection alters the substantive law
of takings of property, including the burden of proof borne
by the plaintiff.''

SEC. 4. JURISDICTION OF COURT OF FEDERAL CLAIMS.

Section 1491(a) of title 28, United States Code, is amended
by adding at the end the following:
``(3) Any claim brought under this subsection founded upon
a property right or privilege secured by the Constitution,
but allegedly infringed or taken by the United States, shall
be ripe for adjudication upon a final decision rendered by
the United States, that causes actual and concrete injury to
the party seeking redress. For purposes of this paragraph, a
final decision exists if--
``(A) the United States makes a definitive decision
regarding the extent of permissible uses on the property that
has been allegedly infringed or taken; and
``(B) one meaningful application to use the property has
been submitted but has not been approved, and the party
seeking redress has applied for one appeal or waiver which
has not been approved, where the applicable law of the United
States provides a mechanism for appeal to or waiver.

The party seeking redress shall not be required to apply for
an appeal or waiver described in subparagraph (B) if no such
appeal or waiver is available, if it cannot provide the
relief requested, or if application or reapplication to use
the property would be futile. Nothing in this paragraph
alters the substantive law of takings of property, including
the burden of proof borne by the plaintiff.''.

SEC. 5. EFFECTIVE DATE.

The amendments made by this Act shall apply to actions
commenced on or after the date of the enactment of this Act.

The CHAIRMAN. No amendment to the committee amendment in the nature
of a substitute is in order except a further amendment in the nature of
a substitute offered by the gentleman from Michigan [Mr. Conyers], or
his designee. That amendment shall be considered as read, shall be
debatable for 30 minutes, equally divided and controlled by the
proponent and an opponent, and shall not be subject to amendment.
If that further amendment is rejected or not offered, no other
amendment is in order except, No, 1, the Traficant amendment made in
order by the House today; and, No. 2, the amendment printed in part 2
of the report, which may be offered only by the Member designated in
the report, shall be considered as read, shall be debatable for 30
minutes, equally divided and controlled by the proponent and an
opponent, and shall not be subject to amendment.
Pursuant to the order of the House of today, the Chairman of the
Committee of the Whole may postpone until a time during further
consideration in the Committee of the Whole a request for a recorded
vote on the Traficant amendment made in order today by the order of the
House, and may reduce to not less than 5 minutes the time for voting by
electronic device on any postponed question that immediately follows
that recorded vote by electronic device without intervening business,
provided that the time for voting by electronic device on the first in
that series of questions shall not be less than 15 minutes.
The Conyers amendment not being offered, for what purpose does the
gentleman from Ohio rise?

Amendment Offered by Mr. Traficant

Mr. TRAFICANT. Mr. Chairman, I offer an amendment.
The Clerk read as follows:

Amendment offered by Mr. Traficant:
Insert the following after section 4 and redesignate the
succeeding section accordingly:

SEC. 5. DUTY OF NOTICE TO OWNERS.

Whenever a Federal agency takes an agency action limiting
the use of private property that may be affected by the
amendments made by this Act, the agency shall give notice to
the owners of that property explaining their rights under
such amendments and the procedures for obtaining any
compensation that may be due to them under such amendments.

Mr. TRAFICANT (during the reading). Mr. Chairman, I ask unanimous
consent that the amendment be considered as read and printed in the
Record.
The CHAIRMAN. Is there objection to the request of the gentleman from
Ohio?
There was no objection.
The CHAIRMAN. Pursuant to the order of the House today, the gentleman
from Ohio [Mr. Traficant] and a Member opposed each will control 5
minutes.
The Chair recognizes the gentleman from Ohio [Mr. Traficant].
Mr. TRAFICANT. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, I support, in principle, the fact that when a Federal
agency takes an action that limits the use of private property or
causes the damage in property values that compensation is in order, and
proper procedures affecting those goals shall be implemented.
In essence, I support H.R. 1534. I want to commend the sponsor, the
gentleman from California, Mr. Gallegly, and the gentleman from North
Carolina, Chairman Coble, for this measure. I have supported it in the
past. I support it today.
My measure was added as an amendment the last time this legislation
was offered on the floor, and unanimously accepted. Here is what it
says: When a Federal agency takes an action that limits the use of or
causes property damage, the agency shall give notice to that prisoner
explaining the rights they have and where they go for compensation, if
they qualify.
Let me say this: The average private property owner does not have
accountants and attorneys that monitor legislation. This is the right
thing to do.
Mr. COBLE. Mr. Chairman, will the gentleman yield?
Mr. TRAFICANT. I yield to the gentleman from North Carolina.
Mr. COBLE. Mr. Chairman, I thank the gentleman for yielding.
Mr. Chairman, I say to the chairman and to the gentleman from Ohio
[Mr. Traficant] and to the body, Mr. Chairman, that I have reviewed the
amendment offered by the gentleman from Ohio [Mr. Traficant] and I am
supportive thereof.
Mr. GALLEGLY. Mr. Chairman, will the gentleman yield?
Mr. TRAFICANT. I yield to the distinguished sponsor of the
legislation that I support, the gentleman from California.
Mr. GALLEGLY. Mr. Chairman, I thank the gentleman for yielding.
Mr. Chairman, I join with my colleague, the chairman of the
subcommittee, after having reviewed the amendment, and stand in strong
support of the amendment offered by the gentleman from Ohio [Mr.
Traficant]. I think it adds to the bill.
Mr. TRAFICANT. Mr. Chairman, I appreciate that, and I reserve the
balance of my time.
The CHAIRMAN. Is the gentlewoman from California [Ms. Lofgren]
opposed to the amendment?
Ms. LOFGREN. Yes, I am, Mr. Chairman.
The CHAIRMAN. The gentlewoman from California [Ms. Lofgren] is
recognized for 5 minutes.
Ms. LOFGREN. I yield myself such time as I may consume, Mr. Chairman.
Mr. Chairman, I recognize the motivation of the author of the
amendment, and I think the motivation is entirely honorable and one
that I concur with. I do, however, have grave reservations about the
actual language of the amendment and the implications and unintended
consequences that might occur. This is a very broad duty that is being
imposed by the amendment on the Federal Government. Let me just give an
example of why I think it is problematic.
In the Clean Water Act we, the National Government, make some very
stringent findings about what may and may not be discharged into a
stream. For example, discharging arsenic into a river is something that
we have tried to control and avoid. Under this amendment, control of
the discharge of arsenic into a stream would or could qualify as a
taking, because if you are

[[Page H8956]]

in a business that uses arsenic in manufacturing, and you are
constrained from using arsenic and discharging it, you have, in fact,
been impaired in the full utilization of your property. It could be a
taking under the act. There would be a duty to provide notice to the
business under the amendment.
I think that would be a very difficult thing for the Federal
Government to do. I would also like to make an additional point, which
is that there is no burden under the amendment to notify other private
property owners who are disadvantaged by the failure to proceed with
the Government regulation.
In the example I have previously outlined, for those downstream from
the polluter, if there is arsenic in the water, their right to use the
water for home consumption is going to be impaired. There is no duty
under the amendment to notify the downstream users that the pollution
is going to continue to be coming at them. I think that is a problem.
I do not plan to ask for a recorded vote on this amendment, but I
would think that narrowly drafting this amendment to cover land
regulation activities that are directly aimed at use of property might
go a long way toward perfecting this amendment and reaching what the
author hopes to do.
But in its current form, I think it is a massive new obligation for
the Federal Government. It will be impossible, actually, to accomplish.
Therefore, it will lead to litigation and further costs and expenses
that none of us can afford, and all of us would like to avoid. These
are all unintended consequences but nevertheless, severe ones.
Therefore, I would urge opposition to this well-intentioned amendment.
Mr. Chairman, I reserve the balance of my time.
Mr. TRAFICANT. Mr. Chairman, I yield myself such time as I may
consume.
I could understand the grave reservations that the gentlewoman from
California has, but she cited as an example the discharge of arsenic
into a stream. If the Federal Government or one of its agents or
agencies has discharged such a pollutant into our stream, the Traficant
amendment says that any private property owner affected by it would not
only be eligible under the bill, but they would be notified by the
Traficant amendment that it has occurred.
Mr. Chairman, the Traficant amendment is very clear. It says if a
Federal agency, a Federal agency takes an action. If a Federal agency
is responsible for discharging arsenic, the Traficant amendment says
they shall notify all of the people. That is why it is so drafted, so
everyone downstream in fact would have to be notified; would they not?
There would have to be a notice, and if there was damage that was
created from that, they would be eligible for compensation, and what
are their procedures where they can go for such compensation.
That is why it was unanimously accepted. This is the language that
ensures that an average private property owner has some basic
notification, more than anything else. That is the trouble around here.
We pass laws at times that the legal eagles understand, identify,
distill, and digest, and then come back and lobby to amend them, but
the average American may not even know there is a protection that
exists, or they are even eligible for compensation for an action that
was taken wrongly; maybe not intended to be wrongful action, but it
certainly was, such as arsenic in the river.
Mr. Chairman, I reserve the balance of my time.
Ms. LOFGREN. Mr. Chairman, I yield myself the balance of my time.
Mr. Chairman, I would note that the amendment says, whenever a
Federal agency takes an agency action limiting the use of private
property.
In the example I used earlier, if the Environmental Protection Agency
limits a business from discharging arsenic into the creek, they have
impacted and limited the use of that private property, if the arsenic
is important to the manufacturing process.
Therefore, the polluter, the arsenic deliverer to the stream, would,
under this amendment, be required to be notified of the limitation on
the use of his or her property. And arguably also be entitled to
compensation for the limitation of the use of their property.
We will not, however, under the amendment be required to notify
downstream users that the upstream user and deliverer of arsenic to the
stream is not going to be constrained from so polluting because of the
implication of this amendment, that essentially will stay action
because of access to court.
I understand that the gentleman from Ohio [Mr. Traficant] wants the
average American to have notice. I do, too. But as a lawyer and prior
professor of law, we also need to look at the plain language that we
adopt. This will lead to unintended consequences certainly that the
gentleman from Ohio [Mr. Traficant] very clearly from his prior
comments does not intend, nor do I. That is the problem with the
amendment.
Mr. Chairman, I reserve the balance of my time.
Mr. TRAFICANT. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, if there is any language that needs to simplify this,
that expresses the legislative intent in debate here today, I will not
oppose it in conference. But the legislative intent and history is
clear. Anybody downstream that would be subject to arsenic from the
gentlewoman's debate here today would be eligible for notification and
for compensation.

{time} 1300

That is the purpose. If there is language in here that is so nebulous
that the gentlewoman from California [Ms. Lofgren] feels that it may in
fact negate that intention, then certainly, my request is to make those
small minor adjustments to effect that legislative intent.
But, Mr. Chairman, let me say this: When an average citizen's
property is being limited or, in fact, the value is being diminished
therein, they should get notice that such action is being taken and
where they go for proper procedures. And if this amendment does not do
that, then I do say to the drafters of the bill for those additional
substantive language to be placed in there to, in fact, express that
concern.
With that, I would hope that the gentlewoman would take that in good
faith and help to construct that language.
The CHAIRMAN pro tempore (Mr. Foley). The question is on the
amendment offered by the gentleman from Ohio [Mr. Traficant].
The amendment was agreed to.

Amendment in the Nature of a Substitute Offered by Mr. Boehlert

Mr. BOEHLERT. Mr. Chairman, I offer an amendment in the nature of a
substitute.
The CHAIRMAN pro tempore. The Clerk will designate the amendment in
the nature of a substitute.
The text of the amendment in the nature of a substitute is as
follows:

Amendment in the nature of a substitute offered by Mr.
Boehlert:
Strike all after the enacting clause and insert the
following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Private Property Rights
Implementation Act of 1997''.

SEC. 2. UNITED STATES AS DEFENDANT.

Section 1346 of title 28, United States Code, is amended by
adding at the end the following:
``(h)(1) Any claim brought under subsection (a) that is
founded upon a property right or privilege secured by the
Constitution, but was allegedly infringed or taken by the
United States, shall be ripe for adjudication upon a final
decision rendered by the United States, that causes actual
and concrete injury to the party seeking redress.
``(2) For purposes of this subsection, a final decision
exists if--
``(A) the United States makes a definitive decision
regarding the extent of permissible uses on the property that
has been allegedly infringed or taken; and
``(B) one meaningful application, as defined by the
relevant department or agency, to use the property has been
submitted but denied, and the party seeking redress has
applied for but is denied one appeal or waiver, where the
applicable law of the United States provides a mechanism for
appeal to or waiver by an administrative agency.

The party seeking redress shall not be required to apply for
an appeal or waiver described in subparagraph (B) if no such
appeal or waiver is available or if such an appeal or waiver
would be futile.''.

SEC. 3. JURISDICTION OF COURT OF FEDERAL CLAIMS.

[[Page H8957]]

final decision rendered by the United States, that causes
actual and concrete injury to the party seeking redress. For
purposes of this paragraph, a final decision exists if--
``(A) the United States makes a definitive decision
regarding the extent of permissible uses on the property that
has been allegedly infringed or taken; and
``(B) one meaningful application, as defined by the
relevant department or agency, to use the property has been
submitted but denied, and the party seeking redress has
applied for but is denied one appeal or waiver, where the
applicable law of the United States provides a mechanism for
appeal or waiver.

SEC. 4. EFFECTIVE DATE.

The amendments made by this Act shall apply to actions
commenced on or after the 120th day after the date of the
enactment of this Act.

The CHAIRMAN pro tempore. Pursuant to House Resolution 271, the
gentleman from New York [Mr. Boehlert] and the gentleman from North
Carolina [Mr. Coble] will each control 15 minutes.
The Chair recognizes the gentleman from New York [Mr. Boehlert].
Mr. BOEHLERT. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, I rise in support of my substitute. Here is what the
substitute would do. It would allow those who sue the Federal
Government over property rights to get to Federal court more rapidly.
It does that in language that is virtually identical to sections 3 and
4 of the manager's amendment.
Mr. Chairman, here is what the substitute would not do. It would not
interfere in any way with local government. It does that by eliminating
section 2 of the manager's amendment. That is the section that allows
Federal judges to intrude on local decision-making.
As Federal officials, we ought to limit ourselves to effecting
Federal decisions. That is what my substitute does.
Mr. Chairman, I urge support for the Boehlert amendment. It is the
moderate approach to property rights. It grants relief without
trampling on Federalism. It helps property owners without preventing
local communities from deciding their own future. I urge its adoption.
Mr. Chairman, I reserve the balance of my time.
Mr. COBLE. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I rise in opposition to the Boehlert amendment in the
nature of a substitute to H.R. 1534. Very frankly, Mr. Chairman, the
amendment will effectively gut the bill.
The fifth amendment to the Constitution prohibits the government from
taking private property without just compensation. This prohibition is
applicable to local governments through the 14th amendment. H.R. 1534
addresses the procedural difficulties encountered by property owners
alleging the local or Federal Government has taken their property.
Currently, property owners claiming a fifth amendment taking by local
governments do not have a realistic option to file in Federal court.
Under current case law, a takings plaintiff must meet both the ripeness
standard, meaning have a final decision regarding the permissible uses
on the property and exhaust all State remedies and overcome the well-
documented abuse of the abstention doctrine which Federal judges use to
avoid takings cases. Federal judges routinely abstain from takings
cases even when the claim alleges only a Federal fifth amendment claim
based on action by a local government.
H.R. 1534 addresses this problem by prohibiting Federal judges from
abstaining when the claim involves only a Federal fifth amendment
claim, even when the taking was done by local governments.
Mr. Chairman, the Boehlert amendment strikes the provisions of the
bill which are applicable to local governments, leaving in the
provisions which apply to the United States as a defendant. Mr.
Chairman, this would exempt the vast majority of private property
owners from the relief and assistance that H.R. 1534 provides.
If the United States is a defendant, a takings claimant will have
very little trouble getting into Federal court. However, claimants
alleging a Federal fifth amendment taking by local government will
continue to operate without any certainty as to when their case is ripe
for Federal adjudication and continue to be routinely dismissed by
Federal judges avoiding takings cases.
Mr. Chairman, during the past couple of weeks, our staff and the
staff of the gentleman from California [Mr. Gallegly], the sponsor of
the bill, have worked tirelessly with the staff of the gentleman from
New York [Mr. Boehlert] to come to an agreement on several issues, and
I think the gentleman from New York will admit to that.
On October 15, 1997, the staff of the gentleman from New York handed
a list of amendments that needed to be made in order to gain the
gentleman's support for the bill. The manager's amendment incorporated
each one of these items, either precisely as requested or in spirit. It
is not an exaggeration to say that we bent over backward to accommodate
the gentleman's concerns about H.R. 1534. The Boehlert amendment does
not reflect the concerns raised in those meetings, but a complete
gutting of the bill.
Mr. Chairman, I urge my colleagues to vote ``no'' on the Boehlert
amendment in the nature of a substitute for H.R. 1534.
Mr. Chairman, I reserve the balance of my time.
Mr. BOEHLERT. Mr. Chairman, I yield myself 30 seconds.
Mr. Chairman, it has been alleged that the manager's amendment
accommodates all of our objections to the bill. This simply is not so.
The fundamental flaw in this bill is not addressed in the manager's
amendment. It does now say that if a zoning board offers alternatives,
a developer must appeal one more time. That is good. But the bill still
removes all incentives to negotiate because a developer can go to
Federal court rather than follow the zoning board's instructions.
Moreover, the bill still explicitly takes State courts out of the
process.
Mr. Chairman, I yield 2 minutes to the distinguished gentlewoman from
New Jersey [Mrs. Roukema].
Mrs. ROUKEMA. Mr. Chairman, I rise in strong support of the Boehlert
amendment and, contrarily, I do not believe that this guts the bill; it
enhances it.
Mr. Chairman, there is clear evidence that we do need something to
ensure that the property owners are afforded their day in court.
Several Law Review articles agree that the current takings ripeness
barriers are unreasonable and that the obstacles confronting property
owners are often insurmountable.
However, I fear, in fact I am convinced, that this bill, H.R. 1534,
swings the pendulum too far in the other direction. I commend to my
colleagues a quote from a recent letter sent by the National Governors'
Association, the National League of Cities, and the Conference of
Mayors. And I quote, ``This represents,'' meaning the bill, ``a
significant infringement on State and local sovereignty.'' Mr.
Chairman, I do not know why Republicans want to do that. But State and
local sovereignty, ``and interferes with our ability to balance the
rights of certain property owners against the greater community good or
against the rights of other property owners in the same community. It
also represents a significant new cost shift to State and local
governments as we are forced to resolve disputes in the Federal
judiciary instead of through established State and local procedures.''
Mr. Chairman, it is for this reason, all these reasons, of course,
that I urge support of the Boehlert amendment.
Mr. Chairman, I would say to my colleagues, by the way, I have always
lived under the rule that all politics is local and there is nothing
more local than private property and zoning questions. Let us make sure
that we are not shifting the balance from our local communities to the
Federal Government. I urge my colleagues to support the Boehlert
amendment.
Mr. COBLE. Mr. Chairman, I yield 2 minutes to the gentleman from
California [Mr. Calvert].
Mr. CALVERT. Mr. Chairman, I rise today in support of H.R. 1534, the
Private Property Rights Implementation Act. As a Member representing
California, as well as a member of the Western Caucus, I am acutely
aware of the need for legislation to protect priority property owners,
especially those who have fallen victim to the current administration's
ongoing war with the West.

[[Page H8958]]

H.R. 1534 is fair legislation. It simply allows property owners
injured by Government action equitable access to the Federal courts.
Currently, 80 percent of Federal property claims are thrown out of the
court before their merits can be debated. With a statistic like that no
one can argue that the current process is fair.
No matter what reason the Government has for restricting private
property use, and there are many legitimate reasons, there is no excuse
for denying landowners their day in court.
Mr. Chairman, I urge my colleagues to oppose all weakening amendments
to H.R. 1534, especially the Boehlert amendment. This amendment would
eliminate the bill provisions allowing landowners to take their appeals
to Federal court. Instead, the amendment states it would help
landowners get to court ``more quickly.'' But what does that mean, more
quickly?
It currently takes an average of 9\1/2\ years for the process to be
resolved. ``More quickly'' could mean 8 or maybe 7 years, but it does
not make that timeframe any more acceptable. This is not an issue about
taking power away from the States and localities, as the Boehlert
amendment would lead my colleagues to believe. H.R. 1534 is about the
rights of property owners to have their claims considered fairly and in
a timely manner.
Mr. Chairman, I urge my colleagues to oppose the Boehlert amendment
and support H.R. 1534.
Mr. BOEHLERT. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, I would like to point out to the gentleman from
California [Mr. Calvert] that his State attorney general, Attorney
General Lungren, a good Republican, is opposed to this bill.
Mr. Chairman, I yield 2 minutes to the gentleman from Maryland [Mr.
Gilchrest].
Mr. GILCHREST. Mr. Chairman, I would like to address my colleagues
with this concept: how many Members on this House floor are in favor of
judicial activism where the unelected will determine land use and local
zoning ordinances in their community? Who is in favor of that? If
Members are in favor of judicial activism and if they are in favor of
the unelected judicial judges determining local zoning in their area,
then they will vote against the Boehlert amendment.
If, however, Members are in favor of expedited process to the Federal
courts whenever a Federal action impedes or regulates private property,
then they will vote for the Boehlert substitute.
The Boehlert amendment in the nature of a substitute expedites the
process to Federal courts whenever a Federal action regulates Federal
property. What the bill does without the Boehlert amendment is make
Federal action control local land use and local zoning. That is the
unintended consequences. The bill would send to Federal courts cases to
decide local zoning and local land use.
Now, Mr. Chairman, the small community might be able to afford State
courts, but there is no way they are going to be able to afford Federal
courts. We all believe in the fifth amendment. We strongly believe that
if property rights are taken away for the public good, constitutionally
landowners should be compensated and they will be compensated.
However, if the local zoning board, the planning commission, decides
in their management of their community that someone's property is going
to cause public harm, that is a different story.
Mr. Chairman, I urge an ``aye'' vote on the Boehlert substitute.
Mr. COBLE. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I want to say to the gentleman from New York [Mr.
Boehlert], my good friend, I did not mean to mislead, when he said that
the manager's amendment did not address all of his problems, what I
said was that it addressed them either precisely or exactly or in
spirit. And I think that is probably an accurate statement, although
the gentleman's amendment did go a little farther than during the
discussion.
Mr. BOEHLERT. Mr. Chairman, will the gentleman yield?
Mr. COBLE. I yield to the gentleman from New York.
Mr. BOEHLERT. Mr. Chairman, the spirit is one thing, but reality is
something altogether different. There still is a fundamental flaw, as
the gentleman from North Carolina would acknowledge.
Mr. COBLE. Mr. Chairman, reclaiming my time, we will talk about that
another day.
Mr. Chairman, I yield 2\1/2\ minutes to the gentleman from Michigan
[Mr. Barcia].
Mr. BARCIA. Mr. Chairman, I rise in opposition to the Boehlert
amendment and in strong support of the passage of H.R. 1534.
Mr. Chairman, I want to thank the gentleman from North Carolina [Mr.
Coble] and the gentleman from California [Mr. Gallegly] and the other
cosponsors for their leadership on this very vital issue that is so
important to so many of our constituents across the country.
Mr. Chairman, many of us here today were elected so that we could
make the Federal Government smaller and give more power to State and
local governments, and I am proud that we are making progress in that
regard. But all of us were elected and are sworn to protect and defend
the Constitution. We should never waiver from that protection.
Mr. Chairman, as we continue to move toward a larger role for State
and local government, the protection and defense of the Constitution
must remain in the forefront of our minds, and perhaps no element of
the Constitution is more important than the Bill of Rights.

{time} 1315

House Resolution 1534 goes far toward ensuring that as local
governments rightfully play larger roles, the rights of the citizenry
do not fall prey to overzealous regulation. This bill does not infringe
on the rights of States or localities to regulate land use. It merely
ensures that the citizen will receive final decisions on those
legitimate principles of governance in an expeditious manner.
Even now, before the goal of devolution is fully achieved, takings
claims brought under the fifth amendment are lengthy and time
consuming. They are treated, as Justice Brennen of the U.S. Supreme
Court said, like stepchildren to the Bill of Rights. The bipartisan
authors of House Resolution 1534 have recognized that this current
situation, already a problem, needs to be addressed before the laudable
goal of devolution exacerbates the situation. As Robert F. Kennedy once
said, back in 1964, justice delayed is democracy denied.
Some elements of State and local government oppose this bill because
House Resolution 1534 will, as the U.S. Conference on Mayors writes,
lead to increased liability for municipalities. What more blatant
admission is there than that this bill is needed? If the municipalities
are engaging in activities for which the courts would find them liable,
they should cease or pay in a timely manner without forcing the
citizens into costly administrative procedures. The Constitution
requires no less. House Resolution 1534 ensures that that will happen.
Mr. BOEHLERT. Mr. Chairman, I yield 2 minutes to the gentleman from
Massachusetts [Mr. Delahunt].
Mr. DELAHUNT. Mr. Chairman, I rise in support of the Boehlert
amendment. I am particularly pleased to hear so many Members on the
other side speak to the issues of States rights, devolution. It was the
authors of the Contract With America that said they wanted to return
power to the people through State and local governments. Yet the bill,
H.R. 1534, that is before this Congress would take local land disputes
that have always been decided by State and local authorities and turn
them over to the Federal courts. Whatever happened to devolution and
State rights?
It also was the authors of the Contract With America that said they
wanted to limit judicial activism. Yet the bill sweeps away the
abstention doctrine which in effect restrains judicial judges. It also
eviscerates the ripeness doctrine which prevents premature Federal
involvement in such cases. It invites the Federal courts to strike down
the actions of zoning boards and city councils across the land.
Mr. Chairman, let us give federalism, devolution, and States rights
another

[[Page H8959]]

chance and let us support the Boehlert amendment.
Mr. COBLE. Mr. Chairman, may I inquire of the Chair the time
remaining on both sides.
The CHAIRMAN pro tempore (Mr. Foley). The gentleman from North
Carolina [Mr. Coble] has 7 minutes remaining, and the gentleman from
New York [Mr. Boehlert] has 7\1/2\ minutes remaining.
Mr. COBLE. Mr. Chairman, I yield 1 minute to the gentleman from Ohio
[Mr. Traficant].
(Mr. TRAFICANT asked and was given permission to revise and extend
his remarks.)
Mr. TRAFICANT. Mr. Chairman, this bill does not give property owners
any new authority to sue the cities in Federal court. They have it. I
believe that the Boehlert substitute would gut this bill and would
treat property owners differently. That is my concern.
Let me say this, the great Vince Lombardi was loved by everybody, but
when they asked Mr. Willie Davis why they loved him, here is what he
said, because he treats us all alike, like dogs at times, but all
alike.
I think that the gentleman's substitute would put and inflect some
differences in the way property owners would be treated.
Local officials still govern this. The process would be expedited
under this bill. I think the bill is, in essence, good.
I would like to see the gentleman work in conference for some of the
ideas in his substitute which are good.
Mr. BOEHLERT. Mr. Chairman, I would like to point out to my
distinguished colleague from Ohio that this simply says that Federal
courts deal with Federal issues. Local courts, State courts deal with
local and State issues. Washington is not the source of all wisdom.
Mr. Chairman, I yield 2 minutes to the gentleman from Delaware [Mr.
Castle], former Governor.
Mr. CASTLE. Mr. Chairman, I thank the gentleman for yielding me the
time.
This is a very interesting bill. It is very conflicted in terms of
the usual beliefs that we have here. We basically have private property
rights versus local decisionmaking. The Republican Party which sides
with local decisionmaking does not in this particular case.
I can understand the argument for private property rights, but then
to give it to the Federal judiciary, which is not exactly an entity
that is supported readily by Republicans, strikes me as being highly
unusual. I do not know how they are really qualified to handle these
kinds of decisions on a regular, simple appeal at an early process. And
that is what this is all about.
Could we argue that eventually the appeal could go up to Federal
court? It is very unlikely. Now, it is very likely that the Federal
court is going to spend about half of its time handling these local
property appeals. They are totally ill equipped to do this. It just is
not going to work.
Do we want to expand the Federal judiciary to do this? We should note
that the National Governors Association, as has been stated, 39 State
attorneys general, the Judicial Conference of the United States have
all come out against this bill. They have serious problems with it and
they rightfully should.
This amendment is a pretty simple amendment. I support the amendment.
Sections 3 and 4 basically are being changed here. It eliminates the
direct appeal to the Federal courts on local property decisions, which
really, in my judgment, absolutely should be done. But if one exhausts
everything, they could still do it. If one is dealing with a Federal
agency, they could still do it. So it still leaves the essence of the
bill.
Yes, I understand the concern. I have a lot of respect for the
sponsor of the legislation because I believe there are some private
property concerns that need to be addressed out there. But this
unfortunately is not the right answer. The bill goes too far. Now that
we have had a chance to really study that, I think we need to
understand it.
The best thing we can do today is to pass the Boehlert amendment, a
good amendment which adjusts the bill and makes it correct, and then go
on and pass the rest of the legislation at that point. I would urge
everybody to look at this carefully. These are significant issues and
the burden that we are shifting over to the Federal courts is something
we should not do. I encourage support of the Boehlert amendment.
Mr. COBLE. Mr. Chairman, I yield 2 minutes to the gentleman from
Texas [Mr. Stenholm].
(Mr. STENHOLM asked and was given permission to revise and extend his
remarks.)
Mr. STENHOLM. Mr. Chairman, I rise in strong support of H.R. 1534 and
in stronger opposition to the Boehlert amendment. The bill, the base
bill is an equitable solution aimed at balancing the rights of private
property owners with increased environmental, economic, and land use
concerns. The fifth amendment states that private property shall not be
taken for public use without just compensation. The legislation before
us today is a bipartisan and moderate approach that guarantees the
protection of the fifth amendment. The Boehlert amendment guts the
heart of H.R. 1534 by removing equal access to Federal courts for
property owners.
The base bill is a targeted limited bill that does not define when a
taking has occurred. Consequently, the proper trigger point for
compensation does not need to be debated. The Boehlert amendment
creates a dangerous precedent by forcing Federal courts to deal
differently with property rights cases depending on who the defendant
is. The base bill does not give Federal courts new authority on
questions that should be answered in State courts, rather, it provides
an expedited way to resolve State issues.
Furthermore, this bill does not amend environmental law or regulation
which was a point of contention in previous debate. Simply put, this
legislation would provide for quicker and more straightforward access
to Federal courts. The Boehlert amendment micromanages the Federal
courts.
I would like to commend the gentleman from California [Mr. Gallegly]
and other supporters of H.R. 1534 for their efforts to find a new way
of reconciling the difficult issues addressed here. This legislation is
balanced and fair. I urge my colleagues to support the base bill and
oppose strenuously the Boehlert amendment which guts the base bill.
Mr. BOEHLERT. Mr. Chairman, I reserve the balance of my time.
Mr. COBLE. Mr. Chairman, I yield 1 minute to the gentleman from
California [Mr. Gallegly], a member of the Committee on the Judiciary
and primary sponsor of the bill.
(Mr. GALLEGLY asked and was given permission to revise and extend his
remarks.)
Mr. GALLEGLY. Mr. Chairman, I stand in strong opposition to this
amendment. I would just like to respond to the gentleman from
Massachusetts [Mr. Delahunt] and his comments. I am also very pleased
to see the number of Democrats we have in strong opposition to the
Boehlert amendment.
As a former mayor, I could not agree more with those who have argued
for local control and decisionmaking. What we are trying to do is to
provide some certainty to a process that can otherwise be very open-
ended. What the bill now says is that the property owner must take a
meaningful application, then if the locality chooses to deny that
application, they should explain why in writing. If they do not approve
that application, they should explain what type of development they
would accept.
Mr. Chairman, I ask my colleagues to strongly oppose this amendment.
It guts the bill. I hope the Members will join me in helping to
preserve the reforms that are intended in this legislation.
I rise in opposition to the amendment by the gentleman from New York.
Although the gentleman has made a number of positive suggestions about
the bill recently, the amendment he is offering today is quite severe.
The amendment on the floor today will gut an extremely important part
of H.R. 1534.
It is very important that we do not lose sight of the central point
of this bill: Federal Constitutional property rights do not empower
Federal judges to make land use decisions. H.R. 1534 would not empower
Federal judges to decide whether a certain piece of land should be used
for a grocery store or for a hair salon. Local governments will
continue to have their traditional powers to make and enforce zoning
regulations.
Some of the people who are screaming the loudest about local control
of all land-use decisions have also been big supporters of having

[[Page H8960]]

Federal environmental laws micromanage how land is used. Federal
endangered species protections certainly interfere with how land is
used. No locality can regulate land use in a way that does not comply
with Federal wetlands protections. There are probably many other
environmental laws, enforceable in Federal court, that directly impact
local governments or lands use decisions.
H.R. 1534 provides ample opportunity for the local process to work so
that appropriate zoning and land use regulation can proceed.
What we are trying to do is provide some certainty to a process that
can be otherwise very open-ended. What the bill now says, is that the
property owner must make a meaningful application. Then, if the
locality chooses to deny that application they should explain why, in
writing. If they will not approve the application, they should explain
what type of development they would accept.
Taking into account this information, the landowner must reapply. If
that application is not approved, then he or she must appeal the
decision or seek a waiver.
As a former mayor, I could not agree more with those who have argued
for local control and decision-making. I might also note that many of
the cosponsors of H.R. 1534 bring to this debate extensive knowledge of
State and local government--133 of the members supporting the bill
previously served as mayors, city council members, or State
legislators. They bring to this debate a very practical understanding
of what is at stake, and they support this legislation.
The question before us today is whether Americans should have
reasonable access to the Federal courts to enforce Federal rights. I
hope the Members of the House will support H.R. 1534 to provide legal
protections that are fair and effective.
Mr. COBLE. Mr. Chairman, I yield 1 minute to the gentleman from
California [Mr. Pombo].
(Mr. POMBO asked and was given permission to revise and extend his
remarks.)
Mr. POMBO. Mr. Chairman, I thank the gentleman for yielding me this
time.
Basically what we have here is the age-old debate, the debate of
whether or not we have power to the government or power to the people.
We get down to this basic debate many times over different issues,
especially over private property issues. Whether the argument is to
protect the power that the government controls over its citizens at the
Federal level, the State level, or the local level, that is a debate
that we continually hear from this particular side on this issue. They
want to maintain that power over the citizenry.
On the other side of this issue what we have is people who are
arguing in favor of the private property owner, of the individual
citizen, of the individual that we all represent. I think that that is
one of the important distinctions in this debate.
The importance of this underlying legislation is an attempt to give
private property owners their so-called day in court. That is the
effort that is being made. I admit that this bill does not go as far as
I would like it to. I admit that the underlying legislation is a
moderate attempt to achieve a very worthwhile goal. The Boehlert
amendment guts even a moderate attempt to try to achieve that.
Mr. BOEHLERT. Mr. Chairman, I yield myself the balance of my time.
Mr. Chairman, for those who say that my substitute guts the bill, I
would point out that my substitute retains section 3 and 4 of the
manager's amendment. Are the sponsors saying that those sections of the
bill are meaningless? I do not think so.
To the previous speaker who says there is a choice, do we have power
to the Government or power to the people? I say the choice is, do we
have all power vested in Washington, DC, in the Federal Government, or
do we leave to State and local governments power that they so jealously
guard that they want to preserve, the power to make the decisions at
the local level about local zoning issues?
Should the Federal Government determine whether or not we will have a
pornographic parlor on some corner in some small hamlet in some State
in America? I do not think so. I think the local communities can deal
very effectively with that issue.
I would point out that the National Governors Association has spoken
eloquently to this bill. Let me read an excerpt from their letter which
has been addressed to all of our colleagues here:

We are writing to express our strong opposition, strong
opposition, to H.R. 1534, the so-called Private Property
Rights Implementation Act of 1997.

Continuing, the Governors letter says,

the result will be substantially more Federal involvement in
decisionmaking on purely local issues.

{time} 1330

This represents a significant infringement on State and
local sovereignty and interferes with our ability to balance
the rights of certain property owners against the greater
community good or against the rights of other property owners
in the same community.

Now, that is an excerpt of a letter from the National Governors'
Association signed by Gov. George Voinovich, chairman of the National
Governors' Association, Mark Schwartz, councilmember, Oklahoma City,
president, National League of Cities, and Mayor Paul Helmke, city of
Fort Wayne, president, U.S. Conference of Mayors.
As a matter of fact, my bill is the sensible approach to this issue
because the basic bill, H.R. 1534, is not just opposed by me, not just
opposed by a couple of Representatives of this great institution, it is
opposed by the National Governors' Association, most State attorneys
general, 40 at last count, including Dan Lungren, the attorney general
of the State of California, including the attorney general of the State
of New York, including the attorney general of the State of Texas,
including the attorney general of the State of Connecticut, of
Delaware, of Florida, of Georgia, of Hawaii, of Idaho, of Indiana, of
Iowa, of Louisiana, of Maine, of Maryland, of Massachusetts, of
Michigan, of Minnesota, of Mississippi, of Missouri, Montana, Nevada,
New Hampshire, New Mexico, North Dakota, Oklahoma, Oregon,
Pennsylvania, Rhode Island, Tennessee, Vermont, the attorney general of
the Virgin Islands, the attorney general of Guam, the attorney general
of the State of Washington, the attorney general of the State of
Wisconsin.
The list goes on and on. Not only the attorneys general but the
Judicial Conference of the United States, chaired by the Chief Justice
of the Supreme Court of the United States, a very conservative
Republican, Chief Justice Rehnquist. It is opposed by the National
League of Cities, the U.S. Conference of Mayors, and every single
environmental group in America.
Why do they oppose it? Because it simply does not make sense. The
Republicans, my colleagues, my friends, are saying they favor
devolution. They want to send more authority back to State and local
governments, and I think that makes a lot of sense. This bill does just
the opposite.
Mr. VENTO. Mr. Chairman, will the gentleman yield?
Mr. BOEHLERT. I yield to the gentleman from Minnesota.
Mr. VENTO. Mr. Chairman, I want to rise in support of the gentleman's
amendment and in opposition to the underlying bill.
I think the gentleman has done good work in terms of this. This helps
the bill. It does not completely fix it, but I think it does respect
the issue of restraint, in terms of the Federal Court, which is
something that I think others have spoken to.
So I thank the gentleman, commend him for his work, and support his
amendment.
Mr. BOEHLERT. Mr. Chairman, reclaiming my time, I point out what the
Judicial Conference of the United States says, and keep in mind we are
talking about a basic issue decided by the Supreme Court that this bill
proposes to overturn. That issue was decided 7 to 1 by the Supreme
Court, with all the conservative justices voting in favor of Williamson
County versus The Bank of Hamilton. Williamson County in Tennessee.
The Judicial Conference of the United States says the judicial
conference expresses concern with the Private Property Rights
Implementation Act of 1997. The bill would alter deeply ingrained
Federalism principles by prematurely involving the Federal courts in
property regulatory matters that have historically been processed at
the State and local level.
Finally, let me point out to my colleagues that it has been said
repeatedly that my concerns have been mainly accommodated, some
directly, some in spirit. Well, in spirit, that leaves a lot for
interpretation.

[[Page H8961]]

The basic fact of the matter is, there is a fatal flaw in this bill.
It does now say that if a zoning board offers an alternative, a
developer must appeal one more time. But the bill removes all
incentives for negotiations.
I urge support of the Boehlert substitute and opposition to the basic
bill unless it is properly amended.
Mr. COBLE. Mr. Chairman, I yield the balance of my time to the
gentleman from California [Mr. Campbell].
(Mr. CAMPBELL asked and was given permission to revise and extend his
remarks.)
Mr. CAMPBELL. Mr. Chairman, the States are the issue in this debate,
and so the Boehlert amendment, the amendment of my good friend, will
destroy the purpose of this bill. The debate is over States. Not
Federal Government encroachment, but State government encroachment.
That is why we are here. It is because when individual plaintiffs
with objections under the fifth amendment to the Constitution complain
that State governments have interfered with their rights, they are kept
from getting an adjudication in Federal court in anything like an
expedited or appropriate time frame. So if we remove from the bill all
those provisions that deal with the States and local government, which
is what the Boehlert amendment does, we do not have a bill worth
discussing.
We are not here because of Federal Government takings, we are here
because of allegations against State governments and local governments.
So, really, voting for the Boehlert amendment is voting against the
bill. Do not make any mistake about it, that is what it is.
I do not think we should vote against the bill, and here is why.
Think what the Federal courts are supposed to do in the protection of
constitutional rights. We do not tell Federal court plaintiffs to go
somewhere else and wait their time when they are complaining of voting
rights, when they are complaining of discrimination, of poll tax,
illiteracy tax, being told they cannot have a right to the ballot. We
do not say go take it to the board of election commissioners.
When there is a restrictive zoning, keeping someone out of an area
because of their race, we do not say, well, take it to 20 different
appeals to the zoning commissioners of the particular State, county, or
locality.
And we deal with school desegregation. The day the Governor stands in
the school and says someone may not come in there because of their
race, that day the plaintiff goes into Federal court.
Why is the fifth amendment less? Why are plaintiffs under the fifth
amendment to our Constitution not entitled to that same access to the
Federal courts that are available to those who plead under the other
provisions that I have cited?
The managers of the bill have accepted my amendment. I conclude by
quoting it. ``Nothing in this bill alters the substantive law of
takings of property, including the burden of proof borne by
plaintiff.'' Vote for the bill, oppose the Boehlert amendment.
The CHAIRMAN pro tempore (Mr. Rogan). The question is on the
amendment in the nature of a substitute offered by the gentleman from
New York [Mr. Boehlert].
The question was taken; and the Chairman pro tempore announced that
the noes appeared to have it.

Recorded Vote

Mr. BOEHLERT. Mr. Chairman, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 178,
noes 242, not voting 14, as follows:

[Roll No. 518]

AYES--178

Abercrombie
Ackerman
Andrews
Baldacci
Barrett (WI)
Bass
Becerra
Bentsen
Bereuter
Berman
Blagojevich
Boehlert
Bonior
Borski
Boucher
Brown (FL)
Brown (OH)
Capps
Cardin
Carson
Castle
Clay
Clayton
Costello
Coyne
Cummings
Davis (FL)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Dellums
Dicks
Dixon
Doyle
Ehlers
Engel
Eshoo
Etheridge
Ewing
Farr
Fattah
Fawell
Filner
Foglietta
Forbes
Fox
Frank (MA)
Frelinghuysen
Furse
Ganske
Gephardt
Gilchrest
Gilman
Goss
Greenwood
Gutierrez
Hall (OH)
Hamilton
Hastings (FL)
Hefner
Hinchey
Horn
Jackson (IL)
Johnson (CT)
Johnson (WI)
Johnson, E. B.
Kanjorski
Kaptur
Kelly
Kennedy (MA)
Kennedy (RI)
Kildee
Kilpatrick
Kind (WI)
Kleczka
Klink
Klug
Kucinich
LaFalce
Lampson
LaTourette
Lazio
Leach
Levin
Lewis (GA)
Lipinski
Lofgren
Lowey
Luther
Maloney (CT)
Maloney (NY)
Manton
Markey
Mascara
Matsui
McCarthy (MO)
McCarthy (NY)
McDermott
McGovern
McHale
McKinney
McNulty
Meehan
Meek
Menendez
Millender-McDonald
Miller (CA)
Miller (FL)
Minge
Mink
Moakley
Mollohan
Moran (VA)
Morella
Murtha
Nadler
Neal
Obey
Olver
Owens
Pastor
Payne
Pelosi
Pomeroy
Porter
Portman
Poshard
Price (NC)
Ramstad
Rangel
Reyes
Rivers
Rodriguez
Roemer
Roukema
Roybal-Allard
Rush
Sabo
Sanchez
Sanders
Sanford
Sawyer
Saxton
Scarborough
Schumer
Scott
Sensenbrenner
Serrano
Shaw
Sherman
Skaggs
Slaughter
Smith (NJ)
Smith, Adam
Snyder
Spratt
Stabenow
Stokes
Stupak
Sununu
Thurman
Tierney
Torres
Towns
Velazquez
Vento
Visclosky
Walsh
Waters
Watt (NC)
Waxman
Weygand
Wise
Woolsey
Wynn
Yates

NOES--242

Aderholt
Allen
Archer
Armey
Bachus
Baesler
Baker
Ballenger
Barcia
Barr
Barrett (NE)
Bartlett
Barton
Bateman
Berry
Bilbray
Bilirakis
Bishop
Bliley
Blumenauer
Blunt
Boehner
Bonilla
Bono
Boswell
Boyd
Brady
Bryant
Bunning
Burr
Burton
Buyer
Callahan
Calvert
Camp
Campbell
Canady
Cannon
Chabot
Chenoweth
Christensen
Clement
Clyburn
Coble
Coburn
Collins
Combest
Condit
Conyers
Cook
Cooksey
Cox
Cramer
Crane
Crapo
Cunningham
Danner
Davis (VA)
Deal
DeLay
Deutsch
Diaz-Balart
Dickey
Dingell
Doggett
Dooley
Doolittle
Dreier
Duncan
Dunn
Edwards
Ehrlich
Emerson
English
Ensign
Evans
Everett
Fazio
Flake
Foley
Ford
Fowler
Franks (NJ)
Frost
Gallegly
Gejdenson
Gekas
Gibbons
Gillmor
Gingrich
Goode
Goodlatte
Goodling
Gordon
Graham
Granger
Green
Gutknecht
Hall (TX)
Hansen
Harman
Hastert
Hastings (WA)
Hayworth
Hefley
Herger
Hill
Hilleary
Hilliard
Hinojosa
Hobson
Hoekstra
Holden
Hooley
Hostettler
Houghton
Hoyer
Hulshof
Hunter
Hutchinson
Hyde
Inglis
Istook
Jefferson
Jenkins
John
Johnson, Sam
Jones
Kasich
Kennelly
Kim
King (NY)
Kingston
Knollenberg
Kolbe
LaHood
Largent
Latham
Lewis (CA)
Lewis (KY)
Linder
Livingston
LoBiondo
Lucas
Manzullo
McCollum
McCrery
McDade
McHugh
McInnis
McIntyre
McKeon
Metcalf
Mica
Moran (KS)
Myrick
Nethercutt
Neumann
Ney
Northup
Norwood
Nussle
Oberstar
Ortiz
Oxley
Packard
Pallone
Pappas
Pascrell
Paul
Paxon
Pease
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pickett
Pitts
Pombo
Pryce (OH)
Quinn
Radanovich
Rahall
Redmond
Regula
Riggs
Riley
Rogan
Rogers
Rohrabacher
Ros-Lehtinen
Rothman
Royce
Ryun
Salmon
Sandlin
Schaefer, Dan
Schaffer, Bob
Sessions
Shadegg
Shimkus
Shuster
Sisisky
Skeen
Skelton
Smith (MI)
Smith (OR)
Smith (TX)
Smith, Linda
Snowbarger
Solomon
Souder
Spence
Stearns
Stenholm
Stump
Talent
Tanner
Tauscher
Tauzin
Taylor (MS)
Taylor (NC)
Thomas
Thompson
Thornberry
Thune
Tiahrt
Traficant
Turner
Upton
Wamp
Watkins
Watts (OK)
Weldon (FL)
Weller
Wexler
White
Whitfield
Wicker
Wolf
Young (AK)
Young (FL)

NOT VOTING--14

Brown (CA)
Chambliss
Cubin
Gonzalez
Jackson-Lee (TX)
Lantos
Martinez
McIntosh
Parker
Schiff
Shays
Stark
Strickland
Weldon (PA)

{time} 1358

Messrs. HINOJOSA, HOEKSTRA, GUTKNECHT, CLYBURN and PEASE changed
their vote from ``aye'' to ``no.''
Mrs. McCARTHY of New York, Mr. MOAKLEY and Mr. GANSKE changed their
vote from ``no'' to ``aye.''
So the amendment in the nature of a substitute was rejected.
The result of the vote was announced as above recorded.

[[Page H8962]]

personal explanation

Mr. WELDON of Pennsylvania. Mr. Chairman, on rollcall No. 518, I was
unavoidably detained. Had I been present, I would have voted ``yes.''

personal explanation

Ms. JACKSON-LEE of Texas. Mr. Speaker, on rollcall 518, the Boehlert
amendment to H.R. 1534, I had a malfunctioning beeper and was in
meetings where there was no detection that the vote was going on and so
I missed that vote. Had I been present, I would have voted ``yes.''

{time} 1400

Preferential Motion Offered by Mr. Frank of Massachusetts

Mr. FRANK of Massachusetts. Mr. Chairman, I offer a preferential
motion.
The CHAIRMAN pro tempore [Mr. Rogan]. The Clerk will report the
motion.
The Clerk read as follows:

Mr. Frank of Massachusetts moves that the Committee do now
rise and report the bill back to the House with the
recommendation that the enacting clause be stricken.

Mr. FRANK of Massachusetts. Mr. Chairman, I read today that Roger
Ebert, I guess it was today, has an article in which he says there
should be a new category of Nobel Prize for Movies.
Well, I am going to add one. We should immediately ask that they
institute a Nobel Prize for Inconsistency, because you would win it.
There would be a problem: Under the rules, you could not accept the
money, but maybe we can put it to the deficit. Because I do not think
in recorded parliamentary history there has ever been a greater gap
between people's professed principles and what they have voted for than
there is in this bill.
The last speaker for the bill, against the amendment offered by the
gentleman from New York [Mr. Boehlert], said it is about States. He was
absolutely right. The premise of most of this bill is that States
cannot be trusted to deal fairly with property rights; not State local
officials, not State zoning boards, and, God forbid, State courts.
Because what you are about to vote for is a bill that says let us tell
every unelected life-tenured Federal judge in the country that they
have not been sufficiently activist.
This bill says to all those guys sitting on the bench, what are you
doing, sitting back and letting controversies be decided by State
officials? How dare you leave things to the electorial process? What
are we paying you for? How come you have life tenure? Intervene. Do not
let these State zoning boards work out their will. Do not let State
courts decide these issues.
In fact, it even says to them there is a State issue? You Federal
judges, decide it. What do we pay you for? You have got life tenure.
Never in history have people denounced activism so much and promoted
it even more.
The bill says this. And do we respect property rights? Yes. But what
you are saying by this bill is we cannot trust State government. It is
not a question about property rights, it is a question about whether
State governments can be trusted, and it says we are not getting enough
nonelected, life-tenured Federal judges intervening in the local
process.
Somebody has a zoning fight in his or her State, and we say, all
right, we will give the zoning board one shot. They get one appeal.
Stay away from the State courts, go right into Federal Court. We do not
want the Governor, the mayor, mucking around in here. What do all these
elected officials know?
It also says, by the way, we do not decide enough judicially in
America. It says that courts are sitting back and waiting for the
political process. Let us intervene earlier.
There is a Federal doctrine known as ``ripeness'' which says the
courts should not rush in; the courts should defer. Do you know what
this bill says? Enough of that stuff. Earn your money. Do not wait for
these disputes to be worked out, do not wait until the local officials
debate it more and get factual information. Decide it. What do you have
life tenure for? Ignore those local people. Do not pay attention to the
State judges.
Let us be very clear: This bill says we need the Federal judges to be
a lot more active than they have been. They should stop waiting for
these things to be ripe. They should stop deferring to State courts to
decide issues. They should stop letting local officials work these
things out. We will solve it.
You passed a bill that restricted the right of habeas corpus in
Federal court so we will not have habeas corpus. What we will have now
is ``habeas propertius.'' What you will do, if your life is at stake,
why not take three more State appeals? But you did not like the zoning,
where is the Federal judge? You can get right into it.
Mr. CONYERS. Mr. Chairman, will the gentleman yield?
Mr. FRANK of Massachusetts. I yield to the gentleman from Michigan.
Mr. CONYERS. Mr. Chairman, is the gentleman aware of any city or
State organizations that support the Gallegly bill, himself a former
mayor?
Mr. FRANK of Massachusetts. Mr. Chairman, reclaiming my time, I do
not know. I would have to say to my friend apparently there are some
cities somewhere where people, having voted for the mayor, city council
and to establish a zoning board, found they cannot trust them, and want
the Federal courts.
There may be some municipality somewhere that wants unelected Federal
judges to ride to the rescue from the zoning boards. Maybe we should be
playing the William Tell Overture, because here come the Federal judges
riding to the rescue, protecting you from these local officials.
Mr. Chairman, let me say in closing, I can understand people saying
the Federal courts ought to do more, and if you think that you cannot
trust the local people, okay. But, please, can I ask my colleagues on
the other side, could you wait a week before you get up and denounce
judicial activism? Can you wait a week before you pretend to be for
States' rights? I do not think we can ban inconsistency, but let us
have a waiting period.
Mr. GALLEGLY. Mr. Chairman will the gentleman yield?
Mr. FRANK of Massachusetts. I yield to the gentleman from California.
Mr. GALLEGLY. Mr. Chairman, I thank my good friend from Massachusetts
for yielding.
I would like to respond to the gentleman from Michigan [Mr. Conyers],
my good friend and neighbor, every mayor I have talked to in my
district has signed a letter supporting it, cities over 100,000 people.
I have not had one say no.
Mr. FRANK of Massachusetts. Mr. Chairman, reclaiming my time, I think
there have been cases where mayors do not like what the Governors do. I
do not doubt that. But if there is any respect left in this body for
consistency, this bill will be voted down.
Mr. COBLE. Mr. Chairman, I rise in opposition to the motion.
Mr. Chairman, we believe in Federal protection in Federal courts for
Federal fundamental rights. States protect State and Federal rights,
but our Founding Fathers put this right in the Federal Constitution for
attention by the Federal Government with a Federal remedy. So I do not
see any inconsistency there.
Previously, Mr. Chairman, I said the Boehlert amendment would gut the
Gallegly bill. I now say to my friend, the gentleman from Massachusetts
[Mr. Frank], that his motion to strike the enacting clause will
emasculate the bill. It does great damage to the bill.
Mr. HYDE. Mr. Chairman, will the gentleman yield?
Mr. COBLE. I yield to the gentleman from Illinois.
(Mr. HYDE asked and was given permission to revise and extend his
remarks.)
Mr. HYDE. Mr. Chairman, under the bill with the manager's amendment,
you do not get immediate access to the Federal court. You have to apply
to the local land use agency. You get a ruling, you reapply, taking the
conditions of the denial into account. Then you must appeal the
application, or as much as necessary, to reach a body of elected local
officials, if available.
If all of the above are denied, you have concurrent jurisdiction. You
may go the State route or you may go the Federal route.
Now, I hasten to point out what we are vindicating here is a
constitutional right, and the Federal courts exist to vindicate
constitutional rights. The fifth amendment discusses the taking and the
rights of property owners; the seventh commandment talks about thou
shalt not steal.

[[Page H8963]]

The real problem is delay. Data indicates nine years it takes to wend
your way through the maze of local jurisdiction. The Federal judges are
local people. These cases are not too tough for them to decide.
Concurrent jurisdiction is given, and there are many civil rights cases
that get expedited treatment under the statute.
Why is not the right to have your property treated properly and
legally a civil right? It is a human right. I simply say the Federal
courts are not some exotic bizarre branch of justice only taking a few
cases. Those judges can handle these cases. They are not tough. They
handle a lot tougher cases.
But give the property owner some relief before 9 years have elapsed.
Justice is what the court systems are all about, and concurrent
jurisdiction gives the property owner an opportunity to get his Federal
right, his constitutional right, vindicated in a Federal court.
I do not think there is anything improper with that.
Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield?
Mr. COBLE. I yield to the gentleman from Massachusetts.
Mr. FRANK of Massachusetts. Mr. Chairman, I seriously appreciate
having the chairman of the Committee on the Judiciary give this
testimony to the important role of Federal district judges. We have
heard too little of that. While I disagree with him on the specific
bill, I am glad to have him reaffirm the importance of the local
resident Federal district judges having a major role in defending
constitutional rights.
Mr. HYDE. Mr. Chairman, if the gentleman will yield further, then the
gentleman agrees with me and ought to withdraw his motion.
Mr. FRANK of Massachusetts. Mr. Chairman, I will withdraw my motion.
Mr. HYDE. God bless you.
Mr. FRANK of Massachusetts. I will ask unanimous consent to withdraw
my motion, but the gentleman will lose his debate time. Does the
gentleman want me to do it now, or wait?
Mr. HYDE. Mr. Chairman, you know, it is very unfair debating Barney
Frank, because he can get 20 minutes into 3 minutes. Never forget, this
is a Federal constitutional right we are seeking to vindicate, and if
the Federal courts do not want to hear these cases, this is a shame.

{time} 1415

That is denying justice. Justice delayed 9 years is not justice, and
we ought to seek a remedy. This bill provides a remedy, and I urge its
support.
Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield?
Mr. COBLE. I yield to the gentleman from Massachusetts.
Mr. FRANK of Massachusetts. Mr. Chairman, I ask unanimous consent to
withdraw the motion.
The CHAIRMAN pro tempore. Is there objection to the request of the
gentleman from Massachusetts?
There was no objection.
The CHAIRMAN pro tempore. The question is on the committee amendment
in the nature of a substitute, as modified, as amended.
The committee amendment in the nature of a substitute, as modified,
as amended, was agreed to.
The CHAIRMAN pro tempore. Under the rule, the Committee rises.
Accordingly, the Committee rose; and the Speaker pro tempore [Mr.
Hansen] having assumed the chair, Mr. Rogan, Chairman pro tempore of
the Committee of the Whole House on the State of the Union, reported
that that Committee, having had under consideration the bill (H.R.
1534) to simplify and expedite access to the Federal courts for injured
parties whose rights and privileges, secured by the U.S. Constitution,
have been deprived by final actions of Federal agencies, or other
government officials or entities acting under color of State law; to
prevent Federal courts from abstaining from exercising Federal
jurisdiction in actions where no State law claim is alleged; to permit
certification of unsettled State law questions that are essential to
resolving Federal claims arising under the Constitution; and to clarify
when Government action is sufficiently final to ripen certain Federal
claims arising under the Constitution, pursuant to House Resolution
271, he reported the bill back to the House with an amendment adopted
by the Committee of the Whole.
The SPEAKER pro tempore. Under the rule, the previous question is
ordered.
Is a separate vote demanded on the amendment to the committee
amendment in the nature of a substitute adopted by the Committee of the
Whole? If not, the question is on the committee amendment in the nature
of a substitute.
The committee amendment in the nature of a substitute was agreed to.
The SPEAKER pro tempore. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.

Motion to Recommit Offered by Ms. Lofgren

Ms. LOFGREN. Mr. Speaker, I offer a motion to recommit.
The SPEAKER pro tempore. Is the gentlewoman opposed to the bill?
Ms. LOFGREN. I am, Mr. Speaker.
The SPEAKER pro tempore. The Clerk will report the motion to
recommit.
The Clerk read as follows:

Ms. Lofgren moves to recommit the bill to the Committee on
the Judiciary.

The SPEAKER pro tempore. Without objection, the previous question is
ordered on the motion to recommit.
There was no objection.
The SPEAKER pro tempore. The question is on the motion to recommit.
The motion to recommit was rejected.
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.

Recorded Vote

Mr. CONYERS. Mr. Speaker, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 248,
noes 178, not voting 8, as follows:

[Roll No. 519]

AYES--248

Aderholt
Archer
Armey
Bachus
Baesler
Baker
Baldacci
Ballenger
Barcia
Barr
Barrett (NE)
Bartlett
Barton
Bateman
Berry
Bilirakis
Bishop
Bliley
Blumenauer
Blunt
Boehner
Bonilla
Bono
Boswell
Boyd
Brady
Bryant
Bunning
Burr
Burton
Buyer
Callahan
Calvert
Camp
Campbell
Canady
Cannon
Chabot
Chenoweth
Christensen
Clement
Coble
Coburn
Collins
Combest
Condit
Cook
Cooksey
Cox
Cramer
Crane
Crapo
Cunningham
Danner
Davis (VA)
Deal
DeLay
Deutsch
Diaz-Balart
Dickey
Dooley
Doolittle
Doyle
Dreier
Duncan
Dunn
Edwards
Ehrlich
Emerson
English
Ensign
Etheridge
Everett
Fazio
Foley
Ford
Fowler
Fox
Franks (NJ)
Frost
Gallegly
Gekas
Gibbons
Gillmor
Gingrich
Goode
Goodlatte
Goodling
Gordon
Graham
Granger
Green
Gutknecht
Hall (OH)
Hall (TX)
Hamilton
Hansen
Harman
Hastert
Hastings (WA)
Hayworth
Hefley
Herger
Hill
Hilleary
Hilliard
Hinojosa
Hobson
Hoekstra
Holden
Hostettler
Houghton
Hoyer
Hulshof
Hunter
Hutchinson
Hyde
Inglis
Istook
Jefferson
Jenkins
John
Johnson, Sam
Jones
Kasich
Kim
King (NY)
Kingston
Knollenberg
Kolbe
LaHood
Largent
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
Livingston
LoBiondo
Lucas
Manzullo
Martinez
Mascara
McCollum
McCrery
McDade
McHugh
McInnis
McIntyre
McKeon
Metcalf
Mica
Miller (FL)
Moran (KS)
Murtha
Myrick
Nethercutt
Neumann
Ney
Northup
Norwood
Nussle
Ortiz
Oxley
Packard
Pappas
Parker
Pascrell
Paul
Paxon
Pease
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pickett
Pitts
Pombo
Pryce (OH)
Quinn
Radanovich
Redmond
Regula
Riggs
Riley
Roemer
Rogan
Rogers
Rohrabacher
Ros-Lehtinen
Rothman
Royce
Ryun
Salmon
Sanchez
Sandlin
Scarborough
Schaefer, Dan
Schaffer, Bob
Scott
Sensenbrenner
Sessions
Shadegg
Shaw
Shimkus
Shuster
Sisisky
Skeen
Skelton
Smith (MI)
Smith (OR)
Smith (TX)
Smith, Linda
Snowbarger
Solomon
Souder
Spence
Stearns
Stenholm
Stump
Sununu
Talent
Tanner
Tauzin
Taylor (MS)
Taylor (NC)
Thomas
Thompson
Thornberry
Thune
Tiahrt
Traficant
Turner
Upton
Wamp
Watkins
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
Weygand
White
Whitfield
Wicker
Wolf
Young (AK)
Young (FL)

[[Page H8964]]

NOES--178

Abercrombie
Ackerman
Allen
Andrews
Barrett (WI)
Bass
Becerra
Bentsen
Bereuter
Berman
Bilbray
Blagojevich
Boehlert
Bonior
Borski
Boucher
Brown (CA)
Brown (FL)
Brown (OH)
Capps
Cardin
Carson
Castle
Clay
Clayton
Clyburn
Conyers
Costello
Coyne
Cummings
Davis (FL)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Dellums
Dicks
Dingell
Dixon
Doggett
Ehlers
Engel
Eshoo
Evans
Ewing
Farr
Fattah
Fawell
Filner
Flake
Foglietta
Forbes
Frank (MA)
Frelinghuysen
Furse
Ganske
Gejdenson
Gephardt
Gilchrest
Gilman
Goss
Greenwood
Gutierrez
Hastings (FL)
Hefner
Hinchey
Hooley
Horn
Jackson (IL)
Johnson (CT)
Johnson (WI)
Johnson, E. B.
Kanjorski
Kaptur
Kelly
Kennedy (MA)
Kennedy (RI)
Kennelly
Kildee
Kilpatrick
Kind (WI)
Kleczka
Klink
Klug
Kucinich
LaFalce
Lampson
Lazio
Levin
Lewis (GA)
Lipinski
Lofgren
Lowey
Luther
Maloney (CT)
Maloney (NY)
Manton
Markey
Matsui
McCarthy (MO)
McCarthy (NY)
McDermott
McGovern
McHale
McKinney
McNulty
Meehan
Meek
Menendez
Millender-McDonald
Miller (CA)
Minge
Mink
Moakley
Mollohan
Moran (VA)
Morella
Nadler
Neal
Oberstar
Obey
Olver
Owens
Pallone
Pastor
Payne
Pelosi
Pomeroy
Porter
Portman
Poshard
Price (NC)
Rahall
Ramstad
Rangel
Reyes
Rivers
Rodriguez
Roukema
Roybal-Allard
Rush
Sabo
Sanders
Sanford
Sawyer
Saxton
Schumer
Serrano
Shays
Sherman
Skaggs
Slaughter
Smith (NJ)
Smith, Adam
Snyder
Spratt
Stabenow
Stark
Stokes
Stupak
Tauscher
Thurman
Tierney
Torres
Towns
Velazquez
Vento
Visclosky
Walsh
Waters
Watt (NC)
Waxman
Wexler
Wise
Woolsey
Wynn
Yates

NOT VOTING--8

Chambliss
Cubin
Gonzalez
Jackson-Lee (TX)
Lantos
McIntosh
Schiff
Strickland

{time} 1437

Mr. FLAKE changed his vote from ``aye'' to ``no.''
So the bill was passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.

____________________