[Congressional Record Volume 143, Number 158 (Monday, November 10, 1997)]
[Senate]
[Pages S12481-S12482]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           PRIVATE PROPERTY RIGHTS IMPLEMENTATION ACT OF 1997

 Mr. GORTON. Mr. President, I commend my colleagues in the 
House of Representatives for their recent passage of H.R. 1534, the 
Private Property Rights Implementation Act. This long overdue 
legislation will provide a much needed boost to the thousands of 
homeowners, small landowners, farmers, and others who for years have 
had their constitutional rights compromised.
  For too long, these landowners have seen their constitutionally 
guaranteed property rights eroded by expanding Government regulations. 
I believe the taking or restriction of the use of private property 
without due process and just compensation is directly contrary to our 
Constitution.
  This predicament that too many private property owners find 
themselves

[[Page S12482]]

in today was not always the case. So strong was the belief in private 
property ownership that our Nation's Founding Fathers guaranteed it in 
the Constitution's Bill of Rights. The fifth amendment to the 
Constitution states: ``No person shall be * * * deprived of life, 
liberty, or property, without due process of law; nor shall private 
property be taken for public use without just compensation.''
  For centuries, this constitutional directive was so respected that 
the needs of public concerns were adequately addressed without 
sacrificing private property rights. However, in the 1960's, 1970's, 
and 1980's our Nation's local, State, and Federal governments began to 
pass increasingly burdensome regulations governing air, water, land, 
and other natural resources, most of which had strong policy 
justification. The net, cumulative result, however, was a serious 
diminution of private property rights.
  Unfortunately, fighting the Government over a taking in court is not 
only extremely expensive, it is time consuming and usually futile 
against the deep pockets of the Government, which has nothing to lose 
by drawing the battle out for years and years and wearing down 
opponents.
  More than 80 percent of the time when property owners try to access 
Federal courts, they are thrown out on procedural grounds, before the 
merits are even considered. Of the 20 percent who are successful in 
having their cases heard in Federal court, it takes an average of 
nearly 10 years of litigation and negotiation to get through the 
process.
  Governmental bodies at the State and local level often have 
legitimate reasons for restricting the use of private property for 
local zoning, environmental protection, and other purposes. Most State 
and local governments use their power responsibly, respecting the 
rights of private property owners when making land use decisions. 
Nevertheless, when a governmental body at any level infringes on an 
individual's constitutionally guaranteed rights, that person should at 
least have his day in court.
  H.R. 1534 allows property owners whose rights have been violated the 
same access to Federal courts that other claimants have. For example, 
Federal environmental laws are readily enforced in Federal courts. 
First amendment claims against local governments also have no trouble 
getting heard in Federal court. Only private property rights are 
routinely dismissed or delayed. When landowners cannot afford to go to 
court to protect their legal and civil rights, the Government can use 
pressure to effectively take the land from the landowner.
  As chairman of the Senate Interior Appropriations Subcommittee, I 
cannot help but be reminded of one of the most contentious issues that 
faced our subcommittee this year--the Headwaters Forest land 
acquisition. For years, the Government tried to use a variety of 
forestry and other environmental laws, including the Endangered Species 
Act, to force the landowner off a portion of its land.
  The landowner filed a takings suit and now the Government has finally 
come to the bargaining table offering to pay for the property. As a 
result at the request of the Clinton administration, our Interior 
appropriations bill appropriates $250 million for the Headwaters 
acquisition. I cannot help but think that this landowner would never 
have received compensation if it had not had the substantial financial 
resources necessary to fight a long and contentious legal battle.
  H.R. 1534 takes several steps to allow smaller, less wealthy 
landowners the same access to the Federal courts. Unlike other bills 
dealing with property rights, H.R. 1534 does not affect any 
environmental law, impact the budget, or define for the courts when a 
taking has occurred. Instead, the bill simply attempts to clear the 
many procedural hurdles that currently prevent most property owners 
from having their case heard in court in a fair and expeditious manner.
  H.R. 1534 gives a property owner access to Federal court without 
having to spend years in an endless cycle of administrative appeals 
with Government agencies. The bill still requires the owner to attempt 
at least two appeals before going to court--but provides a clear end to 
the process. H.R. 1534 simply gives property owners the same access to 
Federal court that other claimants have.
  Opponents of this legislation argue that this bill undermines the 
authority of State and local governments in zoning disputes. If this 
were the case, I would not be supporting H.R. 1534. I strongly believe 
that land use decisions should be made at the local level to the 
greatest extent possible. I believe in most cases it is in the best 
interests of landowners to have their cases decided at the local level. 
Rather than giving property owners another avenue or authority to sue 
cities and localities in Federal court, the House passed bill simply 
allows the decision to be made on the facts of the case without 
spending 10 years litigating on procedural questions.
  Under H.R. 1534, local officials will still be in control of local 
zoning decisions. The Federal courts have consistently upheld local 
authority to make these decisions. The only role the Federal courts are 
given under this bill is the one they already have: to interpret the 
Constitution and determine whether individuals rights have been 
violated.
  Passage of H.R. 1534 will be a small but significant step in the 
battle to restore private property rights. The issues of compensation 
and adequate notification of landowners when takings occur also need to 
be addressed by this body. Nevertheless, passage of H.R. 1534 is a 
positive step. As a cosponsor of companion legislation S. 1204 
introduced by Senator Coverdell, I urge my colleagues in the Senate to 
pass this legislation soon and hope the President will sign this 
moderate bill when it comes to his desk.

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