[Congressional Record Volume 144, Number 92 (Monday, July 13, 1998)]
[Senate]
[Pages S8022-S8049]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




     PROPERTY RIGHTS IMPLEMENTATION ACT OF 1998--MOTION TO PROCEED

  Mr. HATCH. Mr. President, I move to proceed to the consideration of 
S. 2271, the Property Rights Implementation Act.
  The PRESIDING OFFICER. Under the previous order, the Senate will now 
proceed to debate the motion to proceed to S. 2271, which the clerk 
will report.
  The legislative clerk read as follows:

       Motion to proceed to the consideration of the bill (S. 
     2271) to simplify and expedite access to the Federal courts 
     for injured parties whose rights and privileges, secured by 
     the United States Constitution, have been deprived by final 
     actions of Federal agencies, or other government officials or 
     entities acting under color of State law, and for other 
     purposes.

  The Senate proceeded to consider the motion.


                         Privilege of the Floor

  Mr. HATCH. Mr. President, I ask unanimous consent that Brian Day, one 
of my law clerks, have floor privileges during the pendency of the 
property rights debate.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, the people of Utah, and indeed, of all of 
our States, have felt the heavy hand of the government erode their 
right to hold and enjoy private property. I have authored and 
cosponsored many bills in the past that would protect private property 
from the jaws of the regulatory state.

  Our opponents on the left and the radical, so-called environmental 
groups, however, have been successful so-far in derailing the 
consideration of more needed reform measures. But I believe we have the 
opportunity to pass a narrower yet meaningful piece of legislation. The 
substitute we are considering today, S. 2271, the ``Property Rights 
Implementation Act,'' narrows H.R. 1534, which passed the House of 
Representatives on October 23, 1997, by a 248 to 178 vote. After the 
House passed bill was referred to the Judiciary Committee, we met with 
local, environmental, and governmental groups in an effort to meet 
their concerns. The product of those meetings is the S. 2271 
substitute.
  Mr. President, I hope the Senate will allow us to proceed to 
consideration of this bill. How can we work to further improve this 
bill if your colleagues will not let us proceed to vote. This is a 
worthwhile bill that resolves many problems. I call on my colleagues to 
vote for cloture so that we may address those problems on the merits.
  The purpose of S. 2271, is, at its root, primarily one of fostering 
fundamental fairness and simple justice for the many millions of 
Americans who possess or own property. Many citizens who attempt to 
protect their property rights guaranteed by the Fifth Amendment of the 
Constitution are barred from the doors of the federal courthouse.
  In situations where other than Fifth Amendment property rights are 
sought to be enforced--such as First Amendment rights, for example--
aggrieved parties generally file in a single federal forum without 
having to exhaust state and local procedures. This is not the case for 
property owners.
  Often they must exhaust all state remedies with the result that they 
may have to wait for over a decade before their rights are allowed to 
be vindicated in federal court--if they get there at all. Moreover, the 
federal jurisdiction over property rights claims against federal 
agencies and Executive Branch Departments is in a muddle. In these 
types of cases, property owners face onerous procedural hurdles unique 
in federal litigation.
  The Property Rights Implementation Act, if we are allowed to even 
consider it, primarily addresses the problem of providing property 
owners fair access to federal courts to vindicate their federal 
constitutional rights. The bill is thus merely procedural and does not 
create new substantive rights.
  Consequently, the bill has two purposes. The first is to provide 
private property owners claiming a violation of the Fifth Amendment's 
taking clause some certainty as to when they may file the claim in 
federal court. This is accomplished by addressing the procedural 
hurdles of the ripeness and abstention doctrines which currently 
prevent them from having fair and equal access to federal court. S. 
2271 defines when a final agency decision has occurred for purposes of 
meeting the ripeness requirement and prohibits a federal judge from 
abstaining from or relinquishing jurisdiction when the case does not 
allege any violation of a state law, right, or privilege. Thus, S. 2271 
serves as a vehicle for overcoming federal judicial reluctance to 
review takings claims based on the ripeness and abstention doctrines.
  The second purpose of the bill is to clarify the jurisdiction between 
the Court of Federal Claims in Washington, D.C., and the regional 
federal district courts over federal Fifth Amendment takings claims. 
The Tucker Act grants the Court of Federal Claims exclusive 
jurisdiction over takings claims seeking compensation. Thus, property 
owners seeking equitable relief must file in the appropriate federal 
district court.
  This division between law and equity is archaic and results in 
burdensome delays as property owners who seek both types of relief are 
``shuffled'' from one court to the other to determine which court is 
the proper forum for review. S. 2271 resolves this matter by simply 
giving both courts concurrent jurisdiction over takings claims, thus 
allowing both legal and equitable relief to be granted in a single 
forum. I will address this conundrum of the ``Tucker Act shuffle'' in 
more detail in a later speech.


                         I. how the bill works

  Let me briefly explain how the procedural aspects of the bill, 
designed to assure fairness, work. One of the hurdles property owners 
face when trying to have their Federal claim heard on the merits is the 
doctrine of abstention. Federal courts routinely abstain their 
jurisdiction and refer the case to state court, even if there is no 
State or local claim alleged. This is true only for property rights 
cases.
  The bill would clarify that a Federal court shall not abstain its 
jurisdiction if only Federal claims are alleged. To protect State's 
rights, the bill allows an unsettled question of State law that arises 
in the course of the Federal claim to be certified in the highest 
appellate court of that State, under whatever certification procedures 
exist in that State. Federal courts would retain their jurisdiction, 
but the unsettled State law question would be answered in State, not 
Federal court. In

[[Page S8023]]

the few States where no certification procedures exist, property owners 
would be unable to benefit from that expedited procedure.
  The second hurdle the bill would resolve is the problem of 
``ripeness''. Current law requires a property owner to get a ``final 
decision'' from the land use agency to which he or she has applied 
before their Federal claim can be heard in Federal court. S. 2271 
simply provides an objective definition of a ``final decision'' so that 
both parties in a land use dispute will know when ``enough is enough.'' 
The bill outlines the steps a property owner must take to resolve a 
dispute at the local level before a final decision by the agency in 
question has been reached.
  The process clarified by the bill protects both States rights and the 
individual rights guaranteed by the Fifth Amendment. Before a land use 
decision is defined as ``final'': A property owner must make a 
meaningful application for a land use to the agency. If the application 
is denied, the property owner must make an appeal or seek a waiver of 
the denial. If rejected a second time, a final decision has been 
reached unless there is an elected local body with the authority to 
review land use appeals. In that case the property owner must submit 
another application and be denied a third time before a decision is 
defined as final.
  The bill provides yet another layer of local decision making. In 
rejecting the property owners land use application, the agency may 
chose to provide a written explanation for the denial and explain the 
uses, density, and intensity of development that would be permitted on 
the property in question. If such an explanation is provided, the 
decision will not be considered final until the property owner 
resubmits a new application taking into account the conditions of the 
original denial. If the property owner is again rejected, and rejected 
on appeal, the decision is considered final.
  In all instances, the property owner is exempted from making an 
appeal or seeking a waiver if no such appeal or waiver exists, or if 
doing so would be futile. The concept of ``futility'' is established in 
existing case law. The purpose of this exemption is to ensure that 
property owners are not trapped in a futile situation where time and 
money is wasted seeking such relief where the prospect is virtually 
nonexistent.
  In short, the bill is very simple and protects the rights of 
localities by requiring that property owners comply with local 
procedures before they seek relief in Federal court.


           II. the Need for Legislation--the ripeness problem

  Mr. President, let me amplify why this legislation is desperately 
needed. The first part of the bill deals with the ripeness doctrine, a 
doctrine which has been misused in a manner that prevents property 
owners from vindicating what, after all, is a Federal right in Federal 
court.
  Let me begin by reminding my colleagues that the Fifth Amendment to 
the United States Constitution protects individuals from having their 
private property ``taken'' by the Government without receiving just 
compensation. A complex body of law has developed from the Takings 
Clause of the Fifth Amendment and is used by Federal courts to 
determine whether a ``taking'' has occurred.
  In conjunction with this complex body of takings law, an equally 
complex set of procedural doctrines has also developed for use by 
Federal courts to determine whether the core substantive issues 
involved in the takings claim are ready to be heard. These procedural 
doctrines are known as the doctrines of ``ripeness'' and, I might 
add, ``abstention.''

  Under current case law, a takings claim must be ``ripe'' in order to 
be heard in Federal court. In a key decision entitled Williamson County 
Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), 
the Supreme Court attempted to clarify the principles of the ripeness 
doctrine.
  The Court stated that a takings claimant must show: (1) that there 
has been issued a ``final decision regarding the application of the 
regulations to the property at issue'' from ``the government entity 
charged with implementing the regulations,'' and (2) that the claimant 
requested ``compensation through the procedures the State has provided 
for doing so.'' [Id. at 194.] A takings plaintiff must meet both 
requirements before the case will be considered ripe for federal 
adjudication; if either has not been met, then the claimant will be 
procedurally barred from bringing such a claim in Federal court.
  Unfortunately, the lower court decisions which subsequently have 
attempted to apply the ripeness principles set forth in Williamson 
County have only served to create much confusion over when a claim 
becomes ripe. Property owners have been left with no clear 
understanding of how many proposals or applications must be submitted 
before their takings claim would be considered ripe.
  For example, in Southview Assocs. v. Bongartz, 980 F.2d 84, 92 (2d 
Cir. 1992), cert. denied, 507 U.S. 987 (1993), the U.S. Court of 
Appeals for the Second Circuit decided a takings claim was not ripe 
because the landowner ``did not attempt to modify the location of the 
units or otherwise seek to revise its application.'' The court failed 
to decide how many reapplications would be necessary to reach the 
merits.
  In Schulze v. Milne, 849 F.Supp. 708 (N.D. Cal. 1994), aff'd in part, 
rev'd in part on other grounds, 98 F.3d 1346 (9th Cir. 1996), property 
owners submitted a total of thirteen (13) revised plans over three 
years to renovate their home. Each time they submitted a plan ``in 
compliance with all applicable zoning laws,'' local officials 
nonetheless ``refused to approve the plan, and instead informed 
plaintiffs that there were additional requirements, not found in any 
zoning or other statutes, which plaintiffs had yet to meet.'' [ Id., 
849 F.Supp. at 709.] This is happening in many areas around the 
country.
  These examples poignantly illustrate the current confusion concerning 
when a claim becomes ripe. The current state of disarray that Federal 
judges and private landowners alike find themselves in can be fixed by 
the establishment of a set of objective criteria so that all parties 
will be able to easily discern when a government land use decision is 
final. This bill will bring that confusion to an end by clearly 
defining when a Federal takings claim becomes ripe for adjudication and 
how many final decisions are required before the claim may proceed in 
Federal court.
  Additionally, much confusion has existed over the second prong of 
Williamson County: namely, the requirement that a property owner must 
exhaust all compensation remedies available under State law. This prong 
acts to prevent Federal courts from reaching a final decision until the 
State court definitively rules that it will not entertain a 
compensation remedy.
  This problem is exemplified in Santa Fe Village Venture v. City of 
Albuquerque, 914 F.Supp. 478 (D.N.M. 1995). There, the local city 
council established a building moratorium to preclude any development 
on lands near a national monument site. Plaintiff had an option to 
purchase land within areas subject to the moratorium, but never 
exercised that option because of the total land use restriction. 
Rather, plaintiff filed a lawsuit in Federal District Court seeking 
just compensation from the local government for its inability to 
develop the property.
  The first suit was dismissed on ripeness grounds because the property 
owner never sought a compensation remedy in State court. In other 
words, exhausting State compensation procedures was necessary to make a 
Federal claim ripe for resolution. The property owner then filed a 
second action for inverse condemnation in State court. This case was 
also dismissed--this time for lack of standing. Plaintiff returned to 
Federal court raising only Federal claims but had its case dismissed 
again on ripeness grounds because the Federal claims were not raised in 
State court despite the State court's previous adjudications. These 
type of situations will be resolved by the bill by remedying the 
confusion of the State exhaustion requirement.
  As you can see in these Federal land use cases from 1983 to 1988, the 
red part of this, 94.4 percent, is where judges failed to reach the 
merits of the case--in other words, had ripeness problems--and the 5.6 
percent of cases were decided on the merits, where they found that they 
were ripe. As you can see, the owners of property are just not being 
treated fairly and this is a constitutional privilege provided for in 
the

[[Page S8024]]

fifth amendment of the Constitution, so this is wrong.
  Let me just note, this is a recent study prepared by the law firm of 
Linowes and Blocher of Silver Spring, MD, and incorporated into the 
Record for this bill.
  Over 80 percent of the takings cases originating in U.S. district 
courts between 1990 and 1997, as shown on this chart, were dismissed 
before the merits were ever reached due, again, to the ripeness 
doctrine.
  The 81 percent in red is where judges failed to reach the merits of 
the case because of ripeness problems, and the green is decided on the 
merits. In those cases where they were decided, they averaged 7 years 
of total litigation. So you can imagine how the rights are not being 
protected.
  Many of these dismissals were tantamount to the termination of the 
claim because the landowner lacked the adequate financial resources to 
form an appeal. For those landowners who could afford the high expenses 
of an appeal, the survey showed that more than half of the takings 
claims were still dismissed.
  The red is where judges failed to reach the merits of the case, 
again, due to ripeness problems. The green is cases, between 1990 and 
1997, decided on the merits, and they averaged 9.5 years of litigation.
  Just think about that. For those landowners who could afford the high 
expenses of an appeal, the survey showed that more than half of the 
takings claims were still dismissed. Of those appellate cases that did 
not pass the ripeness test, 60 percent were remanded for more 
litigation on the merits. These results underscored the need for this 
legislation.
  Further adding to the problem, a Federal court may also abstain from 
hearing a takings case under the judicially created doctrine of 
``abstention.'' This doctrine allows Federal judges to exercise 
discretion in deciding whether or not to accept cases that are properly 
under the Federal court's, in this case, jurisdiction. Federal courts 
are reluctant naturally to adjudicate State political and judicial 
controversies, so a Federal court will usually abstain anytime that a 
claim presents a Federal question that would not need to be resolved if 
an underlying challenged State action of an unsettled State law issue 
were determined. This is underscored by the Supreme Court case of 
Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941). 
Federal courts also abstain from hearing cases which touch on sensitive 
State regulatory issues which are best left to the state courts. 
Burford v. Sun Oil Co., 319 U.S. 315 (1943), is an example of this 
situation.

  Additionally, federal judges often use the abstention doctrines to 
refer takings cases back to state courts before reaching the merits of 
the Fifth Amendment claims. This bill remedies the current abuse of 
abstention by requiring that Federal courts adjudicate the merits of an 
aggrieved property owner's claims where those claims are solely based 
on federal law. On the contrary, if a property owner also raises claims 
involving state constitutional, statutory or common law claims pendent 
to the federal claims, then the property owner may not use this bill 
and the federal court may properly abstain in that type of situation.
  I have to emphasize that control over land use lies and will remain 
in the hands of local entities. Private property owners must submit a 
land use proposal to the local agency for approval which, for many 
applicants, is the beginning of a negotiation process regarding the 
permitted land uses. This process, however, can take years for property 
owners who are left in regulatory limbo due to the local entities' 
failure to make a final decision as to what land use is permitted. 
Consequently, property owners are not able to use or develop their land 
and are effectively denied their fifth amendment rights.
  While this result could be construed as a fifth amendment taking, I 
must point out that the applicant is, for all practical purposes, 
unable to file a claim in Federal court to enforce these constitutional 
guarantees because local land use authorities do not want to be sued in 
Federal court and can abuse the system by purposely withholding a final 
agency decision. To further frustrate the problem, the federal court 
decisions interpreting the Supreme Court's ``ripeness'' definition are 
conflicting and confusing, providing little guidance to property owners 
as to when a case is ``ripe'' for federal adjudication.
  Moreover, Federal judges are often reluctant to get involved in land 
use issues. Instead, they usually dismiss takings cases back to state 
court based on the abstention doctrines or the lack of ripeness. 
Unfortunately, the overwhelming majority of property owners do not have 
the time and money necessary to pursue their case through the state 
court and then re-file it in Federal court. The extensive use of the 
abstention doctrines by the Federal courts to avoid land use cases, 
even ones involving only a Federal claim, has created a blockade 
denying aggrieved land owners access to the Federal court system.
  This problem is exemplified by the situation presented in Suitum v. 
Tahoe Regional Planning Agency, 80 F.3d 359 (9th Cir. 1996), vacated 
and remanded, 117 S.Ct. 1659 (1997). Bernadine Suitum, a retiree, was 
barred from building on her land by a regional planning agency. For 
seven years, the Federal courts steadfastly refused to consider whether 
a taking of her property by the government had occurred until the U.S. 
Supreme Court ruled in an unanimous decision that she will have the 
right to argue her case in Federal court. This elderly woman's plight 
has resulted in years of expensive litigation just to have the 
opportunity to present the merits of her case to a Federal judge. 
Unfortunately, this situation is far from rare for many takings 
claimants.
  Another procedural tool that has been used to construct a barrier to 
property owners seeking remedies in Federal court has been the use of 
the doctrines of res judicata and collateral estoppel by Federal 
judges. Res judicata, also known as claim preclusion, acts as a bar to 
further claims brought by a party on the same claim where a final 
judgment on the merits has already been reached. Claim preclusion 
prevents parties from relitigating claims that were already raised or 
could have been raised in an earlier lawsuit. Similarly, collateral 
estoppel, also known as issue preclusion, prevents a plaintiff from 
relitigating issues that were already decided by a state court.
  Consequently, a Federal court could preclude a property owner from 
bringing an otherwise ripe claim in Federal court because a final 
determination had already been reached in a State court proceeding. 
That is, a strict adherence to the Williamson County prongs could prove 
tantamount to the nails in the coffin box of the property owner's ripe 
takings claim. Nevertheless, by removing the state exhaustion 
requirement from the ripeness landscape, this bill effectively solves 
all res judicata and collateral estoppel problems.
  Interestingly, claimants alleging violations of other fundamental 
rights do not encounter these same procedural barriers when attempting 
to bring meritorious actions in Federal court. In those situations, 
ripeness, abstention, and res judicata are often inapplicable.
  This places fifth amendment claimants in an inferior position to 
their first amendment counterparts. But, the Supreme Court has 
expressly stated that the fifth amendment is ``as much a part of the 
Bill of Rights as the first amendment or the fourth amendment.
  Look what the Court said in Dolan v. City of Tigard:

       We see no reason why the takings clause of the fifth 
     amendment, as much a part of the Bill of Rights as the first 
     amendment or fourth amendment, should be relegated to the 
     status of a poor relation . . .

  The Court, I hope, means what it says.
  In any event, I certainly concur. The rights of the fifth amendment 
should not be inferior to the rights of the first amendment or to any 
other fundamental guarantee contained in the Bill of Rights.
  This bill seeks to address these procedural blockades and offer 
property owners more certainty as to the Federal adjudicatory process 
governing takings claims. More specifically, the bill accomplishes this 
by defining when a final agency decision takes place and prohibiting 
Federal judges from invoking the abstention doctrine to avoid cases 
that involve only fifth amendment takings claims.

[[Page S8025]]

  In other words, this bill does not impugn or prevail upon any State 
rights. It only is triggered when we have fifth amendment 
constitutional rights invoked.
  Additionally, S. 2271 maintains the traditional interpretations of 
the abstention doctrine which keep the federal courts free from being 
thrust into controversies surrounding state and local issues by 
limiting its scope only to actions involving federal claims. As the 
proposed language indicates, usage of this Act by a claimant is 
optional.
  That is, the bill allows a claimant the opportunity to bring a claim 
in Federal court if she so chooses, but does not mandate such an avenue 
of jurisdiction. S. 2271 simply allows every citizen her right to bring 
a Federal takings claim into Federal court to be decided on the merits. 
It is important to note that if a claimant brings a takings claim that 
is joined to other State claims, a Federal court would be able to 
abstain: for example, a takings claim accompanied by a State 
constitutional claim, a claim of ultra vires conduct, or abuse of 
discretion would not be able to reach the merits in Federal court 
without a State court first deciding the merits of the State claims.
  Let me refute the critics and assert that S. 2271 accomplishes its 
goals in a manner that will not crowd the Federal dockets. Under the 
provisions of this bill, a claimant is required to obtain as few as 
three and as many as five decisions by local entities before that 
claimant's claim will be ripe for review by a federal court. Thus, the 
claimant must spend adequate time pleading her case before the local 
authorities and must obtain the necessary denials from them; until she 
satisfies these prerequisites, her claim will be barred from the 
Federal courts.
  Some have argued that the second prong of Williamson County mandates 
as a matter of constitutional law that property owners exhaust State 
compensation remedies before seeking federal court redress. This 
conclusion is buttressed by their claim that a taking does not occur on 
a State or local level until the State or locality has had the 
opportunity to afford compensation to the property owner.
  I disagree with both these contentions. First, Williamson County was 
decided before the remedy for a Federal taking was clarified. It is, 
indeed, outdated. When Williamson County was decided in 1985, the Court 
viewed the remedy for takings to be invalidation of the offending 
statute or rule. In other words, compensation was not considered the 
remedy for a taking under the U.S. Constitution. That changed in 1987, 
with First English Evangelical Lutheran Church of Glendale v. County of 
Los Angeles, 482 U.S. 304 (1987), where the Supreme Court finally held 
that the Federal remedy for a taking is compensation. Now that this 
Federal remedy has been clarified, there is no reason to compel a 
citizen to litigate State court remedies in State court first.
  Second, and consequently, the second prong of Williamson County is 
now merely prudential in nature. This conclusion is buttressed by the 
Supreme Court's most recent takings and ripeness decision, where the 
Court described Williamson County's requirements as ``two independent 
prudential hurdles * * *.'' Suitum v. Tahoe Regional Planning Agency, 
the 1997 case I cited before, makes that case, 117 S. Ct. 1659, 1666 
(1997). In other words, the requirement of exhaustion of State or local 
compensation procedures is a court-created barrier which Congress may 
alter. Simply put, initial State court litigation is not compelled by 
the Constitution.
  Third, the Williamson County second prong is only dicta, and, 
therefore, not binding authority. The main issue in Williamson County 
concerned the first element of ripeness, that is, whether the land use 
agency rendered a ``final decision.'' The ensuing discussion on 
compensation ripeness was neither essential nor necessary to support 
the decision. Thus, it was mere dicta.
  Fourth, the text of the Takings Clause does not require that property 
owners must exhaust State or local compensation procedures. The 
drafters and ratifiers of the fifth and fourteenth amendments to the 
Federal Constitution did not intend such a result: The text of the 
takings clause states: ``[N]or shall private property be taken for 
public use, without just compensation.'' Those are words right out of 
our beloved constitution.
  Thus, the fifth amendment clearly creates a Federal remedy for a 
taking. There is no basis to believe that the drafters and ratifiers 
intended State court litigation as a prerequisite to vindicate that 
Federal remedy. State court litigation puts the cart before the horse: 
Compensation is simply a computation of the amount owed for a taking. 
It makes no sense to sue in State court first, until liability for the 
Federal taking has been determined.
  Fifth, preclusion doctrines, as mentioned above, bar any Federal 
takings suit in Federal court if a plaintiff must sue in State court 
first. A property owner in this circumstance would never get to Federal 
court to vindicate the property owner's rights. It is doubtful that 
this was the intent of the drafters and ratifiers who promulgated and 
adopted Federal rights amendments and established the Federal forums to 
protect them. Yet being barred from the Federal courthouse is exactly 
what happened in Dodd v. Hood River, in 1998, 136 F.3d 1219 (9th Cir. 
1998). That is a ninth circuit court case.
  The minority views accompanying H.R. 1534, the bill voted out of the 
Judiciary Committee, completely misstates the Dodd case. Dodd stands 
for the reverse of what the minority views represent. The minority 
claims that, one, ``most federal appeals courts allow claimants to 
`reserve' federal constitutional claims so that the federal courts may 
address those claims once the state court litigation has ended.'' This 
is not true. This can be seen from what happened in the various Dodd 
cases.
  After being allowed to reserve their Federal takings claim in Dodd IV 
[(59 F. 3d at 862)], the Dodds were denied the right in Dodd V to raise 
it in Federal court under the ``issue preclusion'' doctrine of 
collateral estoppel. [See Dodd V, 136 F.3d at 1227 (9th Cir. 1998).]
  The same thing happened to a takings claimant in Wilkinson v. Pitkin 
County Bd. of County Comm'rs, a tenth circuit case in 1998, where the 
court concluded that ``the Williamson ripeness requirement is 
insufficient to preclude application of res judicata and collateral 
estoppel principles in this case.'' Moreover, in a candid footnote, the 
court acknowledged:

       We do note our concern that Williamson's ripeness 
     requirement may, in actuality, almost always result in 
     preclusion of federal claims, regardless of whether a 
     reservation is permitted. It is difficult to reconcile the 
     ripeness requirement of Williamson with the laws of res 
     judicata and collateral estoppel.

  Contrary to the minority's misrepresentation of the law, Dodd and 
Wilkinson confirm that, without the referenced remedial legislation, 
citizens bringing fifth amendment takings claims in Federal court are 
in a Catch-22 situation. They must first go to state court, but when 
they do, they are barred from ever litigating their claim in Federal 
court. Meanwhile, municipal defendants in such cases are free to seek 
removal of the case from State to Federal court. This removal procedure 
was upheld recently by the Supreme Court in City of Chicago v. 
International College of Surgeons.
  I must observe that other constitutional rights hinge on State or 
local issues, but do not require initial State litigation. Many 
provisions in the Bill of Rights also hinge on the resolution of issues 
concerning State or local law. There are no similar ripeness barriers 
requiring citizens to go to State court first to address the 
constitutionality of Government actions that infringe upon the speech, 
religion, or privacy rights protected in the Constitution.
  Furthermore, the Supreme Court in Loretto v. Teleprompter Manhattan 
CATV Corp., 458 U.S. 419, 437, n. 15 (1982), held that takings could 
occur regardless of whether the property has increased in value. In 
this case the Court found a taking where cable was laid pursuant to a 
New York statute, which undoubtedly increased the value of the 
building. The Supreme Court found a taking and remanded the 
compensation issue to the lower court.
  I believe that this holding is contrary to the position of the bill's 
critics that takings analysis require, as a matter of law, that 
compensation be determined before a governmental action can be 
considered an unconstitutional taking. Under Loretto, a court could 
find that there has been a taking--a significant interference with 
property rights--yet

[[Page S8026]]

award no compensation. It is still considered an unconstitutional 
taking. Consequently, the compensation requirement of the Takings 
Clause is merely a remedy that may or may not be awarded in a state or 
federal court, depending on the fairness of the situation.
  Buttressing this conclusion is the recent Supreme Court decision in 
Phillips v. Washington Legal Foundation, No. 96-1578 (June 15, 1998). 
In Phillips, the Court held that interest accruing from interest 
bearing lawyers trust accounts, that is, Interest On Lawyers Trust 
Accounts, or IOLTAs, as they call it, that that is property within the 
meaning of the fifth amendment. Although the Court left open whether 
the adequacy of compensation must be determined before a constitutional 
taking is considered to occur, [Phillips slip op. at 7, n.4], it is 
interesting to note that as a practical matter the Court first 
determined whether there was a property interest and, thereafter, 
remanded the case to determine whether there was a taking, and if so, 
the amount of just compensation to be paid for such taking.
  The Court in effect applied a three-part test: (1) whether a property 
interest exists; (2) whether the property interest has been 
significantly interfered with; and (3) if a property interest has been 
taken, the determination of just compensation. The Committee believes 
that this approach belies the argument that a federal court cannot hear 
takings claims before a state determines compensation. Indeed, this was 
the position of the dissent, who argued that the issue of compensation 
is not separate and distinct from the issue of disposition and use of 
property. [Phillips, slip op. at 4 (Souter, J., dissenting).]
  Furthermore, in Eastern Enterprises v. Apfel, No. 97-42 (U.S. June 
25, 1998), decided on the next to last day of the 1997-1998 Supreme 
Court term, the Court faced the issue of whether the Coal Industry 
Retiree Health Benefit Act--called the ``Coal Act''--which established 
a mechanism to fund health care for retirees, could be applied 
retroactively to a company that no longer mined coal and had withdrawn 
from the Coal Act funding scheme pursuant to terms of a prior 
negotiated agreement.
  Four Justices, Chief Justice Rehnquist and Justices O'Connor, Scalia, 
and Thomas, held that the application of the Coal Act violated the 
Takings Clause of the fifth amendment. [Eastern Enterprises, slip op. 
at 1-37 (Plurality opinion of O'Connor, Rehnquist, Scalia, and Thomas, 
J.J.)]. One Justice, Justice Kennedy, held in concurring opinion that 
retroactive application of the Act violated the Due Process Clause. 
[Eastern Enterprises, slip op. at 1-7 (Kennedy, J., concurring and 
dissenting in part)].
  In reaching its conclusion, the plurality grappled with the ripeness 
issue of whether a litigant, such as the petitioner in this case, is 
barred from seeking equitable relief in federal district courts. The 
Tucker Act confers exclusive jurisdiction on the Court of Federal 
Claims to hear claims for compensation under the Takings Clause of the 
fifth amendment, and it was argued, much like critics of this bill, 
that a claim for equitable or other relief under the Takings Clause is 
hypothetical until compensation is first determined by a court. The 
Supreme Court noted that the Court of Appeals, the various courts of 
appeals, were divided on the issue and that the Supreme Court's 
precedents were seemingly contradictory. [Eastern Enterprises, slip op. 
at 19 (plurality opinion of O'Connor, J.)].
  For instance, the Supreme Court in First Evangelical Lutheran Church 
of Glendale v. County of Los Angeles, 482 U.S. 304, 314 (1987), 
observed that ``the fifth amendment does not prohibit the taking of 
private property, but instead places a condition [just compensation] on 
the exercise of that power.'' Yet in Duke Power Company v. Carolina 
Environmental Study Group, Inc., 438 U.S. 59, 70 n. 15 (1978), the 
Supreme Court held that a district court may exercise jurisdiction over 
declaratory judgment actions pursuant to a Takings Clause claim, even 
when no attempt to seek compensatory relief has been made in the Court 
of Federal Claims.
  Significantly, the Eastern Enterprises plurality noted that the 
Supreme Court had granted equitable relief without discussing the 
applicability of the Tucker Act, and, thus, decided the issue sub 
silento that an unconstitutional taking could occur without a 
determination of compensation. [Eastern Enterprises, slip op. at 19-20 
(plurality opinion of O'Connor, J.), citing Babbitt v. Youpee, 519 U.S. 
234, 243-245 (1997); Concrete Pipe & Products of Cal. v. Construction 
Laborers Pension Trust for Southern Cal., 508 U.S. 602, 641-647 (1993); 
Hodel v. Irving, 481 U.S. 704, 716-718 (1987)].
  Based on the foregoing, I believe that a federal court may decide 
takings issues before compensation is ascertained. Indeed, the Court of 
Appeals for the Second Circuit in In re Chateaugay Corp., 53 F. 3d 478, 
492 (2d Cir. 1995), characterized the contrary language in First 
Evangelical Lutheran Church, mentioned above, as obiter dicta.
  Finally, I want to note that federal courts have more than adequate 
experience in the appraisal of value as the many takings and inverse 
condemnation claims heard by these courts demonstrate. Consequently, 
federal courts, as well as state courts, are appropriate forums to 
determine compensation. Indeed, this was the intent of the framers and 
ratifiers of the fifth and fourteenth Amendments.
  In conclusion, let me point out that James Madison, in his celebrated 
Essay on Property, wrote that the very purpose of government is to 
protect private property.
  Madison's own words in Essay on Property:

       Government is instituted to protect property of every sort 
     . . . this being the end of government. That alone is a just 
     government, which impartially secures to every man whatever 
     is his own.

  Let me also point out the admonition of John Adams, who, in his 
Defense of the Constitutions of Government, cautions that:

       The moment the idea is admitted into a society that 
     property is not as sacred as the laws of God, and there is 
     not force of law and public justice to protect it, anarchy 
     and tyranny commence.

  That is John Adams' Defense of the Constitutions of Government.
  Mr. President, let us heed the advice and warnings of the wise 
Founders of this Republic. It is the duty of Congress to assure that 
the constitutional rights of all Americans are protected. This is 
especially true when, as here, the courts fail to do their job of 
safeguarding constitutional rights. In such a situation, Congress must 
step to the plate.
  With passage of this bill, Congress will have hit a home run. The 
right to own and possess property will have been vindicated. Fairness 
to property owners will have been guaranteed by resolving the egregious 
delays and costs associated with the ripeness issue. Property owners 
will have been afforded fair access to the federal courts to vindicate 
their constitutional rights. Justice will no longer have been delayed 
nor denied.
  I urge my colleagues to support this worthwhile measure.
  The PRESIDING OFFICER (Ms. Collins). The Senator from Vermont is 
recognized.
  Mr. LEAHY. Madam President, good to see a fellow Mainer. I was so 
intent and engrossed by the discussion of the senior Senator from Utah, 
I did not notice who was in the chair.
  What is the parliamentary situation?
  The PRESIDING OFFICER. The Senate is debating a motion to proceed to 
Senate bill 2271. The cloture vote will occur at 5:45 p.m. Time is 
divided equally between now and then.
  Mr. LEAHY. How much time is due to the Senator from Vermont?
  The PRESIDING OFFICER. The Senator from Vermont has 100 minutes 
remaining.
  Mr. LEAHY. I thank the Chair.
  Madam President, I am amazed on this issue. I look at the schedule 
set by the distinguished Speaker of the House, and we have so very few 
legislative days remaining that now we have this as a top priority--a 
bill to strip zoning and land use decisions from small towns and cities 
and counties--instead of passing important funding bills.
  I do know the law requires us to have a budget by April 15; it also 
requires us to file our taxes bill April 15--we demand every person in 
the country do that. But it seems that the majority of the Republican 
leadership did not find

[[Page S8027]]

it in their heart to obey their own law to pass the budget by that 
time.
  I am not sure we have passed the budget. We passed one in the Senate; 
the House, months later, passed one; I don't believe it has been 
conferenced.
  Anyway, these are things we cannot seem to find time to do, that the 
law requires us to do. The law requires us to file our income tax 
returns. The law requires the House and Senate to pass a budget by 
April 15. But the other body, at least, never got around to doing that.
  We weren't able to find time to pass a tobacco bill, so there is not 
one that might be different from exactly what the tobacco companies 
want. We certainly haven't found time to pass legislation to increase 
patients' rights. We found it impossible to find time to pass 
legislation on campaign financing. But now we seem to be looking for 
the time to consider a bill that will take power away from State and 
local government. That power that we take from State and local 
government will go to the Federal courts.
  This is the same U.S. Senate, Madam President, which has found it 
difficult to perform its constitutional duty to fill the scores of 
vacancies in the same Federal courts. On the one hand, we are saying we 
will not fill the vacancies; we will leave 75 to 100 vacancies in the 
Federal court. The U.S. Senate can't find time to confirm the people 
who are pending, like Sonia Sotomayor and others. But we have time to 
say we don't care what the States think in their courts. We don't care 
what counties and municipalities think in their courts. We will take 
their power away from them and dump them in the Federal court. Now, we 
are not going to have enough judges in the Federal court to handle the 
cases, because we will give the Federal courts a whole lot of 
jurisdiction they never asked for and don't want, in an unprecedented--
unprecedented--exercise in antifederalism and unprecedented exercise of 
the Federal Government reaching into the States and stripping away 
their power and dumping into a Federal court. That is what we are 
spending our time on.
  Maybe I made a mistake in reading some of the rhetoric that went with 
the Contract on America that my good friends on the other side of the 
aisle proposed which talked about giving power back to the States, back 
to the communities. They said: We have to get the Federal Government 
off your back. And yet now we have a piece of legislation which says: 
Whoops, we are going to take all your power away from you and give it 
to the Federal courts. Well, well, well.
  This is a bill that would federalize local zoning decisions. This is 
a bill which goes against everything that the Republican Party has said 
they stood for, certainly everything that the people in my State, 
Republicans and Democrats, stand for, and that is giving power to local 
people. This goes against it. Why? Because its unabashed purpose is to 
give wealthy developers increased power to short-circuit communities' 
decisions, those decisions made through the public processes of local 
government.
  Basically, what this is, it is a bill to instill the golden rule, 
saying, if you have got the gold, you are going to make the rules. That 
is basically what it is. If you have got plenty of money, don't worry 
about pesky little things like a State court or zoning court or the 
things a community has a stake in; ignore those, because you can make 
your decision from your corporate headquarters 2,000 miles away, and 
you could care less what the people of Bar Harbor, ME, or Burlington, 
VT, might think because you have got the money and you have got the 
bill.
  S. 2271, the so-called Private Property Rights Implementation Act, 
will give developers greater access to Federal courts and less 
accountability to local governments than any other citizens have. In 
fact, this legislation elevates the rights of property owners above 
other constitutional rights, such as civil rights. It goes back almost 
to a time when we were forming this country where they said: If you 
have a lot of property, you should be the only ones with rights; you 
should have the votes; you should make the laws if you have a lot of 
property and a lot of money. And we said, no, no, no, no, we had a 
little matter of fighting the Revolution so that wouldn't happen. We 
call it democracy--not anarchy, not monarchy, but democracy.
  I have received letters from Governors, State attorneys general, and 
county commissioners opposing this assault on local decisionmaking.
  In fact, the National Association of Counties passed a resolution 
opposing this effort, stating that these types of decisions are best 
made at the local level with ample opportunity for all parties to seek 
nonjudicial solutions.
  Then the National Conference of State Legislatures recently said, 
``The only certain result would be an additional centralization of 
power in an unelected Federal judiciary at the expense of the States.''
  The National League of Cities and the U.S. Conference of Mayors are 
also concerned that this effort would lead to significant property tax 
increases. Mayor Giuliani, Republican mayor of New York, is worried 
about the unfunded mandates in the bill. He said, ``It remains to be 
seen where the resources will come from to pay for these added burdens 
. . . on local governments that would have to defend themselves in 
these proceedings.''
  The Justice Department advises us that this effort will interfere 
with local governments' ability to have a say in how close garbage 
dumps, liquor stores, adult bookstores and noisy industrial plants can 
be to schools, homes, and churches. What it says is, if your town 
doesn't want a porno shop next to your church or your school, the 
developer could say, ``We are going to put it there, and you don't even 
have a say in it anymore. We are going into Federal court.''
  The National Association of Towns and Townships, representing 11,000 
local governments and many tens of thousands of local elected 
officials--Republicans and Democrats alike--stresses that the bill 
``would involve Federal courts in those disputes well before local 
governments and landowners have had the opportunity to fully consider 
the range of development alternatives . . . . Clearly, communities want 
to keep factories away from residential areas and adult stores away 
from schools.'' I hope so. I hope the U.S. Senate would not pass a bill 
to make it easier for porno shops to go next to grade schools or 
churches.
  Mayor Giuliani calls these measures a fundamental intrusion upon his 
city's authority over local land use decisions, and he has written to 
me opposing this bill in the strongest terms. A recent Washington Post 
article described his efforts to eradicate strip clubs, X-rated video 
stores, and peep shows in the Times Square area. Make no mistake about 
it. If you vote for this bill, you are voting for a bill that would be 
a roadblock to those efforts.
  The contradictions presented by this bill are startling. Instead of 
trusting local mayors, councils, planning and zoning commissioners, and 
Governors to know what is best for its citizens, this bill short-
circuits the local process and it turns local land use disputes into 
Federal cases. I point out that the mayor of New York City is better 
equipped to handle the legal expenses this bill would impose than are 
countless small towns I could mention in Vermont or other States, 
including my own small town of Middlesex, VT. But even New York City--
with many, many times the population and wealth of my State of 
Vermont--says the burden this bill would impose would be onerous.
  Can you imagine--whether it is a town of 500, or 1,000, or 2,000--the 
little town of Strafford, VT, which I had the privilege to visit on the 
Fourth of July, has just a few hundred people. One of them was Senator 
Morrill, a former Senator--Senator Morrill of the 19th century, one of 
the longest serving Senators from Vermont--that was his homestead and 
his home--who came out of that little town having some sense of 
education and the need for education in small States and small towns, 
began the Land Grant Act. Look what we have benefited by that--every 
State in this Union. But that little town would be totally wiped out if 
somebody wanted to come in and destroy their whole character and say, 
``You can't do anything to stop us.''
  The mayors have told me the chilling effect the bill would have on 
their entire planning process by the specter of paying takings damages 
and attorney fees to developers, merely because a Federal judge sitting 
in a court somewhere distant disagrees with the wisdom of a particular 
use policy that

[[Page S8028]]

would result in a wholesale retreat for local zoning decisions.
  As Mayor Larry Curtis of Ames, IA, testified before the Judiciary 
Committee, ``You only have to look at budgets of our small towns to see 
how S. 2271 would be tipping the scales of justice in favor of wealthy 
developers.''
  The top four developers in the United States have annual revenues in 
excess of $1 billion per year. Just four developers represent over $1 
billion a year in revenues. Most of our small towns generate less than 
$10 million a year, and some way less than $10 million a year, in tax 
revenues. Ninety-percent of cities and towns in America have less than 
10,000 people. They couldn't hire a lawyer to fight a well-entrenched 
developer. Of course not.
  In my State, with a median community of around 2,500 people--my own 
community of Middlesex, VT, has 1,500 people--you can see these towns 
need their revenues to pay for police officers, teachers, safer streets 
and schools, and not spend the time in Federal court fighting huge 
developers. How can we expect small towns to protect the rights of 
their residents against a $1 billion developer who can hire all the 
lawyers they want? I would rather be paying that money for teachers, or 
nurses, or police officers, and for the protection of our 
communities. But, unfortunately, the House of Representatives has 
already made the decision that we will take power away from the States, 
we will take power away from our communities, we will give that power 
to major developers, who may be, coincidentally, major contributors to 
political action committees. They will take the power away from our 
towns and our cities.

  How that flies in the face of the rhetoric when they talk about 
giving power back to our communities. But it is now the responsibility 
of the Senate to step through with some common sense to safeguard the 
jurisdiction of the budgets of our towns from a barrage of lawsuits, 
from special interests, and allow them to focus on community needs.
  By giving land speculators and developers this huge new club to wield 
in their dealings with local officials, this bill would also remove the 
public from what should be a democratic process to decide what goes on 
in our communities' backyards. In Vermont, we have been fighting our 
own backyard battles over the last year--battles against the towers on 
the hillsides of our Green Mountains. One of our primary tools to 
protect Vermont from being turned into some kind of a giant pincushion 
with 200-foot towers indiscriminately sprouting up on every mountain 
and valley, within the protections of our own State law, Act 250 has 
become basically the anti-pincushion law. It has resolved over 15,000 
cases, and it has been done with local people and with our own sense of 
our State and our own people making the decision, not some out-of-State 
fat-cat corporation. And the resolutions of these cases have been 
instrumental in retaining the character and natural resources and the 
heritage of my native State of Vermont--the heritage that makes it 
unique.
  S. 2271 would have allowed developers to drag each and every one of 
those 15,000 cases into Federal court instead of allowing the people of 
Vermont to make the decisions. It might have been people from a huge 
corporation in Houston, or California, or somewhere else, against the 
people of Vermont. As the former State's attorney in Vermont, I cannot 
imagine having to fight this many legal battles on an annual State 
budget of less than $10 million, which is for fighting all of the 
State's legal battles.
  This legislation will allow developers to avoid local and State 
authority to drag local communities into Federal court, where they 
won't even have the resources and where they might as well give up and 
say:
       Here are our choices. We could protect the people of our 
     community, we could protect the people of our State, we could 
     protect our heritage, we could do what the people of the 
     State want us to do, but in even trying to do it, we face the 
     risk of bankrupting the town or the State. So we want to 
     protect your heritage. We want to protect the reasons you 
     live here, but we can't bankrupt you, and we are just going 
     to have to surrender.

  Why have we lost all the power in our local communities? Why have we 
lost the power of our States to stand up for the interests of our 
people, and the power of our communities to stand up for the interests 
of their people? Because the people in Washington, DC, in the House and 
Senate, were more interested in the needs and whims of a few fat-cat 
developers. They sold away our rights and our interests. They sold away 
our heritage. They sold away what makes our communities what they are.
  Now, Madam President, I have spoken many times on the floor of the 
Senate on how I feel about my own State of Vermont. I have heard the 
Presiding Officer speak of the pride in her own State of Maine, one of 
the most beautiful States in this country. Each of our States is 
different. I kind of like it that way. But when we go home as Senators, 
every one of us has to feel the tug of our State and the feel of being 
there.

  When I left my farmhouse in Middlesex, VT, this morning, I drove down 
the dirt road. Mist was coming out of the fields, a deer had just run 
across one of the fields, and the sun was shining. The sun rose on Mt. 
Ellen. I drove down along the Winooski River heading to the airport. It 
was so beautiful. A farmer was out tilling the field. I saw a hawk 
flying over one of the fields. My wife pointed to a place she likes the 
most as we drove along. It is a little spot, a tiny pond alongside the 
road, in an area that has been kept open for agriculture and 
recreation. The people in the community decided not to develop it, even 
though it would be prime development land. She said, ``Let's see if it 
is there.'' And it was. There is almost always a great blue heron 
standing in there. We can almost count on it in the morning as we head 
to the airport and drive up French Hill and come over the top and see 
the Champlain Valley and Burlington, and our really nice lake, Lake 
Champlain is out there. And I thought: How beautiful this is.
  There are parts of the State I remember from when I was a child, and 
that is part of it. My father used to tell me that most of the 
mountains were open land and fields throughout at different times of 
our history. Now most of them are forests. Some of the areas had been 
farmland and are now developed. But it was done carefully, in the way 
we wanted it to be done in Vermont. Our Act 250 was put through the 
legislature by a conservative Republican Governor, Dean Davis. But, 
like me, he was a native Vermonter who wanted to keep the best of our 
State.
  Has it worked perfectly in every case? Probably not. I am sure we 
could look back where something might have been done slightly 
differently, but for the vast majority of cases it has worked so well, 
and Vermont is a better place to live and a more beautiful State as a 
result. But we made our choices.
  Now some out-of-State, wealthy developer might say to us, ``But if 
you had only let us come in here, if you had knocked out that pond 
where that great blue heron is--who knows, maybe one in a hundred cars 
go by--we could have put a building there, and you would have had tax 
revenues from it. You may even have had some jobs.''
  You know, they are probably right. It probably might have even 
increased the per-capita income of our State. But do you know what, 
Madam President? The people of Vermont said that the beauty of that 
area is more valuable to us. And shouldn't we make that decision?
  Now, every year, we have some developer from out of State who will 
come in and look at these magnificent views--views that we have 
preserved, sometimes at great sacrifices, as Vermonters, we have 
preserved. They come in and say, ``Oh, if we can just develop here, we 
will make millions for you and we will make even more millions for us. 
Someday you are going to be gone anyway, so what difference does it 
make?'' We say, ``No; we kind of like it this way.''
  I think of the home that I have in Vermont. My parents bought it 41 
years ago this summer. They bought it as a summer place. We have turned 
it into a year-round home. There is a field on it. This field has one 
of the prettiest views in central Vermont. It looks at Camel's Hump and 
at Mt. Ellen, and it is gorgeous.
  About 3 weeks after my father bought the whole place, with a couple 
hundred acres, back in the late fifties, a man called him up and said, 
``I would like to buy that field. I understand there is about 8 or 10 
acres there out of

[[Page S8029]]

the 200 that you bought.'' Dad said, ``That's right.'' He said, ``I 
will offer you for that field what you paid for the whole farm.'' My 
father said he wasn't interested. The man kept calling back every week, 
and the amount went up and up and up. He finally offered my father 
many, many times what he paid for the whole 200 acres for that 8 to 10 
acres. And dad said, ``I won't sell.'' He said, I guess to impress my 
father--and my mother and father had a small printing business in 
Montpelier--he said, ``I will come up there in my private plane, and I 
will offer you enough money that you will sell.'' And dad said, ``I 
would hate to have you waste the time. I am not going to sell.'' He 
said, ``Well, why won't you?'' And my father made a comment that was 
actually prophetic because my wife and I do the same thing today. He 
said, ``Every so often we like walking up that field around sunset time 
and we like looking out there and seeing the Sun set.'' And he said to 
my dad, ``If that's all you want, sell it to me and you can come there 
and watch the Sun set anytime you want.'' My father said, ``No. It 
wouldn't be the same.''

  Now, we take that attitude about many things in Vermont, Madam 
President. Somebody will say, ``Well, if we put up this huge tower or 
this bowl, it would improve your ability to get Baywatch'' or whatever 
else the 12 channels on which 12 different folks will tell you if you 
send contributions to them, they have a direct line to God and will get 
you a blessing, or a blessing bigger than money. And we say, ``No, we 
kind of like it the way it is.''
  But we make that decision. And then an out-of-State 
telecommunications company can't come in and say, ``Oh, we are going to 
set you aside and we will go in there,'' because they are trying to do 
that under the Telecommunications Act now. Or somebody says, ``If we 
put this factory outlet right here, you know, if people come to see 
this great view here and they see the factory outlet, they will go down 
there.'' And we say, ``No, we kind of like the view the way it is.''
  Just as years ago Vermont became the first State to ban billboards 
along its highways. Everybody said, ``Oh, my God. Your tourism will 
disappear; your businesses will disappear. You will become an economic 
wasteland.'' You know what happened. Tourism skyrocketed up because 
people kind of liked seeing the views and not seeing the billboards. 
But we made that decision. Under this law, the billboard company could 
come in and say, ``You can't make that decision because we are just 
going to come through and we are going to take over.''
  Now, I know there are examples of citizens who want to develop their 
land and should have been allowed to develop it without pushing cases 
through the courts for years, but the U.S. Supreme Court has decided 
some recent cases in favor of landowners saying you have to make your 
decision. You can't tie it up forever. You do have to make your 
decision.
  And that is fine. That is the way case law develops, and we make our 
decisions accordingly. But it does not justify rewriting Federal law to 
encourage developers to sue local governments for local zoning 
decisions. It does not justify a bill that will allow the filing of 
thousands of suits to prevent local governments from zoning out gas 
stations or incinerators or a 20-story building next to your house.
  We need only to look at the list of actual takings claims that 
confront local governments to see what is wrong with this bill. In 
Tampa, FL, and Mobile, AL, officials were sued when they tried to 
restrict topless dancing bars. A chemical company challenged a Guilford 
County, NC, denial of a permit to operate a hazardous waste facility. 
The county said, ``We don't really want your hazardous waste 
facility.'' They took them to court. A landfill operator contested a 
county's health and safety ordinance prohibiting the construction of 
additional landfills, even though people worried about their water 
supply. An outdoor advertising company challenged a Durham, NC, 
ordinance that limited the number of billboards in order to preserve 
the character of the city. A gravel mine operation challenged a 
Hempstead, NY, ordinance prohibiting excavation within 2 feet of the 
groundwater table that supplied water for the town.

  I know how I would feel if I was a parent living in that town and my 
children were drinking that water.
  An essential part of land use policy is weighing one resident's 
concern over another to arrive at a decision in the community interest. 
We need to balance the rights of property owners with those of others 
in the same community.
  Remember that all of us live downstream, downwind, or next door to 
property where pollution or unsuitable activities can harm our health 
or our safety or our property values.
  This new challenge to local government is more dangerous than the 
legislation we defeated last Congress. Take a look at the groups 
opposing this legislation. These are the groups in opposition. Every 
major State and local government organization opposes this bill: 
National Governors' Association; National Association of Counties; 
National League of Cities; U.S. Conference of Mayors; National 
Association of Town and Townships; National Conference of State 
Legislatures; the Judicial Conference of the United States; religious 
organizations: United States Catholic Conference; National Council of 
Churches of Christ; Religious Action Center for Reform Judaism; 
Evangelicals for Social Action; the League of Women Voters; Alliance 
for Justice; Physicians for Social Responsibility; National Trust for 
Historic Preservation; National Wildlife Federation; League of 
Conservation Voters; the Sierra Club; the National Environmental Trust, 
and on and on and on and on.
  Every major conservation group opposes this bill. Civil rights 
groups, religious groups, labor groups, public interest groups, 
preservation groups, all oppose this bill.
  Let's not overlook the threat to our court system when we are looking 
at the threat to our State and local government. As I said earlier, S. 
2271 could significantly boost the workload of our already overburdened 
Federal court system. By making a Federal case out of local zoning 
decisions, we are going to rush zoning decisions into the Federal court 
before the local public process has even had a chance to work out some 
kind of alternative the community might want. Instead of allowing our 
communities to try to work it out themselves, we say, whoops, it is out 
of your hands entirely; we are going to turn it over to a Federal 
judge.
  And think of the cost of dramatically increasing the workload of 
Federal courts. It is going to cause a lot greater delay in existing 
Federal court workload, even if the Senate did do its duty and confirm 
those dozens and dozens and dozens and dozens of judges waiting 
confirmation. And, of course, that is why the Judicial Conference of 
the United States, the Conference of Chief Justices, and 38 State 
attorneys general all oppose this bill.
  The contradictions presented by this bill, contradicting what the 
majority leadership of this Senate says they want, are amazing. The 
legislation turns the goal of increasing local jurisdiction and 
decisionmaking on its head. It seems to abandon the respect for local 
decisions that so many in this body espoused during the takings debate 
during the 104th Congress.
  Statements were made just last year--is our memory so short as 
Senators that we forget that last year statements were made that 
legislation should only apply to the Federal Government and not impact 
State or local zoning laws? This legislation directly threatens local 
authority.
  Another seemingly obvious contradiction this legislation offers is to 
the ``judicial activism'' rallying cry of some in the matter of 
judicial appointments--just a matter of how selective some of those 
same people can be about judicial activism unless, of course, we think 
they might act on behalf of our supporters.
  Rebutting their own criticism of activist judges, this bill will 
encourage judges to intervene in problems that belong in legislatures 
or city councils.
  So with all of these contradictions and with the overwhelming 
opposition to this dangerous legislation, why is Congress considering 
such sweeping changes to the balance of power between local officials 
and developers?
  That is a question being asked of us across the country. The 
Manchester, NH, Union Leader, not considered the most liberal newspaper 
in America--in fact, usually considered the most conservative--posed 
that question to the

[[Page S8030]]

House when it took up the bill, when they said this bill is a 
``conservative flip-flop,'' and they said ``let's not federalize local 
zoning disputes.''

  They thought, and they said it is ``. . . a good guess that this bill 
will die quietly in the Senate, enabling House conservatives to tell 
their backers we `gave it our best shot.' ''
  Well, there they go again, because now we are wasting valuable floor 
time on a bill the President has pledged to veto. This legislative 
proposal is unwarranted. It is unwise. We have to do a lot better for 
our local towns and communities and for local homeowners.
  I have a statement of administration policy and a letter. I ask 
unanimous consent to have those printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                   Statement of Administration Policy


          S. 2271--Property Rights Implementation Act of 1998

       The Administration strongly opposes S. 2271 because it 
     would shift authority over local land use issues away from 
     local communities and State courts to Federal courts. The 
     bill would subject local communities to the threat of 
     premature, expensive Federal court litigation that would 
     favor wealthy developers over neighboring property owners and 
     the community at large. The President will veto S. 2271 or 
     any similar legislation.
       S. 2271 would harm neighboring property owners, weaken 
     local public health and environmental protections, and 
     diminish the quality of life by undermining local land use 
     planning. Through radical changes to the existing legal 
     doctrine of ripeness, the bill would give developers 
     inappropriate leverage in their dealings with local officials 
     by making it easier to sue local communities far earlier in 
     the land use planning process. S. 2271 also purports to allow 
     takings claimants to circumvent State courts altogether.
       The bill would violate constitutional limits on 
     congressional power if read, as its supporters intend, to 
     allow for a ruling that an uncompensated taking has occurred 
     even where the claimant fails to pursue available State 
     compensation remedies. The bill also would prohibit Federal 
     courts from ``abstaining'' or deferring to State courts on 
     certain delicate issues of State law. It would lead to poorly 
     informed decisions by allowing claimants to bring claims in 
     Federal courts without an adequate factual record, the very 
     claims that the courts themselves have said are unripe for 
     resolution.
       S. 2271 would empower the U.S. Court of Federal Claims to 
     invalidate Federal statutes and rules and grant other 
     injunctive relief in a broad category of cases. This grant of 
     authority to a non-Article III court raises a host of serious 
     constitutional and policy concerns.
       The bill provides that, by including a property rights 
     claim, any litigant against the United States could ensure 
     that the entire case would be reviewed on appeal by the U.S. 
     Court of Appeals for the Federal Circuit, an approach that 
     would promote inappropriate forum-shopping. This would 
     dramatically increase the legal influence of the Federal 
     Circuit at the expense of other circuits, thereby disrupting 
     settled interpretations of important areas of the law.
       S. 2271 also could override the ``preclusive review'' 
     provisions found in many Federal statutes, including major 
     environmental laws. These provisions allow for the swift and 
     orderly resolution of challenges to Federal actions. S. 2271 
     would deprive affected businesses and the public of the 
     regulatory stability needed to plan their actions.
                                  ____

         National Governors' Association, National Association of 
           Counties, National Conference of State Legislatures, 
           National League of Cities, United States Conference of 
           Mayors,
                                                    July 10, 1998.
       To All Senators: On behalf of the nation's governors, state 
     legislators, and local elected officials, we are writing to 
     express our strong opposition to S. 2271, the ``Private 
     Property Rights Implementation Act of 1998.'' We believe the 
     proposed legislation, including the proposed technical 
     amendments, would fundamentally interfere with and preempt 
     the traditional and historic rights and responsibilities of 
     state and local governments and would mandate significant 
     new, unfunded costs for all state and local taxpayers.
       State and local elected officials are as deeply committed 
     to protecting private property rights as are members of 
     Congress. A review of the most recent proposed revisions to 
     the legislation makes clear that those changes do not address 
     our fundamental problems with the bill. We continue to 
     believe that S. 2271 goes far beyond its stated objectives.
       If passed, the bill would undermine state and local 
     government authority over land use and regulatory decisions 
     by allowing developers and property owners to take their 
     grievances directly to federal court, circumventing legal 
     remedies at the state and local level. Such an ``end run'' 
     around the processes established by our state laws runs 
     counter to the foundations of federalism that this Congress 
     purports to endorse. The bill preempts the traditional system 
     for resolving local zoning, land use, and regulatory 
     disputes; it creates a disincentive for developers to 
     negotiate with localities in order to reach mutually 
     agreeable solutions; and it puts federal judges in the 
     position of micromanaging purely local affairs. We believe 
     that large-scale developers will use the expedited access to 
     federal courts under S. 2271 as a ``club'' to intimidate 
     local officials who are charged with acting in the best 
     interests of the community as a whole.
       The framers of the Constitution never intended federal 
     courts to be the first resort in resolving community disputes 
     between local governments and private parties. In our view, 
     these issues should be settled locally, as close to the 
     affected community as possible. S. 2271 violates our 
     cherished principles of federalism and state and local 
     sovereignty. We urge you to oppose floor action on S. 2271.
           Sincerely,
     Governor George V. Voinovich,
       Chairman, National Governors' Association.
     Senator Richard Finan,
       President, Ohio Senate, President, National Conference of 
     State Legislatures.
     Commissioner Randy Johnson,
       Hennepin County, Minnesota, President, National Association 
     of Counties.
     Mayor Deedee Corradini,
       Salt Lake City, Utah, President, U.S. Conference of Mayors.
     Council Member Brian O'Neill,
       City of Philadelphia, President, National League of Cities.

  Mr. LEAHY. Madam President, I have some other items, but I see the 
very distinguished Senator from Louisiana on the floor, and I do not 
see others seeking recognition. I will yield to my colleague and friend 
from Louisiana, but before I do that, how much time remains?
  The PRESIDING OFFICER. The Senator has 65 minutes remaining on his 
side.
  Mr. LEAHY. I understand the Senator from Louisiana wanted time from 
Senator Hatch. If we could wait just one more moment for him to come 
back?
  But while we are waiting for Senator Hatch to come back, let me just 
take a moment to offer what is really an example of the profits this 
bill will give to developers and the downfall it will be to homeowner 
rights.
  One thing I heard from every mayor and local official about this bill 
is the fear of battles with large corporate developers with deep 
pockets. Instead of waging these battles, most mayors concede they will 
probably settle the cases and give in to the developers. It will be a 
field day for land speculators who buy land zoned for, let's say, 
farming and then sue in Federal court to have the land rezoned for 
commercial or residential purposes, because now they suddenly change 
their mind the day after buying it and say they no longer want to be 
farmers; they just want to make millions as developers.
  One Senate staffer who works on this issue came across a timely 
example. He was visiting his boyhood hometown in Cortland County, NY, 
over the Fourth of July weekend. He told me about a pertinent 
situation.
  A farm adjacent to about 25 homes on a small lake, Little York Lake, 
was recently sold for $2,000 per acre for a total of $65,000. A 
speculator bought the land which he wants to now sell for $30,000 per 
acre to make a quick profit of around $1 million. To do that, he has to 
evade local zoning and health requirements. The speculator knows the 
land, sold as farmland, is worth about $2,000 per acre. But if you sell 
it for residential or business development, it could be worth 15 times 
more. But, of course, it would greatly reduce the property values of 
neighboring homeowners living in the community. They would be hurt by 
it, but one speculator would benefit if he is able to change the rules.
  The persons who sold the land to the speculator might have wished 
they had thought about just avoiding local land-use regulations. They 
could have made a whole lot of money if they did it themselves, but 
they didn't want to. They wanted to obey the rules.
  This bill would allow the speculator to get into Federal court. It 
would certainly be futile for him to apply for

[[Page S8031]]

construction permits for business, since the land is not zoned for that 
use. So why bother to work with the local governing body? Why bother to 
find a solution that might be acceptable to everybody? Instead, under 
the bill he could just sue them for taking the hoped-for profits or 
have his attorney make them change their zoning requirements. 
Incidentally, the land is located on the aquifer that provides the 
water for the community.
  Well, Madam President, I don't want to see this example replicated 
across the country. Fighting for the Department of Agriculture programs 
to help conserve our Nation's farmland, I don't want to say we passed 
S. 2271, which throws that out.
  Madam President, I understand that Senator Hatch has said if I want 
to yield time to the Senator from Louisiana--how much time would my 
friend like?
  Ms. LANDRIEU. I would like 15 minutes.
  Mr. LEAHY. I yield 15 minutes of the time of the distinguished 
Senator from Utah to the distinguished Senator from Louisiana.
  The PRESIDING OFFICER. The Senator from Louisiana is recognized.
  Ms. LANDRIEU. Madam President, I have not often found myself at odds 
with my distinguished colleague from Vermont whom I have come to 
respect and admire a great deal in every aspect of his work. But I do 
rise in support of this bill, in opposition to the comments made by the 
distinguished Senator from Vermont.
  I will, however, agree with him on one point, and that is we most 
certainly need to have our positions in our Federal courts filled in a 
timely manner. This is not the only issue in our country that needs 
attention. This is not the only issue where people, individuals and 
parties, are aggrieved and need their grievances remedied in a timely 
manner. So I do join him and thank him for his valiant efforts to try 
to get the nominations of many qualified individuals, nominated for our 
Federal bench, certified and voted on so that these matters can be 
handled in a more timely fashion.
  But I am pleased to rise in support of S. 2271, to join my 
distinguished colleagues from Utah and Georgia. The reason I rise to 
support this bill is because this is about fairness. It is about access 
to justice for the rich and for the poor, for people who have a lot of 
property, for people who have little property. In fact, this is a bill 
for people who don't own any property yet, but one day hope or dream or 
have planned or have saved, or perhaps inherit some property, perhaps 
the first ever owned in generations in their family, from having their 
rights of ownership trampled on. It is what I think the Democratic 
Party is about. It is why I am a Democrat. It is about the fundamental 
principles that the Democratic Party of which I am so proud stands for, 
and which I have spent, as have many on our side, a great deal of our 
lives and our political careers--fighting for the principles of these 
cornerstones of fairness and justice.
  I know my distinguished colleague pointed out corporate America. I am 
not sure exactly this is the picture he had in mind, because this is a 
picture, here, of Ann and Richard Reahard from Lee County, FL. I 
don't--perhaps he does, but I don't--see a corporate headquarters here 
in this picture or cell phones or limousines or Christian Dior suits. I 
just see two people who look like they love each other and have worked 
hard. They inherited 40 acres of land in Florida.
  I will not go through all the heartache that is listed here, but the 
point is, this is not corporate America. These are two people from 
Florida who inherited some land, and because of the lack of clearness 
in this law, in this unconstitutional law, have literally lived a 
nightmare since 1984, even with the most reasonable suggestions made to 
this county about what to do to develop their property.
  But the point is, this is not about the rich. This is, in fact, about 
the poor and the rich, and about people who have property and people 
who one day hope to. This bill is not just important because it 
promotes these worthy goals. It is important because it provides 
practical relief for the small landowners of Louisiana and across the 
country.
  Opponents of this legislation assert that the bill will only help 
large developers and will put small localities at a disadvantage. To 
view S. 2271 that way is to actually put this situation on its head. 
Large land developers do not need our help to enforce their rights. 
They are the only plaintiffs that can actually afford to go all the way 
through the State court and then to Federal court, because under the 
current situation, you need to have plenty money, plenty time and 
plenty patience.

  Even so, large developers are not likely to be the people bringing 
these cases. If you are a development corporation with a half dozen 
projects in a certain area, what sense does it make for you to 
aggravate the local authorities by challenging their decision in 
Federal court? None, because it makes no sense.
  This bill is not about corporate America, large landowners, rich 
lawyers. Its much more likely scenario is a large developer will use 
its economic power and leverage to sail through the approval process, 
as complicated as it is, free from any trouble from local authorities, 
and they often do. The people who need this bill are private 
landowners, small business persons, small landowners who don't have a 
lot of money, who don't have economic clout, who can't hire a 100-
person law firm to defend their rights in court and who don't have the 
resources that are at the disposal of some of our large developers.
  If your greatest asset is your home--and that is the greatest asset 
of the vast majority of people in our country who own nothing else; if 
they own something, they own their home and their land--they simply 
don't have the resources necessary to defend their constitutional 
rights against a local, State or Federal agency determined to delay and 
wait out your court claim.
  That is why I assert that this bill is about fairness. We change no 
substantive law under the fifth amendment. You have the same rights 
today as you will have when this bill passes. They will, however, be 
more clear. The change occurs with respect to the process by which you 
can enforce those rights. As it stands now, if I am a small property 
owner and I believe my land has been taken, I will be forced into a 
morass of administrative and legal procedures which studies show will 
take on the average of 9\1/2\ years.
  Let me repeat that: 9\1/2\ years to be resolved; not 3 months, not 6 
months, not 2 years. There are not too many people who can afford an 
attorney for several months, let alone for 9 years. If you are a 
multimillion-dollar development corporation, you can afford to wait, 
but if you are a family building a business for the first time or 
building your first family home, you will be financially ruined in that 
amount of time.
  Which brings us to the second principle upheld by this legislation: 
access to justice. A 1997 study by Linowes and Blocher showed that even 
if you had spent the necessary time and money to go to local hearings 
and State court, in 81 percent of the cases brought to Federal court, 
the judges will still decline to hear the case on procedural grounds. 
In 81 percent of the cases they are being declined, not on the merits 
or the substance of their claim, but on procedural cases because the 
laws are so unclear in the jurisprudence, and that is what we are 
hoping to remedy today. Essentially, property owners have a 
constitutional right which they have no practical way of exercising.
  Everyone, Madam President, is entitled to their day in court. I 
strongly support access to the courts for environmental concerns. I 
support municipalities who use the courts to enforce their zoning 
ordinances. But it would be hypocritical of me, I say to my colleagues, 
to turn my back on the other side of the argument and allow property 
owners to go without any remedy for their legitimate complaints.
  Small property owners and large municipal governments, county 
governments and State governments--everyone--needs to have their day in 
court, and that is what this bill does, nothing more, nothing less.
  The central principle which underlies this bill is that we do not 
have a two-tiered system of constitutional rights. Chief Justice 
Rehnquist stated that the fifth amendment should not be the forgotten 
stepchild of the Bill of Rights. However, that is precisely the 
situation we confront.

[[Page S8032]]

  Under the fifth amendment, it states that private property shall not 
be taken for a public purpose without just compensation. To repeat: The 
fifth amendment says that private property shall not be taken for 
public use without a just compensation.
  Nevertheless, we have inadvertently, I believe, constructed a system 
which precludes the vast majority of people from ever seeing the inside 
of a Federal court to defend their rights and to give meaning to these 
words. They are actually useless without proper procedures to allow 
someone to state their claim.
  The free enjoyment of property is not only enshrined in the 
Constitution, it was one of the core motivations of our American 
Revolution. The difficulty is that while we have created a national 
right, the essence of land use and decisions are local, as they should 
be. For that reason, we have worked very hard to craft a bill which 
addresses the problems of property owners while maintaining the local 
decisionmaking structures.
  This bill does not affect--although the opponents have said it from 
day one--it does not affect local zoning. It grants no new rights. It 
preserves the authority of zoning boards and city councils. 
Specifically, I point to page 16, lines 1 through 4 that establish 
clearly in this bill that no one is entitled, when this bill passes, to 
challenge the authority of a local government to set local zoning 
ordinances as enabled by their State constitution or State laws or the 
laws of their territory. I want to be very clear, because the opponents 
have argued that this upsets local zoning laws, and it does not.
  In short, this is no overarching bill which will change land use 
laws. Rather, we will provide a chance for people who have real 
grievances to get their day in court in a timely manner.
  This bill, in fact, Madam President, reminds me a great deal of the 
IRS reform bill, which this body just passed 98 to 2. When you put all 
the cards in the hands of an administrative agency, you ensure abuse. 
That is what is occurring in these land use cases today.
  If you had read the horror stories that I have, you would feel the 
same outrage that compelled this Chamber to pass the IRS reform bill 
nearly unanimously.
  From my own State, let me just share one of these stories. Dean and 
Rita Beard of Lafitte broke ground 2 years ago. They began building 
their dream home. They put all their savings into it and picked out a 
spot that had been pastureland for more than 100 years. The Beards 
hoped to turn this property over to their children and their 
grandchildren.
  What ensued, however, was their worst nightmare, as the Army Corps of 
Engineers put their dream on hold by taking 10 acres of land for 
mitigation projects due to projects elsewhere. Now the nearly completed 
home of the Beards, which they were ready to enter, sits as a monument 
to the failure of our land use process.
  The Beards' attorney advises them it may be 10 years before this 
issue is resolved. They may have a case, they may have a claim, they 
may have been harmed, but it will take them 10 years because of the 
complications of when the administrative decision is final is not 
clear.
  In the meantime, they have invested their life savings into an 
unusable home and every extra penny has gone towards lawyers. I doubt 
after 9 years they will have, considering their situation, any money 
left.
  That, Madam President, is what this bill is trying to address. It is 
not going to say how the courts should rule, it is just to say that 
this family, who built their dream home in hopes of turning it over to 
their children and grandchildren, can get their day in court more 
quickly after exhausting their local remedies.
  This bill is important to the Beards, it is important to my State, it 
is important to the implementation of our Constitution. I hope my 
colleagues will take a close look--I know this vote is going to be very 
close today--I hope that they will take a close look at what is 
actually in this bill to see past the outlandish rhetoric thrown about 
by its opponents.
  Should this bill pass, it will not be a panacea to all the problems 
and regulations faced by landowners and the difficulties faced by 
municipalities in zoning. However, it will be a negotiating tool that 
property owners do not now have. And it will take a small step in the 
right direction. It is a modest step.

  The PRESIDING OFFICER. The Senator's time has expired.
  Ms. LANDRIEU. May I please have additional time as I may require, 
another 2 minutes?
  Mr. LEAHY. Certainly, from Senator Hatch's time.
  Ms. LANDRIEU. Thank you. Another 5 minutes.
  So I urge my colleagues to support cloture so that we can get to the 
merits of this legislation and debate it, to give it a full debate, 
because it most certainly is necessary.
  In closing, let me just say a few words. My distinguished colleague 
from Vermont painted a most beautiful picture of the way Vermont looks. 
I hope to get to see it for myself someday. I sure have seen it in 
pictures, and I want to take my children there. Now, myself, I have 
spent many days on the shores of Lake Pontchartrain and flying over the 
marshes of Louisiana, seeing the beautiful sunsets, and have spent time 
on the west coast and on the east coast. And just this past weekend I 
was at a beautiful place in Maryland. I am well aware, as all of our 
colleagues are, how beautiful this land is and how grateful we should 
be to God for the land that He has given us.
  But I do not think there is anything really, Madam President, that is 
more beautiful than the Constitution of the United States, and 
particularly the Bill of Rights. And I just want to remind our 
colleagues of the beautiful words of the amendments, the 10 amendments 
that make up the Bill of Rights, of which this is one that we speak 
today--the freedom of speech, the freedom of the press, the right of 
people to peacefully assemble, the right of people to petition their 
Government for redress of grievances, the right to life, liberty, and 
property, due process of law, nor shall private property be taken for 
public use without just compensation.
  These are beautiful words. And it is our job to make sure that these 
words have meaning, that they are not just written on a piece of paper 
to be talked about or referred to in speeches, but that they actually 
work. And that is what this bill is--a modest attempt to clarify 
something that most certainly needs clarification.
  Let me quote from the Washington Post editorial that my distinguished 
colleague from Vermont also referred to, an editorial opposing this 
bill. It takes exceptions with this bill. Actually, when I read this 
article, I thought it was a great example or outlined the three points 
of why this bill should be passed. And I would like to quote:

       Current takings law is murky [the Washington Post says], 
     but its murkiness strikes a useful balance, allowing 
     government to implement zoning, environmental and other rules 
     that can restrict the use of private property while still 
     permitting compensation where that property is physically 
     invaded or grievously devalued. That balance [it says] should 
     not be altered [because it is murky].

  Madam President, I do not think our constitutional rights should be 
murky. I do not think people in America think that our constitutional 
rights should be murky--the right of free speech, the right of free 
press, the right to own your own property. And if it is taken from you, 
and totally eliminated of its value, you should be compensated. And 
everyone in America has their right for their day in court. I do not 
believe, Madam President, that our rights should be murky.
  I urge my colleagues to vote for cloture later this afternoon.
  Thank you, Madam President, and I yield the balance of my time.
  Mr. LEAHY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. I ask unanimous consent that the Sunday Washington Post 
editorial ``Takings Exception'' be printed in the Record.
  There being no objection, the editorial was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, July 12, 1998]

                           Takings Exception

       For all their professed commitment to federalism, 
     congressional Republicans frequently seem eager to pass laws 
     dumping quintessentially local matters into federal courts. 
     The latest such effort is the Property Rights Implementation 
     Act of 1998, which the Senate is now poised to consider. A 
     version of this bill was already passed by the House of 
     Representatives; it was a bad idea then, and it's no better 
     now.

[[Page S8033]]

       The principal component of the proposal would give property 
     owners quicker access to federal courts in their disputes 
     with local governments over contrasts on the use of private 
     land. The takings clause of the Fifth Amendment forbids 
     governments to take private property without providing just 
     compensation, and battles over such local matters as zoning 
     sometimes erupt into takings clause litigation. 
     Traditionally, federal courts have not deemed takings claims 
     ripe for review until avenues for negotiation with local 
     officials are exhausted and plaintiffs have first sought 
     compensation from state courts. The federal judiciary also 
     has sought to avoid interpreting questions of state law in 
     takings cases. The Senate bill would change the rules of 
     takings litigation, allowing property holders into federal 
     court earlier in the process of negotiations with local 
     officials. It also would curtail the abstention authority of 
     the federal courts. It would, in other words, make federal 
     cases out of a whole class of property fights now treated as 
     local matters.
       The other prong of the legislation would give those 
     claimants who are suing the federal government a wider choice 
     of venues in which to do battle than they now enjoy. 
     Currently, those who feel their property rights are being 
     infringed can sue in federal district court seeking to have 
     the federal agency stopped, or they can sue in the Court of 
     Federal Claims for compensation for an alleged taking. The 
     current proposal would give both courts jurisdiction over 
     both types of claim. This is an invitation for abusive venue-
     shopping by plaintiffs, and the Justice Department has warned 
     that it also poses constitutional problems.
       The department has said it will recommend that President 
     Clinton veto this bill, and he should certainly do so if it 
     passes. Current takings law is murky, but its murkiness 
     strikes a useful balance, allowing government to implement 
     zoning, environmental and other rules that can restrict the 
     use of private property while still permitting compensation 
     where that property is physically invaded or grievously 
     devalued. That balance should not be altered.

  Mr. LEAHY. I yield such time as the distinguished senior Senator from 
Rhode Island might need.
  The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
  Mr. CHAFEE. Thank you very much, Madam President.
  I want to thank the distinguished senior Senator from Vermont for 
permitting me to proceed.
  Madam President, I oppose the motion to proceed to consider S. 2271, 
the so-called Property Rights Implementation Act of 1998. I urge my 
colleagues to vote against cloture. Quite simply, S. 2271 is a bad bill 
and we should not be spending any further time on this legislation, in 
my judgment.
  The bill would put Federal courts in the position of second-guessing 
local land management decisions. It would make it significantly more 
difficult for State and local governments to implement zoning 
restrictions, preserve neighborhoods, or protect environmentally 
sensitive areas.
  Madam President, this bill is opposed by virtually every national 
organization representing State and local governments--the National 
Governors' Association, the National Association of Counties, the 
National League of Cities, the Conference of Mayors, the National 
Conference of State Legislatures, amongst others.
  The Nation's largest environmental groups are also strongly opposed 
to this legislation. I might say, Madam President, if anybody wonders 
whether this is an environmental vote, it is. And I know that many 
around here say that the environmentalists are not very fair in their 
scoring. Well, here they have given clear notice that this is an item 
that resonates deeply with them. They are strongly opposed to this 
legislation, the environmental groups.
  The administration is strongly opposed. The Attorney General and the 
Secretary of the Interior and the Administrator of the EPA and the 
Chairwoman of the Council on Environmental Quality--all of them oppose 
this.
  Madam President, I do not know whether these letters have been put in 
the Record previously, but I would just like to read, if I might--I 
wish the Senator from Utah were here, but perhaps he will be back. But 
I am going to just read, if I might, a couple of these letters.
  This is from the National Governors' Association, the National 
Association of Counties, the National Conference of State Legislatures, 
the National League of Cities, the United States Conference of Mayors. 
This is dated July 10, 1998. This isn't some old letter we dragged out; 
this is dated July 10--3 days ago.

       To all Senators: On behalf of the nation's governors, state 
     legislators, and local elected officials, we are writing to 
     express our strong opposition to S. 2271, the ``Private 
     Property Rights Implementation Act of 1998.'' We believe the 
     proposed legislation, including the proposed technical 
     amendments, would fundamentally interfere with and preempt 
     the traditional and historic rights and responsibilities of 
     state and local governments and would mandate significant new 
     unfunded costs for all state and local taxpayers.
       State and local elected officials are as deeply committed 
     to protecting private property rights as are members of 
     Congress. A review of the most recent proposed revisions to 
     the legislation--

  Your legislation, I say to Senator Hatch. I thought you might be 
interested in what the Governors and others have to say about it. They 
say your most recent revisions:

     . . . do not address our fundamental problems with the bill. 
     We continue to believe that S. 2271 goes far beyond its 
     stated objectives.
       If passed, the bill would undermine state and local 
     government authority over land use and regulatory decisions 
     by allowing developers and property owners to take their 
     grievances directly to federal court, circumventing legal 
     remedies on the state and local level. Such an ``end run'' 
     around the processes established by our state law runs 
     counter to the foundations of federalism . . . The bill 
     preempts the traditional systems for resolving local zoning, 
     land use, and regulatory disputes; it creates a disincentive 
     for developers to negotiate with localities in order to reach 
     mutually agreeable solutions; and it puts federal judges . . 
     .

  Imagine this: the Federal Government, Federal judges, the very group 
we are so warned about frequently on this floor. And what is more, they 
are labeled frequently as activist Federal judges. Suddenly we are 
putting them in charge. I am shocked by this.

  Mr. HATCH. Will the Senator yield?
  Mr. CHAFEE. Let me finish and I will give you a chance.
  I know the Senator from Utah is deeply concerned about these activist 
Federal judges. That is why I find it sort of out of character----
  Mr. HATCH. If the Senator will yield, I will clarify.
  Mr. CHAFEE. For him to want to turn these matters over from the 
locals to the activist Federal judges, to the courts. The framers of 
the Constitution never intended Federal courts to be the first resort 
in resolving community disputes between local governments and private 
parties.
  This letter is signed by--well, who do we have here?--by the mayor of 
Salt Lake City.
  Mr. HATCH. Will the Senator yield?
  Mr. CHAFEE. Deedee Corradini, president of the U.S. Conference of 
Mayors.
  Mr. HATCH. As a matter of personal privilege, since the Senator 
raises my mayor, if the Senator will yield for a question, is the 
Senator aware in S. 2271 we have solved all those problems? The 
original bill did not participate, in the eyes of some of the mayors, 
but S. 2271, is the Senator aware, affects only Federal claims being 
brought before Federal court; that State and local claims, claims based 
on State or local law, are not affected by S. 2271, which is fairly 
contrary to what the distinguished Senator has been saying here?
  The fact that the constitutional claims can arise from the actions of 
local governments does not make them any less a Federal claim, any more 
than a violation of first amendment rights are Federal claims, whether 
it is a Federal or local official doing the violating.
  Is the Senator aware of that?
  Mr. CHAFEE. I believe it is my time, is it not, Madam President?
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. CHAFEE. Let me finish, if I might.
  I have here a letter, dated July 10, as I was saying just before the 
Senator from Utah came in. This is not some musty letter I dragged out 
of the files from a couple of years ago. This was written 3 days ago.
  In it, it says:

       We believe the proposed legislation, including the proposed 
     technical amendments [i.e. those you have been referring to] 
     would fundamentally interfere with the preemptive traditional 
     and historic rights.

  And who signed it? Well, the Governor George Voinovich, chairman, 
National Governors' Association; Richard Finan, president, Ohio State 
Senate and president, National Conference of State Legislatures; Randy 
Johnson,

[[Page S8034]]

president, National Association of Counties; Councilmember Brian 
O'Neill of Philadelphia, president, National League of Cities; and 
then, of course the mayor of Salt Lake City. Here is her signature, 
Deedee Corradini.
  I am sure she is a very able, intelligent, and fine lady, and an 
excellent administrator. So she directs this to all Senators. I am sure 
the Senator has received a copy.
  Now, Madam President, let me just say this. In each of our cities and 
each of our States, we have a system for resolving zoning problems, for 
example. The way it works in my State--it might be entirely different 
in the State of the Presiding Officer or the State of the principal 
proponent of this legislation--if my property is zoned residential and 
I want to put a gas station next to my house and I think that would be 
a real winner, I could make a lot of money from that gas station--now 
it is true that 30 other houses on the plat might not like it, but I 
like it, so I go before, in our State, I go before the zoning board of 
review. I go before the zoning board. I would seek a variance. I 
presume I might well be turned down. Then I go to the zoning board of 
appeals. In other words, I take the second step.
  Now, under this legislation, if I took that first step before the 
zoning board and was turned down and then I went to the zoning board of 
appeals, I wouldn't even have to wait for a decision. All I have to do 
is go before that, take that second step--in other words, one appeal--
and then I can say, ``This is taking too long,'' and ``I want to go 
into the Federal court,'' and I can go into the Federal court. Then the 
Federal court, under this legislation, takes up the matter.
  I just don't think that is what we want. So many times on the floor 
of this Senate we inveigh, all of us have, against one size fits all. 
Yet that is exactly what we are doing here. We are saying, no, no, no, 
we don't like your system that you have in Maine, in Bangor, the way 
they are handling these appeals. We will let that person go into that 
Federal court and there is no incentive to negotiate, to come up with a 
compromise. When it is done on a city level or town level, as it is in 
my State, having the zoning board say, can't you people work this out, 
a gas station, that sounds like a little much, but talk with your 
neighbors and see what they say. Perhaps in some other area you can 
work this out, but we want to negotiate.

  That is not true when you get this thing in the Federal court. They 
then come down with a decision and they direct the zoning board--issue 
a permit for such and such. Is that really what we want?
  I find this an astonishing proposal. I certainly hope that we are not 
going to get in this situation where powers that--200 years, these 
powers have resided in the local communities. Because somebody said, 
``Oh, they take too long, we don't like those long delays, so we are 
going to make it so you can go into the Federal court.'' Well, 
apparently the people who live there don't think it is taking too long 
or they would change it. We are not helpless in our local communities, 
and wherever one is, whether it is each Greenwich, RI, or Ellsworth, 
ME, the people don't like the situation, they can change it. That is 
perfectly possible.
  What the law is saying, we don't like the way you are doing things 
down there, you are taking too long, so we will have those activist 
Federal judges that we have heard Senators on the floor inveigh against 
so often--I certainly hope that this cloture will not be invoked on 
this matter.
  I might say, this issue isn't whether private property owners should 
be protected or whether private property owners are entitled to just 
compensation if their property is taken for public use. The fifth 
amendment already provides for that. You can get into the Federal court 
under the present system. You don't need this legislation. You have to 
permit the case to ripen. That is what the courts have been saying. In 
other words, exhaust your remedies on the local level before you can go 
into the Federal courts.
  I greatly hope, as I said before, that for the sake of the locals and 
those who believe that powers should be at the local level, that a 
system that has been in place for the past 200 years is not arbitrarily 
changed as is proposed by this legislation here. I thank the Chair.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Madam President, I never cease to be shocked at some of 
the arguments made around here. A gas station in a 30-home residence 
area is going to rise to the dignity of what we are talking about 
here--give me a break. Houses of prostitution near places of worship--
give me a break. Nobody is arguing about things like that. The State 
and local areas certainly have total control over those.
  I am well aware this bill is opposed by the Department of Justice, 
many localities, some interstate governmental associations, and certain 
environmental groups. Almost knee-jerked in many respects. I believe 
their concerns that the bill would hinder local prerogatives and 
significantly increase the amount of Federal litigation are not only 
highly overstated but highly misunderstood by them. The bill is 
carefully drafted to ensure that aggrieved property owners must seek 
solutions on the local or State level before filing a Federal claim. It 
sets a limit on how many procedures localities may impose.
  I don't consider just a few months reasonable procedure. The average 
case is taking 9\1/2\ years. If you are some poor little property 
owner, or even a developer, if you want to use some of the language 
that has been thrown around here and you have a just reason to bring up 
a takings claim because the State or local or Federal Government has 
taken your property, you have to have pretty deep pockets to be able to 
litigate for 9\1/2\ years. The reason you do is some of these 
localities are acting improperly and using the law to allow these cases 
to never ripen so that they can be heard.
  I personally believe that the distinguished Senator from Rhode Island 
would change his mind if he just looked at the case and realized we are 
talking about true Federal issues here that should be in Federal court 
and should be there promptly, not after years of delay by local 
municipalities and/or other agencies, throwing up logjam after logjam 
to stop reasonable people from getting reasonable results under the 
circumstances. This bill will do that.

  Now, when we originally wrote this bill, when it came from the House, 
it had provisions in there that caused some angst among people who are 
truly thoughtful in this area. So we, being truly thoughtful, made 
changes that aren't just technical, but changes that basically, I 
thought, solved every problem being raised on the floor today. It is 
extremely difficult. Let me just say that.
  Moreover, I seriously doubt that there will be a rush of new 
litigation flooding Federal courts. This was the conclusion of none 
other than the Congressional Budget Office contained in the cost 
estimate section of the committee report accompanying H.R. 1534. 
Although CBO was unable to ascertain the increase in costs if large 
claims were allowed to proceed in Federal courts, it did note, after 
consulting legal experts, that ``only a small proportion [of State 
cases] would be tried in Federal Court as the result of this H.R. 1534. 
. . .''
  It is extremely difficult to prove a takings claim, and this bill 
does not in any way redefine what constitutes a taking. These claims 
are also very expensive to bring. Like I say, the average, over the 
last 10 years, has been 9\1/2\ years to bring even the most simple 
claim to fruition or conclusion. That is not what the Founding Fathers 
thought when they did the fifth amendment allowing and putting in the 
takings provision. These claims are expensive to bring. Paradoxically, 
localities' defense of Federal actions may be lessened by the bill, 
because localities already must litigate property rights claims on 
Federal ripeness grounds, which take years to resolve. It costs 
localities more money than they should have to pay.
  Let me restate this. By providing certainty on the ripeness issue, 
the bill may very well reduce litigation costs to localities. 
Substantive takings claims, unless they are likely to prevail on the 
merits, are simply too hard to prove and too expensive to bring in 
Federal court. And the issue of ripeness will have been removed by the 
bill from the already-crowded court dockets.

[[Page S8035]]

  Madam President, it is interesting to note that once many State 
officials, localities, and State and trade organizations really examine 
the measure, they rapidly become supporters of the bill. Those 
supporting the bill or increased vigilance in the property rights arena 
include the Governors of Tennessee, Wisconsin, Virginia, New Mexico, 
North Dakota, and South Carolina. They also include the American 
Legislative Exchange Council, which represents over 3,000 State 
legislatures, and trade groups such as America's Community Bankers, the 
National Mortgage Association of America, the National Association of 
Home Builders, the National Association of Realtors, and the National 
Federation of Independent Businesses, the organ of small business in 
this country. They are sick and tired of small businesses being taken 
advantage of by some of these people in some of these local areas and 
State areas, and even the Federal areas, in taking their property 
without just compensation. Then they have to go 9\1/2\ years to 
vindicate their claims. By the time they get there, the property is not 
worth anything anyway, or the interest has been consumed by attorney's 
fees.
  People who support this bill also include agricultural interests, 
such as the American Farm Bureau, the American Forest and Paper 
Association, the National Cattlemen's Beef Association, the National 
Grange Association, et cetera, et cetera.
  Just as important, let me point out that 133 House sponsors of the 
House-passed bill--and that is a bill different from this one, and that 
bill is subject to some of these criticisms--we have reformed that. The 
133 House sponsors of the House-passed bill were former State and local 
officeholders. They are not stupid. They feel just as deeply about 
State and local office concerns as anybody on this floor.
  I find it rather amusing that the distinguished Senator from Rhode 
Island is so solicitous of State and local areas, having argued on the 
other side on almost every other issue that has come before the Senate. 
Let's stop and think about it. I don't believe that these 133 former 
State and local officeholders would have voted for the bill if it 
conflicted with local sovereignty. The fact is that it does not 
conflict with local sovereignty. The fact is that it gives plenty of 
reasons and plenty of avenues for the local and State and other 
municipalities to solve these problems.
  We have bent over backwards trying to accommodate those expressing 
concern about the bill which passed out of the Senate Judiciary 
Committee. We met with city mayors, representatives of local 
governmental organizations, attorneys general, and religious groups, to 
name a few. Some of these have signed these recent letters. I am not 
sure they understand any of these issues, let alone how much we have 
made in changes to this bill.
  We held group meetings and asked for suggestions and changes to the 
bill, which would alleviate opposition and concerns. I thank Senators 
Abraham, Ashcroft, DeWine, Specter, Thompson, and respective staffs, 
for negotiating and drafting changes to the bill designed to meet the 
concerns of particularly certain localities. These changes alleviate 
municipalities' concerns that the bill would become a vehicle for 
frivolous and novel suits. They remove any incentive the bill may have 
for property owners to file specious suits against localities. They 
foster negotiations to resolve problems, and these changes recognize 
the right of the States and localities to abate nuisances without 
having to pay compensation.

  First of all, we created a new section dealing with the award of 
attorney's fees. In this section, we amended section 1988(b) of title 
28 of the U.S. Code, which allows a court to award litigation costs and 
attorney's fees to the prevailing party in civil rights actions. This 
change allows a district court to hold the party seeking redress liable 
for reasonable attorney's fees and costs if the takings claim is not 
substantially justified. This section was created to address the 
localities' concerns that they would have to defend expensive, 
frivolous cases in Federal Court, wasting taxpayers' money. This 
section eliminates those concerns.
  I think that the mayor of Salt Lake might have had a different 
opinion--or other mayors that the distinguished Senator from Rhode 
Island has cited, or the other Governors that the distinguished Senator 
from Rhode Island has cited. I have reason to believe that they haven't 
seen this current substitute that we have here, or they would change, 
like so many others are changing.
  The problem is that you get these old bills out--and, yes, there were 
problems with the old bills, but that is what the legislative process 
is designed to correct. That is what we are doing here.
  Mr. LEAHY. Will the Senator yield for a question?
  Mr. HATCH. I am a little bit agitated right now, and I want to finish 
some of these thoughts.
  Mr. LEAHY. Well, I don't want to add to the agitation of the 
distinguished Senator.
  Mr. HATCH. I will just say that the distinguished Senator very seldom 
does.
  Another amendment to the bill requires a party seeking redress for a 
taking of real property to give any potential defendant written notice 
60 days prior to a commencement of action in district court. This was 
added to address the localities' concerns that they will have 
insufficient time to negotiate with parties seeking redress before a 
Federal action was filed. This delay, I might add, acts as an 
inducement to seek compromise.
  In addition, we added a nuisance provision to the purpose section of 
the bill that confirms State power to prevent land uses that are 
nuisances. I suspect that a house of prostitution would be a nuisance 
alongside a church or some other place. Perhaps there are many in this 
body that might agree with me that it is a nuisance, period. Under 
existing law, States have authority to abate nuisances and zone for 
commercial or residential uses. The Supreme Court, in Lucas v. South 
Carolina Coastal Council, held that such State actions require no 
compensation to affected landowners.
  This change in the bill thus makes clear that State prerogatives are 
not altered. The bill, in any event, changes no substantive law and 
merely allows property owners fair access to the Federal courts after 
having gone through a variety of procedures in the State courts. And 
reasonable procedures at that, but not after 9\1/2\ years of being 
jerked around by some of the State courts, and Federal courts, by the 
way, because the Federal courts have been jerking them around, too, 
refusing to hear some of these cases on the doctrine of rightness, and 
the other doctrines that I have mentioned.

  All this belies the bizarre and false allegations, such as the one 
contained in the Minority Views of the H.R. 1534 Committee Report, that 
if the bill passes localities may not prohibit gas stations in 
residential areas unless compensation is paid.
  Give me a break.
  Finally, to narrow the scope of the ripeness provision, we limited 
the term ``property owner'' to include only ``owners of real 
property.'' This change greatly narrows the procedural effects of this 
bill because the provisions of the bill that expedite access to the 
federal courts now will only encompass real property and, thus, will 
not apply to suits involving personal or intellectual property.
  So we have solved that problem, which was a legitimate question, 
although really we ought to be protecting all property since this is a 
fundamental right of the fifth amendment of the Constitution of the 
United States of America, one that is ignored most of the time in our 
country.


  the states rights issue: why s. 2271 does not impact states' rights

  S. 2271 affects only federal claims being brought before federal 
court. State and local claims, claims based on state or local law, are 
not affected by S. 2271. The fact that constitutional claims can arise 
from the actions of local governments does not make them any less a 
federal claim, any more than a violation of First Amendment rights are 
federal claims whether it is a federal or local official doing the 
violating.
  The Supreme Court has long held that the Eleventh Amendment makes 
state governments acting under state law immune from suits filed under 
U.S.C. section 1983. In other words, state governments are already 
immune from suits filed on constitutional

[[Page S8036]]

grounds by established Supreme court precedent, and S. 2271 does 
nothing to change that.
  Local governments, however, are not immune from lawsuits claiming 
that constitutional rights have been violated. Again, it is the Supreme 
Court, not S. 2271, that has made local agencies subject to federal 
claims by individuals alleging their rights have been violated.
  All S. 2271 does is ensure that when a suit is filed in federal 
court, the case can be heard on the merits, rather than spending time 
and money to determine whether the case is ``ripe.''
  State and local agencies will have all the authority and power they 
currently have to make land use decisions--for zoning, environment, 
etc. S. 2271 does not change any substantive law. But, if local 
agencies violate Fifth Amendment rights when making land use decisions, 
S. 2271 helps a property owner get a more expedient hearing on the 
merits without the 10-year ripeness battle, which is one of the most 
futile experiences anyone can go through.
  The property owner, under S. 2271, will still have to make at least 
one meaningful appeal to the agency in question before bringing a 
lawsuit. That means agencies have at least two cracks at making a 
balanced decision that protects the environment and public health while 
protecting the rights of private property owners. In the real world, 
property owners will likely try repeatedly, because the chances of 
getting a favorable ruling in court on the merits is extremely slim--
and S. 2271 offers no help there.
  The reason the bill refers to a property owner being rejected on 
``one meaningful application'' and ``one appeal or waiver'' before a 
decision is considered final is to create some objective criteria so 
both the property owner and the land-use agency in question know when 
``enough is enough.'' The language actually codifies a body of federal 
cases requiring that a property owner make ``one meaningful 
application'' to the relevant land-use decision making body to ripen a 
Constitutional claim. (e.g. Eastern Minerals Int'l Inc. versus United 
States; Kawaoka versus City of Arroyo Grande; Unity Ventures versus 
Lake County.) The point is that property owners should not be forced to 
negotiate away portions of his or her constitutional rights in a series 
of re-applications and appeals as a condition of gaining access to 
federal court with a Constitutional claim. The fact that different 
cities or states may have varying procedures or multiple steps for 
making a final determination on land use is not at issue in this bill. 
The bill does not define what a ``meaningful application'' is, because 
it recognizes that different states and cities handle land use 
applications differently--the bill tries to be respectful of those 
differences and allow state and local officials determine that 
question.
  If there is a threshold question of state or local law that is 
essential to the merits of the federal claim, and it is patently 
unclear or confusing, the federal court can, under S. 2271, have that 
question certified in state court under whatever procedures the state 
has in effect for certifying questions for a federal court.
  In other words, if a federal claim involves an important issue of 
state law, the state courts will have first crack at it under S. 2271. 
The only difference is that the property owner will not get turned away 
from federal court and forced to file the whole claim again in state 
court, and go through a 10-year delay process that literally is 
subverting the very constitutional provisions that we are sworn to 
uphold.

  This bill is pretty well thought out, and, frankly, I ask unanimous 
consent that a whole raft of letters from various people who are in 
support of this bill ranging from these various groups and so forth be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                            The Associated General


                                       Contractors of America,

                                    Washington, DC, June 19, 1998.
     Hon. Orrin G. Hatch,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator Hatch: The Associated General Contractors of 
     America (AGC) supports H.R. 1534, the Private Property Rights 
     Implementation Act. This legislation will provide access to 
     justice for private property owners subject to takings by the 
     federal government.
       The legislation defines what is a final administrative 
     decision by the federal government under the ``ripeness 
     doctrine.'' For private property owners, the bill determines 
     what the last administrative appeal is, triggering an owner 
     filing for compensation when the government has taken or 
     devalued property. Recent private property cases heard by the 
     Supreme Court were merely decisions allowing private property 
     owners to pursue a ``takings'' claim under the Constitution's 
     5th Amendment protections. Property owners have been 
     prevented from going to court regarding a takings claim when 
     a lower court rules the administrative appeals process has 
     not been exhausted. In this legislation, Congress will 
     prevent further costly, unnecessary litigation by providing 
     access to courts, ensuring federal courts will hear takings 
     cases.
       AGC urges you to support this legislation. This will 
     prevent lengthy administrative cases and allows private 
     property owners immediate and appropriate redress of a 
     takings claim.
           Sincerely,

                                              Loren E. Sweatt,

                                 Director, Congressional Relations
     Procurement and Environment.
                                  ____

                            American Forest and Paper Association,
                                     Washington, DC, July 9, 1998.
     Hon. Orrin Hatch,
     U.S. Senate, Russell Building,
     Washington, DC.
       Dear Senator Hatch: The Senate will have the opportunity as 
     early as Monday, July 13, to cast a vote in support of 
     private property owners by voting in favor of S. 2271, the 
     ``Property Rights Implementation Act'' on the Senate floor. 
     On behalf of the American Forest & Paper Association, and the 
     9 million woodlot owners in this country, we urge you to vote 
     ``yes'' to invoke cloture and on final passage of this bill. 
     A vote in support of S. 2271 will be considered a key vote on 
     behalf of our membership.
       S. 2271 is a moderate, balanced, bipartisan effort to 
     ensure that private property owners have their day in court. 
     The Fifth Amendment to the Constitution states that private 
     property should not be taken by the government for public use 
     unless the owner is paid just compensation. However, recent 
     studies have shown that property owners attempting to protect 
     their property rights in federal court are rejected on 
     procedural grounds over 80% of the time without ever getting 
     a hearing on the merits of their case. Those who do get their 
     day in court are forced to spend an average of nearly 10 
     years in litigation and procedural hurdles.
       S. 2271 is strictly a procedural bill--it does not define a 
     ``taking'' or mandate compensation. The bill:
       Helps property owners obtain federal court relief more 
     quickly and more affordably to preserve their 
     Constitutionally-protected property rights.
       Does not change substantive law. Property owners still must 
     have the facts and prove their case. The bill does not create 
     any new cause of action for property owners to give federal 
     courts more power and authority than they have already.
       Does not destroy the current exercise of state authority to 
     determine land use, but does require states to use their 
     procedures in a fair and constitutional way.
       Affects only Federal claims. Federal courts will still be 
     able to send unresolved state claims back to state court for 
     certification before the federal courts go forward.
       Streamlines the federal court docket by simplifying the 
     federal procedures for constitutional takings claims.
       Thank you for your time and attention to this important 
     legislation. We strongly urge you to support S. 2271 on the 
     Senate floor.
           Sincerely,
                                            John H. Dressendorfer,
                                                   Vice President.

  Mr. HATCH. Madam President, I yield the floor and reserve the 
remainder of my time.
  Mr. LEAHY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Madam President, I listened with interest to my good 
friend, the distinguished senior Senator from Utah. He said that 
perhaps some of those who are opposed to this may not understand the 
bill. There is a reason for this. The bill we are discussing is S. 2271 
which was introduced just last week. We never had a hearing on S. 2271. 
While we had a hearing on H.R. 1534 this bill is significantly 
different from S. 2271. S. 2271 was just printed late last week and 
many Members may not have had an opportunity to carefully review it.
  This new bill just came bouncing in here. We haven't had one single 
hearing on this particular bill. My good friend from Utah talks of the 
care that went into it. This arrived full-blown, full-grown on the 
Senate floor--not one single Senate hearing on this bill. In fact, the 
bill on which we did hold a hearing, H.R. 1534, apparently bothered 
them enough that it was significantly changed. We haven't done a report 
on S. 2271. One was done on H.R. 1534 but not on S. 2271. Madam 
President, no

[[Page S8037]]

Senator can point to 30 seconds of Senate hearing on S. 2271. No 
Senator can point to a two-sentence report on this bill.
  A lot of Senators probably did not even have a chance to look at S. 
2271. Apparently, they thought H.R. 1534 should be changed. But this is 
a new bill that many of us feel is worse than its predecessor. But 
there have been no hearings on the changed text. There is no report on 
S. 2271, and under some new streamlined process the bill was just sent 
to the floor. We will vote on S. 2271, and then we will debate it 
later. It is like Alice in Wonderland. You have the sentencing first, 
and the trial later. This is not the way the U.S. Senate should act.
  I think that is why the National Governors' Association, the National 
League of Cities, the National Association of Counties, the U.S. 
Conference of Mayors, and the National Conference of State Legislatures 
all stated their opposition to this new bill. Just 3 days ago, they 
said:

       A review of the most recent proposed revisions to the 
     legislation makes clear that those changes do not address our 
     fundamental problems with the bill * * * The framers of the 
     Constitution never intended federal courts to be the first 
     resort in resolving community disputes between local 
     governments and private parties. In our view, these issues 
     should be settled locally, as close to the affected community 
     as possible.

  In fact, some would say H.R. 1534, the earlier bill, would be better 
than S. 2271. S. 2271 is more burdensome to local governments than 
earlier versions.
  First, the revised bill goes even further in limiting Federal judges' 
ability to abstain from cases dealing with local land use decisions. 
Maybe they have to abstain because we don't fill the vacancies of 
Federal courts. But assuming there is a Federal court and a Federal 
judge who has been lucky enough to be confirmed by the U.S. Senate, 
they have a limited ability to abstain. In S. 2271 a Federal judge in 
many circumstances cannot abstain from or relinquish jurisdiction to a 
State court because the plaintiff ``brings a prior or concurrent 
proceeding before a State, territory, or local tribunal.''
  This revision effectively turns the earlier version of this provision 
on its head. Rather than leaving room for abstention when a State law 
claim is asserted, the revised version specifically states that a 
district court shall not abstain when there is a State law claim.
  I don't know when we have ever done anything like this. This is an 
unprecedented big-foot action on the part of the Federal Government of 
stepping in and telling local citizens and state courts, ``You don't 
count,'' as far as the U.S. Senate is concerned.
  Rather than reducing interference with State court resolution of 
State and local law issues, the revised version of the bill actually 
would maximize Federal court interference with State courts.
  Second, the revisions make the bill worse from a local government 
standpoint by eliminating the authority conferred on local governments 
in the bill as reported by committee to define a ``meaningful 
application.''
  Instead, the revised bill would allow Federal courts to get into 
looking at local land use requirements and applications. Other changes 
in the bill are either harmful, cosmetic or without significant effect.
  As a general matter, the bill would introduce new vague terminology 
which could lead to years of litigation over the meaning of this new 
language. And, of course, we are asked to enact S. 2271 without even a 
report. Enactment of the new legislation would make land use litigation 
process more time-consuming.
  Look at the insertion of the phrase ``one meaningful application to 
use the property . . . within a reasonable time.'' This change 
ostensibly addresses the concern that H.R. 1534, as reported, suggests 
an applicant only had to initiate a local application or waiver 
proceeding, but not necessarily await the outcome of the proceeding 
before suing in Federal court.
  The change to ``within a reasonable time'' simply confirms that in 
some circumstances a developer would be able to proceed to Federal 
court without first obtaining local decisions. Many States and local 
governments already have specific time limits for administrative 
decisions. That seems to throw it out of the window.
  I have said over and over again that when property is taken, the 
landowner should be compensated. That is what our Constitution 
requires--it requires just compensation. That is what local, State and 
federal Governments are doing. Certainly, there has been no need for 
such sweeping legislation demonstrated.
  I wish we had an opportunity to work with the chairman of the Senate 
Judiciary Committee to have a better bill. It is his prerogative not to 
have a hearing on this particular bill or to have a detailed report on 
it.
  And we have instances where my friend from Utah says that this bill 
applies only to owners of property, but it defines owner as the owner 
or possessor of property or rights in property. That is more expansive 
than the normal meaning of the word owner. Somebody who steals property 
is a possessor of property. An adverse possessor of property is by 
definition in possession of the property. As I said, we have a case 
here where something is not broken, but we are about to fix it anyway.
  Madam President, I withhold the balance of my time. I ask the Chair, 
how much time remains to the Senator from Vermont?
  The PRESIDING OFFICER. The Senator has 39 minutes remaining.
  Mr. LEAHY. I withhold that time.
  Mr. HATCH. Mr. President, how much time does the Senator from Utah 
have?
  The PRESIDING OFFICER. The Senator from Utah has 22 minutes 48 
seconds.
  Mr. HATCH. Let me just say this, that we have held hearings through 
the years on similar bills, and we have held hearings on the underlying 
bill. We made four changes, which I outlined in my last remarks. So the 
hearings were held and the changes were made to accommodate some of the 
concerns of those who have been critical of this bill. So this is not 
without hearings, and it is not without an understanding.
  I yield 10 minutes to the distinguished Senator from Texas.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mr. GRAMM. Madam President, I thank you. I thank my colleague for 
yielding.
  I would like to say that I think comments made today are living proof 
of the old adage that no good deed ever goes unpunished. The plain 
truth is that we have had numerous hearings on the issue of private 
property and takings. Our colleague from Utah has been a leader in this 
effort. We are considering this bill today because he has continually 
tried to accommodate people who oppose the underlying amendment that he 
has so effectively championed.
  The issue before us today is not an issue of technicalities. It is 
not an issue of whether or not a certain number of mayors or Governors 
or locally elected officials think one thing or think another. The 
issue before us is, are we going to effectively enforce the 
Constitution of the United States?

  What an incredible paradox it is that if we had similar legislation 
before the Senate to enforce our first amendment rights to freedom of 
religion, freedom of speech, freedom of the press, freedom of the right 
to assemble, and to address the Government about our grievances, we 
would have 100 Members of the Senate here demanding that the Senator's 
bill be adopted. If the Senator from Utah was simply trying to 
guarantee our freedom of speech and religion by setting out a clear 
course where ordinary people could have a day in court in determining 
whether their first amendment rights had been respected or abused, we 
would have 100 Members of the Senate supporting this bill.
  The real issue before us is that there are many Members of the 
Senate, many Governors, many locally elected officials who do not 
support our fifth amendment rights. The fifth amendment to the 
Constitution says, ``Nor shall private property be taken for public use 
without just compensation.''
  We all know, and it is the reason that this amendment is before us, 
that every day in America private property is being taken without just 
compensation. We all know in the name of endangered species, in the 
name of wetlands, in the name of numerous other public purposes, 
private property rights are being trampled on and people are finding 
their property taken or

[[Page S8038]]

dramatically reduced in value because of some public objective. The 
opposition to this amendment is not based on technicalities. The 
opposition to this amendment is not based on some letter signed by some 
local officials or some State legislators. The opposition to this 
amendment is based on the fact that there are many in the country and 
many in the Congress who would like the fifth amendment guarantees of 
protecting private property to be gone. These guarantees stood up very 
well until the Depression era when the Supreme Court basically started 
to rule against private property. The Supreme Court and the lower 
courts have now moved back toward recognizing and respecting the fifth 
amendment. But the problem is that a lot of ordinary people have 
trouble getting their day in court. They often find themselves 
shuffling between the district court and the Court of Claims trying to 
uphold their rights.
  So what does the bill before us do? It sets out a very simple process 
whereby people who believe that their private property rights have been 
trampled on can go into Federal court and have their day in court and 
have a decision made. I believe that private property is at least as 
important as the right of freedom of religion and speech. Our Founding 
Fathers understood that if your property is not secure, your right to 
freedom of religion and your right to freedom of speech can be 
abridged. Our Founding Fathers understood that private property is not 
only a human right; it is the basic human right. It is a foundation 
right of the American Republic. And, more important, it has been a 
foundation right of every great civilization in history.

  Will Durant, in talking about Rome and the rise of Rome says, ``Never 
was there a day when private property did not exist in Rome.'' The 
foundation of ancient Athens was private property, and the respect for 
private property. It cannot be a happy day in America when private 
property rights are trampled upon. Those who oppose the fifth amendment 
say, ``If you made the Government pay people when we took their 
property for these good purposes, then we wouldn't be able to take 
their property for these good purposes.'' They say, ``Surely it is 
worth it to protect the wetlands and endangered species and thousands 
of other objectives to be able to take people's property. And if we had 
to compensate them, we couldn't promote these public purposes.''
  I would just conclude by making two points. No. 1, why should the 
property owner, and the property owner alone, be forced to bear the 
cost of promoting these public objectives? And, second, when the 
Founding Fathers wrote, ``Nor shall private property be taken for 
public use without just compensation,'' is it not clear that they were 
not just talking about taking your property to build a road across, 
they were talking about Government action that profoundly lowered the 
value of land in use or exchange?
  So, this is not a debate about technicalities. It is not a debate 
about letters signed by local officials or State officials. It is a 
debate about the Constitution and about the fifth amendment. Those who 
believe in private property, those who support private property rights, 
will vote for this amendment. And those who do not support private 
property, those who believe that public purpose is more important than 
private property and that taking property without compensation to 
promote some public good--as they would define it--will vote ``no'' on 
this amendment.
  Many will try to confuse the voter about what the issue is. The issue 
is the fifth amendment. The issue is whether or not we respect private 
property and private property rights in America. I respect private 
property and private property rights in America. That is why I am for 
the pending bill. I hope my colleagues will vote ``yes.''
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Madam President, I have another matter pressing. I am 
going to leave the remainder of my time in the hands of the Senator 
from Washington. I know the Senator from Rhode Island and others still 
want to speak. There will be time. I believe I have close to 40 minutes 
left--30-some-odd minutes?
  The PRESIDING OFFICER. The Senator has 36 minutes remaining.
  Mr. LEAHY. I now yield to the Senator from Washington such time as 
she may need, and she would then reserve the remainder of our time.
  The PRESIDING OFFICER. The Senator from Washington.


                         Privilege of the Floor

  Mrs. MURRAY. I ask unanimous consent a fellow from my office, Micki 
Aronson, be granted the privilege of the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. MURRAY. Madam President, I rise today in opposition to S. 2271, 
the bill before the Senate this evening. I do so knowing that I have 
the support of the vast majority of Washington State voters who, 3 
years ago, soundly defeated a radical and dangerous referendum that is 
very similar to the bill that is before us today. In 1995, the people 
of Washington State overwhelmingly rejected a referendum that would 
have put developers and resource exploiters ahead of the rest of us. 
They defeated this proposal because they knew it really only amounted 
to one thing: a massive tax increase on regular people. Developers and 
their supporters would have us pay for the right to a high quality of 
life and strong communities, whereas today we enjoy these things as a 
result of basic zoning laws and environmental standards.
  While the measure before us differs somewhat from Referendum 48, its 
underlying motive does not. Developers somehow believe that they are 
being denied their property rights by having to work through local and 
State land use laws. And, to be fair, there have been some isolated 
cases in which a maze of laws has thwarted reasonable environmentally 
sensitive projects. I personally will continue to urge local and State 
governments to streamline their processes to fix these occasional 
problems.
  But, basically, the system works. It is simply not broken, and this 
bill is not necessary.
  Mr. President, the most objectionable provision in this bill is that 
it allows developers to short-circuit local administrative, zoning, and 
other land use procedures. This promises to send increased litigation 
against already strapped local and State governments. This means more 
taxes, both to fund the court battles and, if local governments lose, 
to pay off developers to protect our quality of life. In addition, 
simply the threat of a Federal court may drive a town to acquiesce to a 
developer's demands, because they cannot afford to go to court and 
fight to protect their local land use decisions.
  Frankly, I am surprised at the support this bill has gotten from 
those who traditionally would defer to local government making 
decisions on how best to use land and instead give that decision making 
authority to Federal courts. This seems like quite a reversal. Frankly, 
it seems particularly odd, given the Senate's backlog in filling 
Federal court vacancies.
  While we have moved two of our Washington State candidates--Margaret 
McKeown and Ed Shea--both Senator Gorton and I are pushing very hard to 
get another circuit court nominee, Ron Gould, and a district court 
nominee, Bob Lasnik, heard and confirmed. Another district court judge 
is set to retire in the near future, creating another vacancy. I have 
to ask, Why is the Senate increasing Federal caseloads with this bill 
while simultaneously not filling empty seats?
  That issue aside, this bill is not what this country needs. We do not 
need to undermine our Nation's laws that protect public health, safety, 
and the environment. There are usually very good reasons why 
development is prohibited in certain areas. It could be safety; the 
area could be prone to flooding or to landslides. It could be 
protection of water quality. It might be protection of threatened 
endangered species or ecosystems. And, in those cases where a local, 
State, or Federal entity does unreasonably and actually take a private 
person's property for a public good, we have a well-established legal 
system to provide compensation. And that system is working.
  Let me close by reminding everyone that the Conference of Mayors, the 
National Association of Counties, and the National Conference of State 
Legislators oppose this legislation. In addition, every conservation 
group I am

[[Page S8039]]

aware of opposes this. This is simply not good public policy.
  I am committed to keeping the Pacific Northwest beautiful. I am 
committed to ensuring my constituents have the power to enact 
reasonable zoning ordinances to protect their water and environmental 
resources. I do not believe their taxes should be used to pay off 
developers.
  I pledge to my constituents to work to ensure that the reasons we are 
all so proud to call Washington home remain intact. This bill would 
limit our ability to protect the things we hold precious, and I will 
vigorously oppose it, and I urge my colleagues to do the same.
  I reserve the remainder of our time.
  Mr. HATCH. Mr. President, I yield 5 minutes to the distinguished 
Senator from South Carolina.
  The PRESIDING OFFICER (Mr. Enzi). The Senator from South Carolina.
  Mr. THURMOND. Mr. President, I rise today in support of cloture on 
S.2271, the Property Rights Implementation Act. Put simply, this bill 
is a modest effort to help property owners get their day in court.
  Currently, it is very difficult for many landowners to get into 
court. When a landowner wishes to develop property, he must seek 
approval from local land use authorities, who should quickly evaluate 
the request and make a decision. However, local bureaucracies may take 
years to make a decision or may require the landowner to make countless 
reapplications. There is nothing the landowner can do because the 
courts will wait on a final administrative determination before taking 
any action.
  Under this bill, the courts eventually must act if the bureaucracy 
refuses to make a final decision. The fundamental role of local 
authorities in property development decisions does not change. A 
reasonable administrative determination of a claim is still required 
before the owner can go to court. In other words, the locality will 
still have the upper hand, but it will not hold all the cards.
  After a negative administrative decision, the bill allows a landowner 
to choose to go to Federal court rather than state court, but only 
under certain limited circumstances. If a landowner brings any claims 
under state law, even if the state claims are secondary to the Federal 
claims, the case must proceed in state court. It is only if the 
landowner brings solely a Federal claim for a Constitutional taking 
that the landowner must be permitted to proceed in Federal court if he 
wishes. Moreover, once in Federal court, if an unsettled question of 
state law arises in the case, the question must be certified to the 
state court where possible.
  Some opponents to this legislation have said that it will result in a 
great shift in public power to regulate land. They say that property 
owners will be put at a great advantage over state and local 
authorities who are charged with controlling development, causing 
property owners to win many more claims. This argument will not prove 
to be correct. It cannot because the bill does not change the standard 
for determining a property rights claim. The legislation does not 
provide property owners any more rights than they have today, even 
though the rights they now have are limited and uncertain under case 
law. It is very difficult for a property owner to show that property 
has been taken for purposes of the Fifth Amendment, and that will not 
change under this bill.
  The legislation only makes it easier to get to Federal court for a 
takings claim. It simply gives landowners a fair opportunity to get a 
decision. It does not make it any easier for them to win.
  A limited option of Federal court access should exist when someone is 
trying to adjudicate their property rights secured by the Constitution. 
When other Constitutional rights are violated, such as the right to 
free speech, the person can go immediately to Federal court for relief. 
Why should the right to just compensation for a taking be any 
different? Indeed, for free speech issues involving obscenity, the 
court must look to the standards in the local community, but the 
claimant can still go immediately to Federal court. As Chief Justice 
William Rehnquist has written for the Court, ``We see no reason why the 
Takings Clause of the Fifth Amendment, as much a part of the Bill of 
Rights as the First Amendment and Fourth Amendment, should be relegated 
to the status of a poor relation.''
  I agree with the Supreme Court. This bill would solve that major 
problem. Yet, it makes only modest changes in the current system. I 
hope my colleagues will support this small but important step for 
fairness in property rights.
  Mr. LIEBERMAN. Mr. President, I rise to express my strong opposition 
to S. 2271.
  On the face of this bill, it sounds like the proponents are seeking 
to make some ``procedural'' changes in federal court jurisdiction that 
do not go as far as last Congress' unsuccessful attempts to change the 
standards for granting compensation under the Fifth Amendment.
  But no one should be mistaken. This bill would dramatically change 
the standards--known as abstention and ripeness--which guide the 
resolution of claims for ``just compensation'' against local 
communities in local zoning disputes. The impact of these so-called 
procedural changes would be very significant, making it far easier to 
seriously undermine local land-use decisions. As a New York Times 
editorial stated with respect to the related House bill: ``(The bill) 
is a dangerous piece of work that would threaten local zoning laws, 
reshape time-honored principles of federalism and make Federal judges 
the arbiters of land-use decisions everywhere. It would be a dream come 
true for developers but a nightmare for rational community planning.'' 
I believe that conclusion would apply with equal force to the bill 
before us.
  That is why the bill is opposed by the National Governors 
Association, the League of Cities, the United States Conference of 
Mayors, the National Association of Counties, the Judicial Conference 
of the United States, 40 Attorneys General, major religious groups, the 
National Trust for Historic Preservation and a broad array of 
environmental and public interest groups.
  For my State, this type of proposal is particularly contrary to what 
our citizens are seeking. There is no bigger issue right now in the 
State than the desire to preserve open space from development. Our 
Governor, John Rowland, has initiated a major program to preserve open 
space and the State Legislature has strongly supported these efforts. 
Connecticut is not unique: all over the country, states and localities 
are making preservation of open space a top priority.
  This bill would seriously undermine these efforts by greatly 
expanding the volume of land-use litigation against local communities. 
Equally important, the heightened threat of litigation would 
significantly increase the leverage of developers over local 
communities in negotiations over land use issues. The existing 
authority of local governments to resolve local land use issues in 
their community would be undermined, and the ability of the public to 
participate in land-use decisions affecting their communities would be 
greatly diminished. In short, the end result of this legislation would 
be to undercut the ability of our nation's localities to protect zoning 
and land use regulations which average homeowners depend on to protect 
their investments.
  In reviewing the Committee and Minority views on the bill considered 
by the Committee, I was particularly struck by a comment by Senator 
DeWine during the markup. He stated: ``The bill would in effect, leave 
local land use planners with two bad options--acquiesce to developers 
by making lenient decisions, or do whatever they think necessary to 
protect the local community and then face multiple suits in Federal 
court without having much negotiating ability with property owners.'' 
Senator DeWine is right and with respect to the bill before us, too.
  What is striking about this bill is the direct attack it makes on the 
ability of local and state governments to determine what is best for 
their communities, despite the fact that there is no evidence that 
local governments are incompetent or routinely deal in bad faith with 
developers. Nor is there any record to support the proposition that 
state courts cannot deal fairly with local land use zoning disputes.
  Mr. President, I cannot see any reason why this Senate should pass 
legislation that is a wholesale attack on the

[[Page S8040]]

ability of our localities and states to protect the values and fabric 
of the communities in which we live. I urge my colleagues to vote 
against the cloture motion.
  Mr. GRAMS. Mr. President, I rise today in support of S. 2271--the 
Property Rights Implementation Act of 1998.
  As a landowner, businessman, and Senator, I have long been concerned 
that the imposition of too many regulations adversely impact 
individuals and businesses. For too long, bureaucrats have exercised 
broad authority over local citizens and oftentimes trampled on their 
constitutional rights. It is time to bring even more comprehensive 
protections of property rights to the Senate floor for debate and a 
vote, and S. 2271 provides those missing or abused protections.
  I am proud to say that I joined many of my colleagues last year in 
co-sponsoring S. 1204, Senator Coverdell's Property Owners Access to 
Justice Act of 1997. That bipartisan legislation--very similar to that 
which we are debating today--simplified access to the federal courts 
for private property owners whose rights may have been deprived by 
government actions.
  As we all know, the fifth amendment to the U.S. Constitution provides 
our nation's citizens with certain protections against the taking of 
their property. In cases where a taking is required, the Constitution 
ensures that the property owner is provided just compensation. 
Unfortunately, that is almost never the case and I doubt anyone in this 
chamber would claim the contrary. In the name of the ``public good,'' 
governments often either take property or deem it unusable for 
virtually any productive purposes. Too often, property owners are then 
left with a worthless piece of land for which there is no use or little 
resale value.
  Property owners are then forced to navigate their way through a maze 
of bureaucratic red tape and unending local and state roadblocks in 
fighting any unjust action. They are forced to exhaust any and all 
state or local remedies prior to having their claim heard in federal 
court. Because most property owners do not have the resources or the 
time to fight a taxpayer-subsidized army of lawyers and hurdles, they 
merely give up--unafforded their constitutional rights.
  I am aware that the National League of Cities, the U.S. Conference of 
Mayors, and a whole host of State Attorneys General are opposed to S. 
2271--but why? Because S. 2271 may actually force them to consider the 
rights of property owners before taking action. If the property in 
question is truly needed for the public good, then they should use 
eminent domain and acquire the property rather than leaving the owner 
holding the bag.
  It is important to remember several points regarding S. 2271. First, 
S. 2271 does not circumvent local governments. Property owners must 
attempt to work through local procedures and be denied at least twice 
prior to seeking federal court action. S. 2271 does not preempt local 
zoning. Any use of the land by the property owner must be consistent 
with local zoning requirements--if not, S. 2271 does not apply. 
Additionally, S. 2271 does not require compensation or remove the 
burden to proof from the property owner in proving harm or the 
justification for compensation.
  Similar legislation--authorzied by Congressman Gallegly--was 
introduced in the House last year. It quickly gathered the support of 
237 co-sponsors and passed the House last October by a vote of 248 to 
178. Likewise, S. 1204 was introduced in the Senate last September with 
Senators Landrieu and Dorgan as cosponsors. Both bills received 
significant bi-partisan support upon introduction and throughout the 
legislative process.
  Mr. President, it is time we provide property owners with certainty. 
It is time we provide property owners with avenues for action. And it 
is time we provide property owners with the rights guaranteed them 
under our Constitution. I urge my colleagues to vote in support of the 
cloture petition for S. 2271.
  Mr. BURNS. Mr. President, I rise today to address the important issue 
of private property rights and to support the Property Rights 
Implementation Act of 1998, S. 2271.
  Private property rights have been the cornerstone of our free 
society. The fifth amendment of our Constitution states, ``private 
property shall not be taken for public use without just compensation.'' 
Currently, too many Americans are being denied fair access to Federal 
courts in order to uphold their fifth amendment constitutional rights.
  S. 2271 would expedite access to the federal courts for individuals 
hurt by a government ``taking'' of private property. At the same time, 
it protects states rights by ensuring that any question of state or 
local law that is unclear to the fundamental merits of a case is to be 
sent back to the state courts before a federal court can continue.
  Mr. President, the right of the people to be represented and heard is 
the basis of our government.
  S. 2271 gives us the opportunity to ensure that the people of our 
nation are not ignored. It allows an individual citizen to exercise 
their fifth amendment rights provided to them by our founding fathers 
without costing them thousands of dollars and without taking 8 or 10 
years of court proceedings to maintain these rights. As we've all heard 
before, ``justice delayed is justice denied.''
  S. 2271 only re-enforces the constitution and the intent of our 
founding Fathers who understood the value of private property from the 
standpoint of individual political freedoms and individual economic 
freedoms. Those who would argue in opposition are supporting more 
government control by not allowing an individual to care for their own 
property. I believe each individual land owner can and should be 
responsible for their property without breaking current environmental, 
federal, state, or local laws. This bill does not create special rights 
for property owners; it simply allows them the same access to federal 
courts as other plaintiffs claiming a violation of their constitutional 
rights.
  Mr. President, for these reasons I stand in support of S. 2271 and 
hope that my colleagues on both sides of the aisle will do the same. I 
also want to thank Mr. Lott and Mr. Hatch for bringing this important 
legislation to the floor.
  Mr. COVERDELL. Mr. President, I rise today in support of the motion 
to proceed to consideration of S. 2271, the Property Rights 
Implementation Act of 1998. This bill, introduced by the senior Senator 
from Utah, incorporates provisions of the bipartisan bill I introduced 
last year along with the Senator from Louisiana, Senator Landrieu, on 
this same subject.
  Our legislation, the Property Owners Access to Justice Act, was 
introduced to simplify access to the federal courts for private 
property owners. S. 2271 would accomplish the same objective. The 
Constitution requires that when the government takes private property 
for a public purpose, the property owner must receive just 
compensation. This ``takings clause'' guarantee is one of the strongest 
defenses we have against arbitrary government.
  Yet in many cases property owners must navigate a time-consuming and 
expensive procedural maze to protect their rights. Federal courts do 
not consider a takings case ``ripe'' for their consideration until all 
state law issues have been resolved and all administrative remedies 
exhausted. For property owners this can mean years of court battles and 
tens of thousands of dollars in legal fees just to win the right to 
have a federal court hear the merits of their case. One study found 
less than 6% of takings claims filed between 1983 and 1988 were ever 
deemed ripe for federal court adjudication.
  Small landowners, first-time home buyers, and family farmers simply 
cannot afford this process. They deserve to have their claims heard and 
their rights in their own property settled.
  S. 2271 sets a clear standard for when a claimant has exhausted all 
administrative remedies by defining when a ``final decision'' has been 
reached for purposes of ripeness doctrine. It also allows property 
owners to choose whether to assert their Fifth Amendment rights in 
state or federal court.
  The supporters of S. 2271 believe that property owners deserve the 
same access to justice as persons defending their rights to free 
speech, freedom of religion, due process, or any other freedom 
protected by the Constitution. If your rights under the First Amendment 
are infringed by the government,

[[Page S8041]]

you are not told to endure endless administrative hearings before 
seeking to uphold your rights in court. Fifth Amendment rights deserve 
the same degree of protection. Under the S. 2271, private property 
owners will no longer be turned away at the courthouse door.
  Mr. President, it is important to note that S. 2271 is strictly 
procedural in nature. It does not change substantive law. It does not 
define a ``taking'' or establish a trigger for when compensation is 
due. It does not give property owners any special access to the federal 
courts. On the contrary, it allows property owners the same access to 
federal courts that other claimants currently have.
  The property owner would still shoulder the burden of proving that he 
or she has been injured and deserves compensation. The bill gives 
property owners a choice of how and where to assert their property 
rights under the Constitution. If the property owner wants to pursue 
action against a local or state agency that has infringed on his or her 
rights, the property owner can sue in state or local court, as he would 
now. Or, if the property owner wants to reject that route and instead 
pursue a Fifth Amendment takings claim, the case can be heard in 
federal court.
  We should note that the provisions of this bill only apply to Fifth 
Amendment constitutional claims. Issues relating to state law or local 
ordinances or regulations would be resolved in state court. This bill 
does not bring state law claims into federal court.
  Opponents of this legislation have claim that it will abolish local 
control over zoning decisions or will federalize zoning law. 
Suggestions that this bill intrudes on the prerogatives of local 
governments are simply wrong.
  Under the bill, a property owner must submit a land use application 
to the local entity with authority to make land use decisions. If an 
application is denied, the applicant will have to either reapply or 
file for an appeal. If the local land use authority explained the 
denial and how to change the application so that it would be approved, 
the applicant must reapply taking into account the suggestions in the 
new application. If the second application is denied, the applicant may 
go to the next step--the applicant must appeal or request a waiver of 
that land use decision to the administrative body with the power to 
review those decisions. If a local elected body exists in the locality 
which has the power to review appeal decisions or land use decisions, 
the applicant must seek review from that body. If that review is 
denied, then a final decision for purposes of ripeness has been reached 
and the applicant may then file a claim in federal court.
  There are at least three and up to five opportunities for the local 
land use agencies and governments to make critical decisions regarding 
land use applications in their community before an applicant would be 
able to file a claim in federal court. Anyone who runs that gauntlet 
and still wants to file a federal claim may or may not prevail on the 
merits, but the claim will certainly not be frivolous.
  S. 2271 applies to claims filed in federal court which involve only a 
federal Fifth Amendment taking claim. A federal court may still dismiss 
the case or send it back to state court if there is a pending state 
claim based on the same set of facts, the claim asserts state law 
claims, or the claim involves a state regulatory matter. But the 
fundamental purpose of this bill is to enable citizens to defend their 
federal constitutional rights in federal court. This in no way 
denigrates the lawful authority of local governments over land use, 
because all levels of government must obey the Constitution.
  Mr. President, S. 2271 is a narrowly targeted but vitally important 
step toward restoring full protection of a fundamental constitutional 
right. I urge support for the motion to proceed.
  Mr. FEINGOLD. Mr. President, I wanted to take a few moments to state 
my opposition to S. 2271, the Private Property Rights Implementation 
Act of 1998.
  First, Mr. President, on behalf of my constituents, I want to 
indicate my strong concerns about the manner in which this bill has 
come to the Senate floor, and indicate why I opposed cloture on the 
motion to proceed to this bill. If necessary, I will return to the 
floor to discuss my concerns about this legislation in greater detail. 
The Senate Judiciary Committee, upon which I serve, reported H.R. 1534, 
the Citizen's Access to Justice Act of 1997, with amendments. I voted 
against reporting that measure.
  In an effort to address concerns raised in Committee debate when the 
bill was reported, the Chairman and Senior Senator from Utah (Mr. 
Hatch) announced that he would work with Committee members to seek 
necessary improvements. The bill now before us embodies what the 
Chairman would have offered on the floor as a substitute amendment to 
H.R. 1534 as reported. Not only do I take exception to the result of 
this attempt to ``improve'' the bill but I am also alarmed at the speed 
with which this measure has been brought to the floor. The resulting 
bill number shuffle and procedural debate over whether or not the 
proponents would be offering a substitute amendment has left my 
constituents, on both sides of this issue, frustrated and confused.
  This extremely technical and complicated matter is of critical 
importance to a wide variety of interests in my state who have followed 
this legislation since the early days of this Congress. Thus, I had 
hoped to act with greater concern for those constituents interested in 
the outcome of this measure as we sought to move it to the floor.
  Procedurally, I am also concerned, Mr. President, that S. 2271 
differs significantly from the legislation the Judiciary Committee 
reported. Members, for the first time, have heard about the substance 
of this bill through floor debate today. Given the potential impact of 
this legislation on both the federal government and local governments' 
financing and regulatory structures that we should have given members 
both a comprehensive written description of the changes contained in S. 
2271 and additional opportunities to discuss this legislation with 
their constituents.
  I voted against this measure in Committee and oppose the bill 
currently before the Senate for a number of reasons. First, this bill 
will result in a increase in litigation over local zoning matters in 
federal courts. As a result of the Listening Sessions I hold in every 
Wisconsin county every year I have worked with constituents on a number 
of regulatory red tape issues. It is clear that the last thing 
Wisconsinites want or need is a bill that ``takes'' scarce resources 
away from local governments by exposing state and local officials in 
our state to threat of federal liability in their attempts to control 
local land use and follow federal law.
  As my colleagues have pointed out, this bill creates an opportunity 
for clever lawyers to profit at the expense of local ordinances to 
which we in the Judiciary Committee, and in this body, normally claim 
to defer. Certainly, this bill is not consistent with any claim of 
deference to state and local authority. It is an explicit transfer of 
power to the federal government.
  This bill purports to lessen the impact upon the prerogatives of 
local governments, but it continues to allow broad exceptions to the 
very abbreviation of local land use processes which the bill itself 
mandates, a process which can be now be the subject of federal 
litigation.
  As the Ranking Member of the Judiciary Committee (Mr. Leahy) has 
explained that S. 2271 lowers two threshold barriers to bringing 
takings claims against federal and local governments in federal courts. 
It does so by legislating both the circumstances under which courts can 
abstain from hearing a case and dictating when a claim may be heard by 
a federal court --known as ``ripeness.''
  In the case of takings lawsuits against the federal government, a 
case is ripe for adjudication when, as the bill defines it, a federal 
agency has made a ``final decision.'' A ``final decision'' exists when 
an either an application or an appeal to use the property has been 
submitted but not been approved ``within a reasonable time.'' Similar 
language is incorporated to specify when suits can be brought against 
local governments, and that section is somewhat more deferential to 
local governments. The bill is more deferential to local land use 
regulatory bodies, unlike when a claim is brought against a federal 
agency, by arguably making it more likely that an initial application 
will be filed.

[[Page S8042]]

  Let me repeat that for colleagues, to make it clear. Under this 
legislation in certain circumstances an individual is able to sue the 
federal government for a taking without even submitting an application 
to a federal agency to determine whether the action they propose 
violates federal law. The bill says that the party seeking redress 
under this bill would not be required to submit an application or 
appeal if the district court holds that such actions would be futile. 
Futility is defined as the inability to seek or obtain approvals to use 
real property as defined under applicable land use or environmental 
law. I would point out that while futility is defined for actions in 
district courts, there is no definition of futility for the Court of 
Claims, though an individual making a claim against the federal 
government has the option under this legislation, which also concerns 
this Senator, to sue in either court. These provisions allow litigation 
not when a Constitutional right is deprived, that is when the 
government denies compensation for restricted use or condemnation of 
property, but rather when the use of the property itself has some 
conditions placed upon it.
  I would like my colleagues to think for a moment about what kind of 
anti-regulatory and anti-compliance actions the futility exemption in 
this legislation would encourage. Such language suggests that if one 
knew or might know, as an experienced developer, that a particular type 
of wetland filling activity would not be likely to be permitted under 
the Clean Water Act, then one would be free to claim that requesting a 
permit for such an activity would be futile and sue the federal 
government.
  Even if the government dismisses that case, as I am sure the bill's 
supporters argue it would, because there are no supporting facts and no 
application, under the language of this bill the court isn't allowed to 
abstain. Aren't we sending the wrong message, Mr. President? In 
Wisconsin, often my constituents are unaware when an action they have 
taken requires them to interact with a federal agency, and my office 
helps constituents in those circumstances. But this legislation 
explicitly provides that if know that an action is prohibited, you may 
sue to be compensated being denied the right to do it anyway. And for 
those who will argue that such suits won't happen, I'd reply by saying 
it's a genuine risk under this legislation. If an extreme suit against 
the government is successful, the federal government is obligated to 
pay the court costs of prevailing plaintiffs.
  These same provisions apply to suits against local governments, 
though courts can abstain if an initial application isn't filed and 
there is some discretion given about whether prevailing plaintiffs 
would have to be awarded court costs. I also want to make clear that 
this bill applies to local land use decisions because I believe there 
may be some Senators who are under the impression that this bill 
applies only to actions taken by federal agencies.
  However, this is not the case. S. 2271 contains additional provisions 
which limit local decision making, expanding upon similar provisions 
contained in the House-passed version of this legislation. For example 
it would require a land-use applicant to ``take into account'' any 
suggestions given by the land use agency which denied the application 
when reapplying before the applicant pursues federal litigation. This 
language is still unclear, and certainly local governments that will 
have their hands tied by this bill share this view.
  Second, I remain concerned that this bill applies to all forms of 
property. Proponents claim that it only applies to real property. It 
may indirectly expand of the definition of private property. This will 
undoubtedly lead to creative lawsuits and increased costs for the 
taxpayers.
  This bill allows vindication of ``all interests constituting property 
rights, as defined by Federal or State law, protected under the fifth 
and fourteenth amendments to the United States Constitution.'' I would 
remind my colleagues that ``all interests constituting property'' is a 
much broader category than real estate. Moreover, the bill creates the 
right of access to federal court for any actions taken by federal 
agencies as described in Section 6 that ``infringe or take'' the rights 
to ``use and enjoy real property.''

  Starting down the road of extending litigation rights to all forms of 
property, and all uses of property may lead the federal government to 
protect interests we might otherwise not protect.
  Take for example contractual rights to receive water from the federal 
government. At present, there is no federal right to ``receive'' water 
except as provided by a contract, even though a supply of water clearly 
is related to the ability to produce crops on one's real property. The 
Bureau of Reclamation delivers water in 17 Western states, pursuant to 
contracts, for primarily agricultural purposes. Each year, it allocates 
water based upon supplies available in reservoirs and other storage 
facilities. Most contracts generally anticipate that delivered 
quantities may vary on an annual basis.
  During the drought of 1993, the Bureau of Reclamation reduced the 
quantities of water supplied to the Westlands Water District. It 
allocated a portion of the limited water available to protect fish in 
accordance with the requirements of the Endangered Species Act. When 
agricultural users received only 50 percent of their contract 
quantities, Westlands sued alleging that the liability limitations of 
the contract were invalid and that the agricultural users were 
guaranteed a fixed quantity of water at a fixed price. They contended 
that despite the liability limitations of the contract, the Bureau's 
water allocation decisions improperly deprived them of water and 
entitled them to compensation.
  The Ninth Circuit Court of Appeals dismissed Westlands' claim, 
sustaining the federal government's contract defense. This legislation 
would create an expedited procedure for bringing takings claims, and 
specifically provides for causes of action when ``use'' is restricted, 
thus potentially compromising the federal governments' argument in the 
Westlands case that the government was in compliance with the contract. 
In response to questions I submitted about last Congress's takings 
legislation, which had similar definitions of ``use,'' then Counselor 
to the Secretary of the Interior Joseph Sax wrote explicitly about the 
Administration's concerns with the potential for property rights 
legislation to create a new category of federal water law:

       Where Congress has recently restructured federal 
     reclamation projects to direct more economically and 
     environmentally sensitive management, as it has done for 
     example in California's Central Valley Project,. . .[a]ny 
     steps the Department of Interior takes to implement these 
     congressionally ratified improvements would doubtless result 
     in demands for compensation by affected interests if these 
     bills became law.

  Other portions of the bill raise similar questions. For example, is 
it the intent of the language to suggest that any person taking an 
action that causes injury to a property right, but doesn't actually 
take the property, creates the right of access to federal courts? Even 
if that action is supported or mandated by a local or state ordinance 
or statute? How would one substantiate an action which damages the 
``right to enjoy'' one's property? This is just another example of the 
kinds of problems this legislation poses. And what about the 
distinction the bill makes by including special reference to ``real 
property'' without defining that term?
  Wisconsin communities are deeply afraid of the litigation costs and 
general erosion of the notion of community that will be implicit in the 
answers to these questions. Mr. President, I have heard almost 
unprecedented levels of opposition to this legislation from local 
governments all over my state, from large cities like Milwaukee and 
Madison to small communities like the Village of Park Ridge near 
Stevens Point and Cudahy, Wisconsin. Individuals of every political 
affiliation oppose this legislation, and editorials opposing similar 
bills have appeared all over my state.
  To me, however, one of the best arguments against this legislation 
was sent to me by the former Mayor of New London, Wisconsin, Gregory 
Mathewson. After the H.R. 1534 passed the other body and was sent to 
the Senate Judiciary Committee former Mayor Mathewson wrote:

       Our fear with this legislation is that it tilts the current 
     balance and increases the range of things a property owner 
     has a right to do. Meaning that communities no longer have 
     any clear authority to zone property or decide between 
     conflicting interests on the basis of the best interests of 
     the community as a whole.

[[Page S8043]]

       We often have homeowners who do not wish to see apartments 
     of any type built near them, owners of large houses who do 
     not want small houses built near them, and we routinely have 
     to tell people that the City exists for all persons not a 
     few, and that the poor, the non-land owning and others shall 
     be welcome.
       We fear now that these decisions will involve us in 
     continuous litigation in federal court, and all notions of 
     community will be eroded as the questions and issues will be 
     so generalized by the courts that local reasons, customs and 
     planning will be irrelevant.
       I ask you to see that a balance is maintained, the 
     community ought to have rights balances against individual 
     rights. In its current form, H.R. 1534 appears to eliminate 
     this balance. Everybody seeks out places to live which offer 
     a high quality of life. It must be clear that there is no 
     quality of life if someone can do anything they want with 
     their property or sue over any perceived impact on their 
     property. In either case, the individual controls the 
     community and this is the operational definition of anarchy.

  Mr. President, Wisconsin communities respect property rights, and 
want to have well developed and well planned cities, towns, and 
villages. This legislation goes too far in seeking not just to clarify 
but to enhance the procedural rights of property owners to seek 
compensation under the fifth and fourteenth amendments to the 
Constitution. In doing it would have unintended consequences that might 
undo the unique character of towns across America and within my home 
state. It is for this reason, and the others I have described, that I 
oppose this legislation. I urge other Senators to join me in seeking 
its defeat.
  Mr. KENNEDY. Mr. President, I oppose this legislation. Much of the 
bill is almost certainly unconstitutional, and all of it is 
unnecessary. States and municipalities already have adequate ways to 
decide questions of property rights.
  The goal of this misguided legislation is not to protect the 
constitutional rights of property owners, but to create new rights for 
wealthy developers. It would alter the balance of power in their favor, 
and force local governments across the nation to accept a wide range of 
activities that harm communities.
  This legislation is a Pandora's Box of problems for local communities 
and the federal judiciary. It will force municipalities into federal 
court early in the land-use process. It will force federal judges to 
accept cases involving sensitive land-use issues that should be handled 
at the local or state level. It will add a new burden to federal 
courts, at a time when they are already over-burdened. It will 
substantially--and unconstitutionally--broaden the jurisdiction of the 
Court of Federal Claims.
  The bill is the latest attempt by the Republican Congress to tip the 
balance against neighborhoods and towns and in favor of developers. It 
isn't unreasonable to ask property owners to consider the health, 
safety, and zoning needs of the local community. State and local 
planning and zoning boards, and health and safety commissions, exist to 
protect local needs, and balance them with the interests of property 
owners.
  Each person's property rights are bounded by his neighbor's interests 
and limited by the public interest. It is not against the law for the 
government to ``take'' private property for public use. It is only 
against the law to take it without compensation. Local involvement is 
necessary to this process. Only at the local level can the proper 
determination of value be made and the necessary negotiations take 
place. Once decisions are made at the local level and state courts have 
a opportunity to reach a decision, property owners have the right to 
appeal to federal courts if they are dissatisfied with the local 
decision. There is nothing wrong with the current law that this 
legislation will fix.
  By forcing federal courts into earlier stages of these local 
decisions, it will give landowners an unfair ``big stick''--the threat 
of federal litigation.
  And that threat is real. Currently, a federal judge may refuse to 
hear a case if it is not yet ``ripe'' for adjudication in a federal 
forum, or involves issues better dealt with in state courts. This bill 
will allow big developers to force local planning issues out of local 
administrative and judicial forums, where they belong, and into federal 
courtrooms, where they don't belong.
  The bill also undermines the principles enunciated by the Supreme 
Court in the Williamson case, which held that remedies should be 
pursued at the state level before being sought in federal court. As the 
Court noted, ``Rejection of exceedingly grandiose development plans 
does not logically imply that less ambitious plans will receive 
similarly unfavorable reviews.'' In other words, a city can deny a 
permit to build a factory on a piece of land, but might well allow 
residential development.

  Most disputes about property are resolved by this back-and-forth 
process between local officials, neighbors and developers. Through this 
process, the community shapes the kind of growth it wants and can 
support. By allowing a developer to bring a city into federal court 
after filing one proposal, this bill will promote litigation at the 
expense of negotiated solution. Because municipalities are often small 
and federal lawsuits are costly, localities will be coerced into 
abandoning sensible land-use plans because they can't afford a lawsuit. 
This bill will certainly interfere with necessary local efforts to 
protect the quality of their communities, including the water, air, and 
open space, and health and safety, too.
  Most communities across the country are small. Very few have legal 
staff. Yet these are the communities that will have to defend their 
regulations and zoning decisions in federal court if they don't 
surrender to big developers' demands. Some of the cases that this bill 
would affect could easily pose serious threats to the health and safety 
and well-being of our communities.
  Finally, there are serious constitutional questions about the bill's 
proposed expansion of the jurisdiction of the Court of Federal Claims. 
That court is an Article I court, not an Article III court. It has no 
authority over Congressional or agency actions. It was created to hear 
monetary claims against the federal government. Expanding its scope 
will cause it to cross over into the realm of Article III courts.
  The Judicial Conference of the United States opposes granting the 
Court of Federal Claims the power of injunctive and declaratory relief, 
and the authority to invalidate Acts of Congress or agency regulations. 
The power to invalidate Acts of Congress and federal regulations has 
historically been part of an independent judiciary. The Court of 
Federal Claims does not have the tenure and salary protections of an 
Article III court that ensure judicial independence. So this bill is 
likely to be held unconstitutional under standard doctrines of 
separations of powers.
  Judicial efficiency in the already over-burdened federal court system 
will also suffer, as more federal lawsuits are filed against zoning 
boards, land-use bodies and regulatory agencies. The cases this 
legislation will unleash will burden the federal courts at a time when 
there are over 70 judicial vacancies. The irony is obvious--our 
Republican colleagues won't confirm more judges, but they're more than 
willing to add to the current excessive workload.
  These complex issues of local land use are currently being resolved 
at the appropriate level. Congress should reject this heavy-handed 
scheme to curry favor with developers at the expense of homeowners and 
neighborhoods across America.
  Mr. GRASSLEY. Mr. President, I rise in support of the property rights 
legislation we are currently considering. The question we have to 
answer today is simple. Do we want to give to homeowners and farmers 
the same rights to go to Federal court when their constitutional rights 
are infringed that we already give to flag burners and neo-Nazis who 
preach hate. For my Part, I think that hardworking farmers and 
homeowners ought to have at least as many constitutional rights as 
Nazis and flag burners.
  For the benefit of my colleagues, I'd like to point out how this bill 
would change current law to correct the outrageous preference that 
activist Federal judges have given to flag burning over property 
rights. The current bill modifies the abstention doctrine, which 
provides that Federal courts will decline to hear certain court cases 
if there is on-going litigation in State court or before a State 
administrative agency.

[[Page S8044]]

  Now, on its face, the abstention doctrine sounds good. I believe that 
Federal courts should decline to hear lawsuits when State governments 
or State courts are in the process of considering the same issues. This 
prevents the duplication of efforts and respects States' rights.
  The property rights bill we're considering today would create an 
exception to the abstention doctrine for people who want to protect 
their constitutional right to own and control their property.
  The thing to remember, however, is that the Federal courts have 
already created exceptions to the abstention doctrine. Let's look at 
some of the cases where the Federal courts have decided not to abstain. 
In other words, let's look at some cases where Federal courts went 
ahead and heard a court case even though a State government was in the 
middle of considering the same case.
  In the case of Collins versus Smith, a Federal court decided not to 
abstain when a town in Illinois decided against issuing a parade permit 
to the American Nazi Party which wanted to march in a Jewish 
neighborhood. The Nazi Party couldn't afford to pay a fee which the 
town required, and so the Nazi Party was not given a permit to have 
this march. The Nazi Party challenged this decision as a violation of 
their constitutional rights and the town was considering whether to 
waive the fee or not to waive the fee. But the Nazis got tired of 
waiting and went to Federal court. And the court decided that it would 
hear the case even though there was a pending State proceeding.
  So, the Nazi Party gets to protect their rights in Federal courts--no 
questions asked and without having to wait for State proceedings to 
conclude. But property owners don't have that ability. They can't just 
run into Federal court.
  Mr. President, I think that's just plain wrong. I believe that 
hardworking Americans who own homes and hardworking farmers trying to 
work their land ought to have at least as many constitutional rights as 
the Nazi Party. If we pass this bill, we'll stop this unfairness.
  Nazis aren't the only ones who get treated better than property 
owners. Flag burners have it pretty good as well. In Sutherland versus 
DeWulf, the city of Rock Island, Illinois tried to prosecute someone 
who had burned an American flag. So the flag burners went straight into 
Federal court to sue the city government. Even though there were on-
going State proceedings, the Federal court decided to hear the case and 
specifically rules that it would not abstain until after the State 
proceedings were finished.
  Again, this is unfair. It doesn't make sense to say that homeowners 
and farmers have to wait to have their day in court but flag burners 
can get their day in court any time they want. I think that property 
owners ought to have at least as many constitutional rights as flag 
burners.
  So, Mr. President, we have a chance today to correct this absurd 
preference for flag burners and Nazis. Why should they get a special 
key to unlock the courthouse doors, while homeowners and farmers have 
to wait outside the courthouse for years until some Federal judge 
decides it's okay to file a property rights case. For once, let's use 
some common sense and pass this bill.
  In the last Congress, the Judiciary Committee considered a 
comprehensive property rights bill. That was a good bill, and the 
Senate should have passed it. But there was strong opposition from 
intellectual elitists of the far left who have no regard for the 
concept of protecting private property rights. Those who spoke against 
the last property rights bill said it was too broad.
  So, this Congress, we have a more narrowly focused bill. But even 
this more narrow bill isn't acceptable to the opponents of property 
rights.
  Given what I've just pointed out about the preferential treatment 
that flag burners and Nazis get in terms of access to the Federal 
courts, I think that just shows how extreme and out-of-touch the other 
side is on this issue. I yield the floor.
  Mr. President, I yield the floor.
  Mr. HATCH. Mr. President, I yield 3 minutes to the distinguished 
Senator from Idaho.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. HATCH. Will the Senator yield for 1 second? Mr. President, I ask 
unanimous consent that after the Senator's remarks, I reserve the 
remainder of my time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAIG. Mr. President, I congratulate Chairman Hatch for bringing 
the Senate this important reform measure to safeguard Americans' 
property rights.
  The concept of property is at the root of civilization as we know it. 
The right of the individual to acquire, possess and use property is one 
of the natural rights that does not depend on government for its 
existence; on the contrary, governments were formed in part to protect 
that right. Our Founders also saw the right to private property as the 
key to spurring individuals initiative and productivity that would 
ensure national prosperity and security. For that reason, the concept 
of property and the importance of its protection permeates the 
Constitution--there are references to it throughout the document, in 
addition to the fifth amendment's prohibition against the taking of 
private property for the public good, without just compensation.
  Unfortunately, however, all these rights aren't worth the paper they 
are printed on, unless they can be enforced. That principle applies 
even to the Constitution. Our Founding Fathers may have thought the 
fifth amendment would shield the people of this country from government 
taking their property without just compensation. But for all too many 
Americans the shield has no substance, the promise of protection is 
hollow, the Constitution's guarantee is an empty one--all because they 
cannot enforce it against government encroachment.
  This is not an isolated problem for a few wealthy Americans. In 
communities across the nation it is ruining family businesses, 
devaluing property of all kinds, preventing people from building homes 
and sometimes even from cleaning up pollution or hazards. In short, it 
is depriving citizens of all incomes from every state of one of the 
most prized basic human liberties.
  There are many aspects of the erosion of private property rights 
protection and many ways to attack the problem. Chairman Hatch and I 
and others have tried in the past to enact a comprehensive solution. 
Unfortunately, that effort ran headlong into another political agenda, 
and for that reason, we have put it aside for the near term. Meanwhile, 
however, it makes sense to push ahead on a more limited--but still 
important--part of the solution.
  The bill before us today, the Property Rights Implementation Act of 
1998, focuses on the judicial side of the equation. Currently, people 
trying to vindicate their constitutionally guaranteed property rights 
face a procedural catch-22. They are forced to jump endless hurdles on 
the way to court, and then are bounced from court to court to obtain 
relief. At every step, the system is biased to the benefit of 
government and against the citizen. The costs are often staggering.
  If it were this difficult to enforce any other constitutional 
guarantee, we would have seen reform long ago. Even members of the 
judicial branch have acknowledged that clarification is seriously 
needed in this area.
  This bill would simplify the path to court and clarify the 
jurisdiction of the courts. It doesn't grant any new rights but only 
attempts to clean up the procedural quagmire that presently frustrates 
access to the courts. This is a precise and limited reform that would 
make a big difference to the citizens who are forced to litigate in 
order to protect their property rights.
  I know that local governments have been concerned that this 
legislation may interfere with their areas of jurisdiction. However, 
this bill does nothing to reduce the power of local governments to make 
decisions with regard to property. Furthermore, this legislation 
actually exempts localities from paying attorneys' fees if they lose a 
takings claim. If the case involves a critical question of state or 
local law that is unclear, that question will be sent back to a state 
court for decision before the federal case can continue. In short, the 
bill does nothing to take away power from state and local government, 
while it strengthens the protection of individual citizens' rights.

[[Page S8045]]

  Mr. President, the House has already passed similar legislation by an 
overwhelming vote. S. 2271 is an important reform, and I urge all 
Senators to support its passage. Let's most this bill to conference and 
then on to the President for enactment.
  In conclusion, Mr. President, I am pleased to stand with the chairman 
of the Judiciary Committee today in support of S. 2271, the Property 
Rights Implementation Act of 1998.
  We can talk about constitutional rights, and we should; we can talk 
about the very basic foundation of our economy, and we must. All of us 
are in favor of the environment, but some like to put the rights of the 
collective over the right of the individual.
  What we are trying to do here today is sort a little bit of that out, 
because, yes, people buy property for a variety of reasons. They buy it 
to hold as you would put money in a bank, hoping that some day in the 
future you might be able to use it as an investment purpose to retire. 
It reminds me of a lady I met from Texas not long ago. She and her 
husband had done so. They had bought a small piece of property a long 
ways out of Dallas 30 years ago, hoping that some day it might be of 
value.
  All of a sudden, the suburbs of Dallas reached the property. Her 
husband is dead, and this is her retirement. The Federal Government, in 
cooperation with the municipal government, said that property can now 
not be developed for a multitude of reasons. This lady only can go to 
court to redeem her values, but in this instance, she has no money.
  While this particular legislation would not address that example, it 
would go a long ways toward honoring our constitutional rights and, 
most assuredly, would have allowed this individual her day in court. 
That is one example.
  In my State of Idaho, where there are people who have held property 
for generations and like to continue to hold them for a variety of 
reasons--ranching or farming because it is their livelihood--only to 
have the Federal Government step in and determine that certain uses may 
not go on on that land or certain practices--or the land itself may be 
habitat for a particular species of plant, animal or bird, the value of 
that property is diminished because of the flexibility that the 
individual has to manage and operate that property, not for investment 
purposes, but as an income property. Yet, in those instances, and in 
most instances, the opportunity to recoup those kinds of losses are 
denied.
  There are a good many other examples, Mr. President, and my time is 
limited this afternoon. I stand in strong support of this legislation 
and hope that my colleagues will join with me in gaining cloture for 
the purpose of debating this issue.
  The PRESIDING OFFICER. Who yields time?
  Mrs. MURRAY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. I yield 10 minutes to the Senator from Rhode Island.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. CHAFEE. Mr. President, there has been considerable discussion 
this afternoon about compensation and takings and so forth, but what 
this really is all about is, are we going to permit the local 
authorities to have the powers that they have had in the past to deal 
with local zoning matters and matters similarly associated therewith.
  What the proponents of this legislation are saying is that we don't 
want that, we don't want to have a situation whereby you must exhaust 
your local remedies. Even though that is recognized to apply in the 
fourth amendment where we are dealing with unlawful searches and 
seizures, for example--and there the courts have said you have to 
exhaust your local remedies--here is what they are also saying in 
connection with these so-called property rights under the fifth 
amendment.
  For some peculiar reason that I haven't quite been able to fathom 
here, those people who have long been stalwarts of the local authority 
and the powers of the locals--local elected officials, for example--are 
suddenly saying, ``No, no, no, you don't know how to do this; we're a 
lot smarter than you are; we're Federal officials, we live inside the 
beltway, this is where we make our decisions and we're going to tell 
you how to run these matters on your local level.''
  Even though the Supreme Court recognizes that, yes, there can be no 
taking of private property without just compensation, they are saying 
that, first, you must exhaust your local remedies, you must let this 
what they call ``ripen.'' We have gotten adjusted to that. For over 200 
years, this is the way this system has worked. But, ``No, no,'' say the 
proponents of this legislation, ``that's not fast enough. Your local 
officials really don't know how to do this. What they are doing is they 
are holding up matters too long.''
  It is true that you, the local voters, for example, from your town or 
your city, your county, wherever it might be, you are tolerant of this, 
you are satisfied with the way the system works.
  But we are in Washington, DC. And we say, ``No, we don't like that. 
We're going to change it for you. And, yes, your mayors can come to us 
and your Governors can come to us and your local legislators. We're 
going to dismiss you. We don't care what you want, we're going to tell 
you how to do this. We're pretty smart here in the U.S. Government, and 
we're going to straighten this thing out. No, we don't have to bother 
having any hearings. We'll tinker with this and change it all around 
and bring it to the floor. That's all right.''
  As the senior Senator from Vermont has pointed out, there has not 
been 30 seconds of hearings on this bill we have before us, but they 
say that is all right because we are all very, very smart around here 
and we know what is best. And so we are saying to the president of the 
U.S. Conference of Mayors, the president of the National Association of 
Counties, the president of the National League of Cities, and the vice 
chairman of the National Conference of State Legislatures, and so 
forth, this is the way we are going to do it.
  We are going to say, ``You don't have to exhaust your remedies.'' All 
you have to do in my State--I am not familiar how it works in every 
State; I know how it works in my State--if you want to make a dramatic 
change in zoning where you live, you want to put a multifamily 
structure up in a single family development, you say, ``I'm going to go 
to the zoning board.'' And you ask permission for this. And if the 
zoning board says no, then you file with the zoning board of review. 
And that is all you have to do. You do not have to do anything else.
  You do not have to go through that. And you do not have to take the 
steps and go to the State district court. Bang, you can go into Federal 
court. And there some federally appointed judge is going to tell you 
just how to straighten this thing out. He is going to tell you what to 
do, not your local officials, not your elected members of the zoning 
board or the zoning board of review. Not your mayor--he has nothing to 
do with this. It is going to be a federally appointed judge. And we 
have heard all --I do not know how many times on this floor we have 
heard about the dangers of activist Federal judges. And so we are going 
to have an activist Federal judge tell us what to do in East Greenwich, 
RI, or wherever it might be.
  Mr. President, I do not think that is right. I can see why they 
avoided having a hearing on this final bill, because it would have been 
trash. And it came out on practically a straight party-line vote. It 
indicates the lack of support for this legislation.
  Mr. President, I want to make one more point. When we have these 
things come up, a zoning request on the local level, there is great 
effort made to compromise it, to negotiate it in some fashion. ``All 
right. You want to fill in a wetland? No, you can't fill in that 
wetland. There's a place where you can work out a situation, restore a 
wetland just right up the road. And this is the way we will work it 
out.''
  That is what local officials do. They know they are living there. 
They are dealing with their neighbors and people they know. They are 
not some Federal judge from some distant place who comes into town 
riding the circuit every now and then and says, ``This is the way it's 
going to be.'' But the problem is, you do not have that negotiation, 
that attempt to compromise, that attempt to work these matters out.

[[Page S8046]]

  I also might say, this has a very, very chilling effect on the local 
officials, because if the local officials are in a situation where they 
know they can be jerked into the Federal court--they make a decision on 
whether it is the preservation of a wetland or the preservation of the 
zoning, the one-acre zoning, whatever it might be--they are going to be 
very leery of making a decision against the wishes of the home 
builders, for example.
  Why are the home builders so enthusiastic about this legislation? Are 
they trying to preserve the environment or preserve some open space or 
do what is best for the community? Well, it is totally understandable. 
They are looking after their own interests. That is what they want. So, 
Mr. President, they are going to be going right into the Federal court. 
They have plenty of money.
  If I come from a relatively small town, and my little town is jerked 
into the Federal court--and we have a city solicitor--the town 
solicitor, who isn't paid much, if he is going to start going to 
Federal court and have to answer to every request for a change in the 
zoning, it is going to be a big bill that he is going to submit to this 
town.
  Mr. President, I certainly hope that this so-called Property Rights 
Implementation Act of 1998, which is going to come before us in a half 
an hour on a question of cloture--I certainly hope that everybody will 
vote against cloture.
  I thank the distinguished Senator from Washington for letting me 
speak.
  Mrs. MURRAY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. I suggest the absence of a quorum and I ask unanimous 
consent that it be divided equally between both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mrs. HUTCHISON. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. HUTCHISON. I ask unanimous consent that I be allowed to speak 
for up to 4 minutes on behalf of the bill.
  The PRESIDING OFFICER. Is the Senator using time from either side or 
is this an additional request?
  Mrs. HUTCHISON. It is an additional request.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. HUTCHISON. Thank you, Mr. President. I want to thank the Senator 
from Washington for allowing me to use some time because I think there 
are a couple of other Senators who will be speaking on her side very 
shortly.
  Mr. President, I commend Senator Hatch for his commitment to ensuring 
protection of private property rights as required by our Constitution 
and for trying to do everything we can to assure the private property 
provision of our Constitution is adhered to. People seem to overlook 
the fifth amendment sometimes, which says that:

       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.
  In spite of this unequivocal protection of private property in the 
Bill of Rights, the Federal Government has often adopted laws that 
violate these important rights. One law, for example, which has been 
implemented to the detriment of private property rights in Texas is the 
Endangered Species Act. In the Texas Panhandle, the Endangered Species 
Act has been used to protect a bait fish called the Arkansas River 
shiner. To protect the fish in Texas, even though it thrives in New 
Mexico, the water supply for cities such as Amarillo and agriculture in 
the area are put in jeopardy. In Travis County, families who purchased 
residentially zoned lots in good faith to build their homes are being 
penalized. In addition to the cost of their lots, they are forced to 
pay $1,500 as an added fee to protect habitat for the golden-cheeked 
warbler, in an area where 20,000 acres already are set aside for that 
purpose.
  There are many other examples like this that demonstrate how laws can 
be used to actually violate constitutional rights. For this reason, I 
support property rights protections. We tried in the 103d Congress and 
in the 104th Congress, to guarantee compensation to landowners whose 
private property was devalued due to government regulations. 
Unfortunately, we were unsuccessful in adopting these reforms. Today, 
we are trying a new approach. Senator Hatch has put forward a new 
approach that adjusts our legal process to assure that constitutional 
rights are secured for the private property owners of our country.
  Now, what Senator Hatch is doing is really mostly technical in 
nature. It is giving people the right to have their cases heard. I 
don't think Americans should have to spend all of their money just 
seeking to challenge the violation of rights that are guaranteed to 
them under the Constitution. I don't think that is due process. So I 
commend this bill because I do think it will take one step in the right 
direction toward protecting private property rights and helping private 
property owners at least have their cases adjudicated in court.
  The bill does not speak to the real issue which is how we can 
accommodate environmental laws in a way that also protects the rights 
of private property owners. I hope this Congress will address the basic 
issue soon.
  In the meantime, this bill at least will take us a step toward 
allowing people due process to protect their private property rights. I 
think it is time that the American people who own property have the 
ability to fully protect their rights guaranteed by the Constitution. I 
hope that we will all support this bill.
  I thank the Senator from Washington. I yield the floor.
  The PRESIDING OFFICER. If neither side yields time, it will be 
deducted equally from each.
  Mr. LEAHY. Mr. President, if I might, the other side was last to 
speak. If they have not called a quorum call, my understanding is the 
time is still on their time.
  The PRESIDING OFFICER. The Senator is not correct. Under the 
precedent, if neither side yields time, the time is deducted equally.
  Mr. LEAHY. Mr. President, parliamentary inquiry. There may have been 
another unanimous consent request when I was off the floor.
  If somebody had sought recognition and yielded time for that person 
to speak, they do not call the quorum call, and nobody else seeks 
recognition subsequent to their speaking, does the time continue to run 
against whoever had been yielded time?
  The PRESIDING OFFICER. Precedent is that the time is deducted from 
both sides equally.
  Mr. LEAHY. So if somebody sought recognition on their time and just 
stands there silently, while they are standing there silently, the time 
is running equally?
  The PRESIDING OFFICER. If they are yielded for a set amount of time, 
that time will be deducted from their side. Once they yield the floor 
and they sit down, the time is no longer charged to them, it is charged 
to both sides equally.
  Mr. LEAHY. How much time remains to the Senator from Utah and the 
Senator from Vermont?
  The PRESIDING OFFICER. The Senator from Utah has 4\1/2\ minutes, and 
the Senator from Vermont has 21\1/2\ minutes.
  Mr. LEAHY. And the vote is set for quarter of?
  The PRESIDING OFFICER. Yes.
  Mr. LEAHY. I yield myself 5 minutes.
  We continue to hear what an improvement we have in the new bill, S. 
2271, as compared to H.R. 1534. Maybe it is, but maybe it isn't an 
improved bill. I don't believe it is an improved bill but it is a 
different bill.
  Frankly, we have before the Senate a different piece of legislation 
in which there has not been 38 seconds of hearings. We have before the 
Senate a bill which, unlike other major legislation, does not have a 
specific report before the Senate. We have a bill that is brought down 
in time for the Monday afternoon bed check vote, without a report, 
without a hearing.
  Mr. President, we are asked to pass a piece of legislation that would 
dramatically encroach on the rights of the municipalities, counties, 
and States in our country. It would be a massive shift of power from 
the local people and communities to the Federal courts.
  I think one of the reasons it is being rushed through is that the big 
developers who want it don't want the public to look at this very long. 
But those

[[Page S8047]]

who have looked at it are opposed to it. That includes the National 
Governors' Association, the National Association of Counties. Others 
who oppose it include the National League of Cities, the U.S. 
Conference of Mayors, the National Association of Towns and Townships, 
the National Conference of State Legislatures. The bill that was 
reported, H.R. 1534, was also opposed by those groups and the 
International Municipal Lawyers Association, 38 State attorneys 
general, and the American Planning Association.
  Among those opposed to having that unprecedented shift of power to 
the Federal courts are the Judicial Conference of the U.S. Conference 
of Chief Justices and the Administrative Office of the U.S. Courts.
  Among those religious organizations opposed to that bill are the 
United States Catholic Conference, the National Council of Churches of 
Christ, Religious Action Center for Reform Judaism, and the 
Evangelicals for Social Action.
  Among the public interest groups that are opposed to it are the 
League of Women Voters, the Alliance for Justice, the Physicians for 
Social Responsibility, the National Trust for Historic Preservation, 
and the U.S. Public Interest Research Group.
  Among the conservation groups against it are the National Wildlife 
Federation and the League of Conservation Voters. Those who oppose it 
include the Sierra Club, the National Environmental Trust, the 
Environmental Working Group, the Center for Marine Conservation, the 
Environmental Defense Fund, the National Audubon Society, the Great 
Lakes United, the Earth Justice Legal Defense Fund, Izaak Walton League 
of America, the Scenic America, and the Wilderness Society, Natural 
Resources Defense Council, the Rails to Trails Conservancy, and the 
National Parks and Conservation Association, Friends of the Earth, 
Defenders of Wildlife, Appalachian Mountain Club, and the American 
Oceans Campaign.
  Among those who are opposed to it are the American Federation of 
State, County, and Municipal Employees and the United Steelworkers of 
America.
  For the same reason that this Vermonter is opposed to the new bill, 
S. 2271, the Vermont League of Cities and Counties, is also opposed. 
They just wrote to me on the new bill saying:

       Dear Senator Leahy: I am writing you to express our strong 
     support for your actions in opposing S. 2271. * * *
       Local governments are working very hard in Vermont to 
     exercise appropriate authority over land uses in their 
     communities. We are joined in this in very real fashion by 
     the Vermont legislature which this past session adopted 
     legislation clarifying our ability to regulate wireless 
     telecommunication facilities under zoning.
       What would a volunteer part-time planning commission or 
     zoning board of authority do if a national wireless 
     telecommunications company came into town, not only with its 
     platoon of attorneys and engineers but also with the ability 
     to say, ``you take a wrong step and you're in federal 
     court?''

  Continuing from their letter:

       The chilling effect of that combination would be immense. 
     It is already hard to find people willing to serve on local 
     boards and commissions. With the threats proposed in the 
     Takings legislation, many good public servants at the local 
     level would simply give up.

  That is from the Vermont League of Cities and Towns.
  In an earlier letter, they asked me ``At what cost to the 
communities?'' This is a question being answered at the local level by 
local zoning boards of Charlotte, Hardwick, Cabot, and other towns 
throughout the State. I think we ought to pay some attention to it. In 
the Sunday Burlington Free Press, the homebuilders themselves made this 
statement regarding urban sprawl:

       Urban growth is not really Congress' purview. . . . I think 
     most Members of Congress recognize that planning ought to 
     take place at a local or State level.

  Then I ask, why are they pushing this bill? They want the Federal 
Government to take authority away from our States. Do the homebuilders 
need this for a win?
  I said earlier that we Vermonters may differ in the way our State and 
communities should be handled as compared to how they would be handled 
by some large-scale, wealthy developer. That is our choice to make. I 
spoke of some of the most beautiful spots in our State that my wife and 
I love driving by. Each one has enormous developmental value, but we 
Vermonters have decided not to develop it. Now, we Vermonters pay the 
price for that. We get less tax revenue. We make less from our land; I 
know I do from my own land.
  I have 220 acres on my tree farm. We could earn a lot more if Vermont 
suddenly zoned everything for commercial use. But I don't want to do 
that. I like the quality of life in Vermont. I like not having to lock 
my door. I like being able to walk through my fields and see a deer, or 
to ski down one of the logging trails on my property, as I have in the 
wintertime, and to see an owl floating on the thermals ahead of me by 
the moonlight. I liked being awakened about 3 o'clock this morning by 
the screech of a bear near my home. Frankly, I like that better than 
the screech of brakes in a congested urban intersection.
  They also told us we would lose a great deal in Vermont when we did 
away with billboards. But a couple out-of-State billboard companies 
didn't do so well. The scenic vistas of Vermont were opened up and the 
tourism increased.
  Mr. President, we ought to stop taking things out of the hands of 
small communities and counties in our States. We ought to let the 
people of West Virginia make their decisions and the people of Vermont 
make their decision and not say: We are going to yank this out of your 
hands and put it in Federal court.
  Mr. President, I reserve the balance of my time.
  Mr. HATCH. Mr. President, I yield 2 minutes to the Senator from 
Alabama.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Mr. President, I would like to congratulate Chairman 
Hatch for his outstanding work on this very important issue that deals 
with a constitutional right that is as fundamental as our right to free 
speech. The Constitution says that the Government cannot take 
somebody's property without paying just compensation for it. Let me 
repeat that. Property cannot be taken without it being paid for.
  Too often in America today, we have government agencies that would 
like to take control of someone's property, but they don't want to pay 
for it. So these agencies take property through the use of regulations 
and laws. Sometimes their actions are legitimate. For example, zoning 
regulations are often perfectly legitimate rules that we have to have 
if we are going to live together. But there often reaches a point in 
which the actions of a municipality, or a county, or a State, or a 
Federal Government--which is primarily what we are dealing with here--
can, in fact, take the beneficial use of that property without offering 
any compensation for it. That is wrong; it should not happen.
  This bill is a modest, very reasonable step. Senator Hatch has 
compromised and worked with those who have different views, and he has 
crafted a bill that is logical, reasonable, realistic, and that will 
protect our Constitutional property rights while not doing anything 
that would deny our ability to protect our environment. To me, it is 
clearly wrong to say that passage of this legislation would in any way 
restrict the environmental rights in this country. So I join in support 
of it. I think it is outstanding legislation. It simply provides a 
mechanism to protect our cherished fifth amendment constitutional 
rights.
  The PRESIDING OFFICER. Who yields time?
  If no one yields time, time will be deducted equally.
  Mr. LEAHY addressed the Chair.
  The PRESIDING OFFICER (Mr. Allard). The Senator from Vermont.
  Mr. LEAHY. Mr. President, how much time is remaining?
  The PRESIDING OFFICER. You have 11 minutes 20 seconds.
  Mr. LEAHY. How much time is remaining for the Senator from Utah?
  The PRESIDING OFFICER. One minute thirty-six seconds. The vote will 
take place at 5:49, which under the unanimous consent agreement was 
moved from 5:45 to 5:49.
  Mr. LEAHY. The vote is at what time?
  The PRESIDING OFFICER. 5:49.
  Mr. LEAHY. Mr. President, I yield myself 4 minutes.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, we can probably sit here on the floor and

[[Page S8048]]

think of some horror stories where a town made a mistake in holding 
something up. We could point somewhere to some local court where 
another mistake might have been made, or to a few prosecutors out of 
the thousands of our local prosecutors where one bad judgment call was 
made.
  But we don't have the arrogance in this body to say we will take over 
all our local courts, all our local communities, all our local 
prosecutors, and turn them over to the Feds because mistakes won't be 
made. Because I can tell you right now that for every mistake made at 
the local level I could point to a bigger one made at the Federal 
level. I think that is why the Judicial Conference says don't quickly 
toss these matters into the Federal courts. The Federal courts can't 
keep up with the cases that are there today, especially when the Senate 
won't vote to confirm judges for the vacancies already existing.
  Let's not do this. And let us say that the U.S. Senate, of all 
places, will protect the current state process and rights of local 
communities and local counties and States to make their own decisions.
  Why do we want to say to our small towns that they can not decide to 
protect a particular area? Why do we say they should not be able to 
stop a building from being built next to a particular scenic spot? If 
they are willing to forego tax revenue by doing that, and they are 
willing to pay the price themselves--why do we want to say that some 
big developer from out of State could come in with a platoon of lawyers 
and endless pockets and say, ``Oh, the heck with you. We know better. 
We can make a quick buck on that, and we will take you to Federal court 
if you do not let us do it"?
  Before the Congress bulldozes local and state jurisdiction, we need 
to ask ourselves what urgent problem is being solved by this bill that 
could not be solved some other way? What is so urgent that we have to 
step in right now and wipe out the local land use process of our towns, 
our cities, our counties or our States? What is such a pressing need 
besides the current concerns of a couple of well-financed PACs? What is 
the urgent concern in this country that we have to suddenly rewrite the 
rule books and say from the Federal Government, ``you people at the 
local government level don't know what you are doing, and we are going 
to step in and take it over"?
  Mr. President, I reserve the remainder of my time.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, how much time do I have?
  The PRESIDING OFFICER. One minute thirty seconds.
  Mr. HATCH. Mr. President, let me use part of that.
  Let me say what the five truths of the bill are.
  This bill does not affect State or localities or local rights, and it 
only applies to real property.
  No. 2, it does nothing to stop localities from zoning or passing or 
enforcing environmental measures.
  No. 3, it does not increase Federal litigation against localities, 
because the bill does not create new law. And takings cases are 
expensive to bring. The Congressional Budget Office agrees with that.

  No. 4, what the bill does is it grants property owners their day in 
court, which is denied in many cases by local court procedures or by 
local procedures, which at times are like the Minotaur's Labyrinth.
  No. 5, currently property owners must litigate on average 9\1/2\ 
years before they can get a Federal court to reach a decision on the 
merits. No other constitutional right is treated that way.
  In fact, in Dolan v. City of Tigard, the Supreme Court said, ``We see 
no reason why the takings clause of the fifth amendment, as much of a 
part of the Bill of Rights as the first amendment, or fourth amendment 
should be delegated to the status of a poor relation.''
  We are trying to stop that. This bill will do it.
  We have had hearings on it time after time over the years. We have 
added on this substitute four additional matters, mainly to help people 
who have raised concerns.
  I hope our colleagues will support us on this motion to proceed.
  Mr. LEAHY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, the fact is we have never had a hearing on 
this particular bill, S. 2271, not in the U.S. Senate. The fact is we 
do not have a report on this bill. S. 2271 was rushed to us and stuck 
on the calendar. It was just introduced last week. And without one 
second of hearings on this bill, without one word of a report, we 
Senators are asked to push forward and vote on it.
  I am concerned that this bill radically changes a system which 
resolves thousands of land use decisions each week in thousands of 
American communities and cities. The zoning system in this country is 
working well. It is helping mayors, like Mayor Giuliani in New York, 
clean up their communities. Yet, as Mayor Giuliani said, the efforts he 
has made to clean up crime and clean up porno shops and clean up a lot 
of other problems in New York City, could be swept aside by this 
legislation.
  I could show you stacks of letters from local citizens in Vermont, in 
Pennsylvania, in North Carolina, and in many other States who are up in 
arms about a provision of the 1996 Telecommunications Act that 
overrides local and State decisions involving cellular transmission 
towers. That provision, and this bill, were the subject of a recent 
article in Governing Magazine that was aptly titled, ``The National 
Zoning Nanny.''
  Do we really want to federalize these local decisions by booting them 
into Federal court?
  This bill is unwise, it is unsound, and it is unwarranted. We ought 
to be standing up here and defending our mayors, Governors, and our 
attorneys general, our towns and cities, and others in our States who 
understand the unintended consequences of this bill. We ought to stand 
up and say the people of Wyoming, Vermont, Utah, West Virginia, Rhode 
Island, North Carolina, Missouri, Alabama, North Carolina, South 
Carolina, South Dakota, North Dakota, Indiana, and Washington State, as 
the distinguished Senator from Washington State, Mrs. Murray said, know 
best how to make their decisions. And these people do not need the U.S. 
Senate to suddenly give them some new unfunded mandate and to make them 
liable for lawyers fees. We ought to respect the ability of the States 
to make decisions about how they run their communities, to make a 
decision of what is going to be built next to their schools or their 
churches or what kind of digging will go on next to the aquifers in 
their towns. All of these things could be quickly put before federal 
courts if we were to pass this bill.
  Mr. President, in one minute, we are going to be voting. I hope we 
will vote not to proceed with this bill. We have never had a hearing on 
it. We never had a report on it. This issue is not ripe.
  Mr. President, I yield any time I may have.


                             cloture motion

  The PRESIDING OFFICER. All time has expired. Under the previous 
order, the hour of the vote having arrived, the clerk will report the 
cloture motion.
  The bill clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provision of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the motion to 
     proceed to the private property rights legislation:
         Trent Lott, Orrin Hatch, Jon Kyl, Chuck Hagel, Tim 
           Hutchinson, Rod Grams, Pat Roberts, Pete Domenici, Dan 
           Coats, Michael B. Enzi, Larry E. Craig, Craig Thomas, 
           John Ashcroft, Frank Murkowski, Don Nickles, and Dirk 
           Kempthorne.


                            Call of the Roll

  The PRESIDING OFFICER. By unanimous consent, the quorum call under 
the rule has been waived.


                                  Vote

  The PRESIDING OFFICER. The question is, Is it the sense of the Senate 
that debate on the motion to proceed to S. 2271, the Property Rights 
Implementation Act, shall be brought to a close?
  The yeas and nays are required. The clerk will call the roll.
  The bill clerk called the roll.

[[Page S8049]]

  Mr. NICKLES. I announce that the Senator from New York (Mr. D'Amato) 
and the Senator from Tennessee (Mr. Frist) are necessarily absent.
  Mr. FORD. I announce that the Senator from Delaware (Mr. Biden), the 
Senator from Louisiana (Mr. Breaux), the Senator from Ohio (Mr. Glenn), 
and the Senator from New Jersey (Mr. Torricelli) are necessarily 
absent.
  The yeas and nays resulted--yeas 52, nays 42, as follows:

                      [Rollcall Vote No. 197 Leg.]

                                YEAS--52

     Abraham
     Allard
     Ashcroft
     Bennett
     Bond
     Brownback
     Burns
     Campbell
     Coats
     Cochran
     Conrad
     Coverdell
     Craig
     DeWine
     Domenici
     Dorgan
     Enzi
     Faircloth
     Ford
     Gorton
     Gramm
     Grams
     Grassley
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Kempthorne
     Kyl
     Landrieu
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Reid
     Roberts
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--42

     Akaka
     Baucus
     Bingaman
     Boxer
     Bryan
     Bumpers
     Byrd
     Chafee
     Cleland
     Collins
     Daschle
     Dodd
     Durbin
     Feingold
     Feinstein
     Graham
     Gregg
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Reed
     Robb
     Rockefeller
     Roth
     Sarbanes
     Snowe
     Wellstone
     Wyden

                             NOT VOTING--6

     Biden
     Breaux
     D'Amato
     Frist
     Glenn
     Torricelli
  The PRESIDING OFFICER. On the vote, the yeas are 52, the nays are 42. 
Three-fifths of the Senators duly chosen and sworn not having voted in 
the affirmative, the motion is rejected.
  Mr. LEAHY. I move to reconsider the vote.
  Mr. CHAFEE. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. LOTT addressed the Chair.
  The PRESIDING OFFICER. The majority leader is recognized.

                          ____________________