[Congressional Record Volume 145, Number 42 (Wednesday, March 17, 1999)]
[Extensions of Remarks]
[Page E468]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 LANDOWNERS EQUAL TREATMENT ACT OF 1999

                                 ______
                                 

                             HON. DON YOUNG

                               of alaska

                    in the house of representatives

                       Wednesday, March 17, 1999

  Mr. YOUNG of Alaska. Mr. Speaker, today Congressman Tauzin, 
Congressman Pombo and I, joined by more than 20 cosponsors, are 
introducing the Landowners Equal Treatment Act of 1999. The purpose of 
this bill is to insure that private property owners are compensated 
when their land must be used by the federal government as habitat for 
endangered or threatened species. The United States Constitution in the 
5th Amendment states ``nor shall private property be taken for public 
use, without just compensation.'' The Supreme Court has said that the 
right to be compensated for the taking of private property for a public 
use is a fundamental constitutional right on the same level as the 
right to free speech and free exercise of religion.
  There are some in our country who no longer revere or respect the 
rights of private property owners. Their view is that using land for 
wildlife habitat is more important than protecting the right to own and 
control the use of private property. However, the purpose of our bill 
of rights is prevent the current whims of the majority from infringing 
on the rights of each individual in our country to certain liberties 
and freedoms guaranteed in our constitution. One of the most important 
of these is the full rights of ownership of private property, which 
includes the right to use and enjoy the fruits of ownership of 
property.
  Over the last several years, bills have been introduced to insure 
that property owners are protected by requiring compensation when 
property is taken, to insure that property owners have the right to 
bring suit to protect their own property rights, and to make property 
rights lawsuits less cumbersome. Certainly, landowners can file suit 
for compensation under the Constitution, but as you know these lawsuits 
are so expensive, time consuming and difficult, that ordinary citizens 
lose their land or their right to compensation because they cannot 
afford these lawsuits. Yet, the Clinton administration, has 
consistently opposed any and all efforts to protect private property 
rights.
  However, the Clinton administration has vigorously sought 
compensation for impacts on government lands when other public agencies 
must make use of them. This bill guarantees that private landowners, 
who enjoy the protections of the Bill of Rights, receive equal 
treatment with government agencies, which do not have the protections 
of the Bill of Rights.
  On February 4, 1999 I chaired a hearing on the Minnesota Valley 
National Wildlife Refuge. During the course of that hearing, we learned 
of a Federal Aviation Admininstration statute and regulation, that 
allowed the Fish and Wildlife Service to receive ``compensation'' for 
the lost ``use'' of refuge lands due to off-site impacts from aircraft 
overflights. The law requires the Secretary of Transportation to avoid 
or minimize impacts on public lands when approving construction of 
federal transportation projects. The Clinton administration is 
interpreting this law and rule to require that the Transportation 
Department first avoid impacts, then minimize impacts and if that can't 
be done to compensate for the impacts. This resulted in the Fish and 
Wildlife Service receiving an agreement for compensation of more than 
$26 million to be paid from revenues of the local airport through 
charges on airport users.
  The way that the Fish and Wildlife Service and the FAA interpret 
whether they are ``using'' public lands that requires the payment of 
compensation is through a definition of ``constructive use''. According 
to the FAA ``A `constructive use' can occur when proximity effects, 
such as noise, adversely affect the normal activity or aesthetic value 
of an eligible Section 4(f) property--even though there may be no 
direct physical effect involving construction of transportation 
facilities.
  A ``constructive use'' can occur where there is no physical presence 
or invasion of the property, but where the landowner's use is so 
limited by the imposition of the use by the public for habitat, that 
for all practical purposes the landowner can no longer use his own 
lands. Examples of this have occurred on an all too frequent basis. Our 
committee has heard testimony that the federal government has prevented 
homebuilders from constructing on their property because it is habitat 
for marsh rabbits, mice and rats. Farmers have been prevented from 
farming because of the presence of rats and fairy shrimp. Ranchers are 
being told to halt cattle grazing because of the presence of rare 
plants or birds. Schools have been halted due to the use of local lands 
because it is habitat for pygmy owls. And private timber owners are 
being told to put timber lands off limits to further uses because of 
the presence of owls, marbled murrelets, and salmon.
  The Clinton administration would argue that it is not a taking of 
property if only a small part of the property is put aside for habitat 
because the landowner still has other property they can use. However, 
in the Minnesota Valley National Wildlife Refuge, the airport noise 
only affected a small part of the property and yet the full 
compensation was paid for the impact on the portion of the property 
that was affected. Landowners ought to receive the same treatment and 
the same right to be compensated for the use of their property whether 
it affects the entire parcel or only a portion of the parcel.
  The bill that we introduce today will insure that private property 
owners are compensated on the same basis as the Fish and Wildlife 
Service. It only deals with the requirement of the Endangered Species 
Act that habitat of species be protected, even when that habitat is 
someone's private property. It would require the same sequencing as is 
currently applied to public lands--first avoid using private property 
for public use, if that is not possible, then minimize the impacts and 
if that is not possible mitigate through compensation. The bill defines 
what a public use is in the same manner that the FAA has defined it to 
include a ``constructive use''. It then lists the types of actions 
under the ESA that would be within the definition of use or 
constructive use. These are actions that result in the land being used 
as habitat by the government to the detriment of the property owner. 
The landowner would be compensated for any portion of land taken.
  The fact is that this bill will help not only private property owners 
but also our nation's endangered plants and animals. The right way to 
protect endangered species is through cooperative and voluntary efforts 
of private property owners. Most private property owners are delighted 
to provide a home to the nation's wildlife when the rights of the 
private property owner are respected. However, when the federal 
government forces landowners through coercion or threats of prosecution 
to set aside valuable land for nonuse because it is habitat, landowners 
will have no incentive to protect habitat for wildlife. Protecting 
private property rights is the right thing to do for people and 
wildlife.

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