[Congressional Record Volume 146, Number 30 (Thursday, March 16, 2000)]
[House]
[Pages H1089-H1114]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           PRIVATE PROPERTY RIGHTS IMPLEMENTATION ACT OF 2000

  The SPEAKER pro tempore. Pursuant to House Resolution 441 and rule 
XVIII, the Chair declares the House in the Committee of the Whole House 
on the State of the Union for the consideration of the bill, H.R. 2372.

                              {time}  1401


                     In the Committee of the Whole

  Accordingly, the House resolved itself into the Committee of the 
Whole House on the State of the Union for the consideration of the bill 
(H.R. 2372) 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; to prevent Federal courts from abstaining from exercising 
Federal jurisdiction in actions where no State law claim is alleged; to 
permit certification of unsettled State law questions that are 
essential to resolving Federal claims arising under the Constitution; 
and to clarify when government action is sufficiently final to ripen 
certain Federal claims arising under the Constitution, with Mr. 
LaTourette in the chair.
  The Clerk read the title of the bill.
  The CHAIRMAN. Pursuant to the rule, the bill is considered as having 
been read the first time.
  Under the rule, the gentleman from Florida (Mr. Canady) and the 
gentleman from North Carolina (Mr. Watt) each will control 30 minutes.
  The Chair recognizes the gentleman from Florida (Mr. Canady).
  Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I 
may consume.
  Mr. Chairman, the Private Property Rights Implementation Act of 2000, 
which is now under consideration by the House, would provide property 
owners with meaningful access to justice when they seek to assert their 
Federal rights under the takings clause of the fifth amendment in 
Federal court.
  The fifth amendment to the United States Constitution prohibits the 
Federal Government from taking private property for public use without 
just compensation. This takings clause, which was made applicable to 
the States through the fourteenth amendment, has been held to require 
the Government to provide just compensation not only when property is 
directly appropriated by the Government but also when governmental 
regulations deprive a property owner of all beneficial uses of the 
land.
  Under current law, however, property owners whose property has been 
taken through government regulation may not proceed directly to Federal 
court to vindicate their rights. Instead, they must first clear two so-
called prudential legal hurdles designed by the Supreme Court to help 
ensure that such claims are sufficiently ripe for adjudication.
  First, property owners must demonstrate that the Government entity 
charged with implementing the regulations has reached a final decision 
regarding the application of the regulations to the property at issue 
and, second, property owners must show that they sought compensation 
through the procedures the State has provided for doing so.
  The application of these requirements by the lower Federal courts has 
wreaked havoc upon property owners whose takings claims are 
systematically prevented from being heard on the merits in Federal 
court. Under these requirements, many property owners are forced to 
endure years of lengthy, expensive, and unnecessarily duplicative 
litigation in State and Federal court in order to vindicate their 
constitutional rights.
  In today's debate, we will hear accounts of the Kafkaesque legal maze 
that property owners are thrown into, and I would urge the Members of 
the House to pay close attention to the experiences that Americans are 
going through under these faulty legal rules that are now being applied 
by the courts.
  Property owners whose Federal takings claims are dismissed on 
ripeness grounds by Federal courts also sometimes face a procedural 
pitfall that results from being forced to litigate first in State 
court: application of the doctrines of res judicata and collateral 
estoppel to bar Federal takings claims.
  This procedural trap operates as follows: Federal court will dismiss 
a property owner's takings claim because the property owner has not 
first litigated the claim in State court; when the property owner 
returns to Federal court after litigating the State law claim in State 
court, the Federal court will hold that the Federal takings claim is 
barred because it could have been litigated in the State court 
proceedings.
  The effect of the reasoning of these cases is that many property 
owners have no opportunity to have their Federal constitutional claims 
heard in Federal court. No other constitutional rights are subjected to 
such tortuous procedural requirements before the merits of the 
plaintiffs' cases can be heard.
  In addition to these procedural hurdles, Federal courts have also 
invoked various abstention doctrines in order to avoid deciding the 
merits of takings claims that are brought to Federal court.
  The combined effect of all these procedural rules is that it is 
exceedingly difficult for property owners to vindicate their 
constitutional rights in Federal court. According to one commentator, 
Federal courts avoided the merits of over 94 percent of all takings 
cases litigated between 1983 and 1988. Another more recent study found 
that in 83 percent of the reported cases raised in Federal court 
between 1990 and 1998, that 83 percent of those were dismissed on 
ripeness or abstention grounds at the district court level.
  H.R. 2372 was designed to address this systematic suppression of 
property rights claims by clarifying and simplifying the procedures 
which govern property rights claims in Federal court. In particular, 
H.R. 2372 clarifies, for purposes of the application of the ripeness 
doctrine, when a final decision has been made by the Government 
regarding the permissible uses of property.
  H.R. 2372 also removes the requirement that property owners litigate 
their takings claims in State court first, and prevents Federal judges 
from abstaining in cases that involve only Federal takings claims.
  Under the bill, before a landowner can go to Federal court, the 
landowner who has received a denial from a local government must pursue 
a wide range of available options at the local level. Now, this is a 
very important provision of the bill, and I urge all the Members of the 
House to pay close attention to this provision of the bill in 
particular.

  The claim has been made that this bill short-circuits the zoning 
process; that somehow we run an end run around the zoning process; we 
eliminate any incentive for aggrieved property owners to negotiate with 
the local governments who are involved in the zoning. Those claims are 
simply untrue.
  Under the bill, the landowner must pursue an appeal to the local 
planning commission, seek a waiver from the local zoning board and seek 
review by elected officials, if such redress is available, under the 
local procedures. Where the government disapproves an application and 
explains in writing the use, density and intensity of development that 
would be approved, the bill requires that the landowner submit a second 
application and be rejected a second time before going to Federal 
court.
  So this bill shows substantial deference to the local zoning 
procedures, but the bill does recognize that at the end of the process 
at the local level,

[[Page H1090]]

when all of these steps have been gone through, if the local government 
makes a decision that results in the taking of property without 
compensation, there should be access to the Federal courts to vindicate 
the constitutional right which has been violated.
  Now, under the bill for a case to be ripe for adjudication in Federal 
court, the Government must either actually reach a final decision on 
the application or else the locality or Federal Government must fail to 
act on the application within a reasonable time.
  The constitutional basis for this legislation is found in Congress' 
well-established authority to regulate practice and procedure in the 
Federal courts. The ripeness requirements that the courts have imposed 
are not mandated by the Constitution. There will be some debate over 
that here today.
  It is clear that there are some problems with the decisions of the 
Supreme Court with respect to ripeness. Otherwise, we would not be here 
on the floor with this bill in an effort to correct those problems.
  The Supreme Court in recent cases has made clear, the Supreme Court 
has stated, that the requirements with respect to ripeness that are at 
issue here are prudential, what the Court calls prudential procedural 
requirements that are created by the Court and are not constitutional 
requirements. Unfortunately, what the courts have considered prudential 
requirements are, in fact, working a grave injustice and denying 
Americans who have suffered a constitutional deprivation meaningful 
access to Federal courts.
  The bill before the House today represents an appropriate exercise of 
Congress' authority over procedure in Federal courts to ensure that 
property rights are no longer treated as second-class rights with no 
meaningful Federal forums for their vindication.
  I urge the Members to vote in favor of H.R. 1218, to reject the 
weakening amendments that will be offered and to have the House move 
forward with this important legislation to protect constitutional 
rights.
  Mr. Chairman, I reserve the balance of my time.
  Mr. WATT of North Carolina. Mr. Chairman, I yield myself such time as 
I may consume.
  Mr. Chairman, let me acknowledge from the outset that we often get 
results from State courts, local governments, Federal courts, from 
every source, that we do not especially agree with. That happens quite 
often. But every time we get a result that we do not agree with, we 
cannot go back and change the law, at least we should not go back and 
try to change the whole process to address that.
  I want to direct my colleagues back to 1994 when my Republican 
colleagues came to the majority in this House and one of their primary 
platforms was that we believe in States' rights and we are going to 
dismantle the Federal Government's bureaucracy and return rights to the 
States, devolve government back to the local level where it is close to 
the people. Ever since they came in on that platform, they have been 
retreating from that very principle of protecting States' rights and 
devolving government back into local control.
  Now they have been doing it selectively, not uniformly; but I think 
the only principle that I can see running through every decision where 
they refuse to honor States' rights and local control is where their 
propertied constituents, their monied constituents, their corporate 
constituents, have a different interest and when that occurs they start 
to backtrack from this philosophical principle that they say they 
believe in.
  Now, if one listens carefully, one would think that the Federal 
courts have no jurisdiction over these cases, property cases, and 
property takings cases.
  Let me dissuade my colleagues of that notion: 28 United States Code 
section 1343, the section that is being amended by this proposed 
legislation, says, the district court shall have original jurisdiction 
of any civil action authorized by law to be commenced by any person to 
redress the deprivation under color of any State law, statute, 
ordinance, regulation, custom or usage of any right, privilege or 
immunity secured by the Constitution of the United States, or by any 
act of Congress providing for equal rights of citizens, or of all 
citizens within the jurisdiction of the United States.
  That means that Federal courts have jurisdiction in constitutional 
cases, and the gentleman from Florida (Mr. Canady) is correct that this 
right is being asserted under the fifth amendment to the Constitution.
  The fifth amendment to the Constitution says, 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.

                              {time}  1415

  Life, liberty, or property all in the same line, in the same section, 
and the 14th amendment applies that to the States. So the Federal 
courts have jurisdiction already. This is not about whether the Federal 
courts have jurisdiction in property matters; they already have it.
  The problem is that the courts, the Federal courts, have made a 
voluntary decision that we are not going to assert our jurisdiction in 
every single property case. Where a matter involves a local zoning 
ordinance, where a matter involves a municipal waste incinerator, where 
a matter involves granting a building permit to a liquor store or how 
close a factory can be to homes or a range of other local zoning and 
property issues, the Federal courts have said hey, that is a local 
decision and we want the local administrative bodies and courts to deal 
with this before we get it into our purview.
  Why do we want it? We want it because sometimes, these issues, quite 
often, most often, these issues also involve other State law and 
interests that the State courts and the local community can resolve 
better than the Federal courts. That is why my Republican colleagues 
came in in 1994 talking about returning local control to local 
communities and to the States. But the Federal courts have also said, 
we want these disputes to be ripe, and the record to be developed 
before the Federal courts will get involved.
  Mr. Chairman, this bill runs completely counter to local control and 
local jurisdiction.
  This bill would replace the common sense approach that the Federal 
courts have used which have empowered State and local officials with 
more resources and authority, as this Democratic administration and, I 
have thought, my Republican colleagues in the House supported. But the 
bill seeks to shift authority over these local matters from State and 
local officials to the Federal courts. It would do this by sharply 
limiting the discretion of Federal judges to abstain from deciding 
State law issues that have not been resolved previously by State courts 
and, secondly, the bill would deem a property rights challenge to State 
or local government action ripe for Federal court review, regardless of 
whether State and local officials have arrived at a final definitive 
position so that the Federal courts would be getting into the dispute 
before one even had any local disposition.
  Finally, in addition to being a gross invasion of States' rights and 
local rights, this bill, for property matters, sets up a whole new 
hierarchy and says, we are going to elevate property rights above every 
other civil right that the law recognizes. In other civil rights areas, 
the Federal courts also defer to the local governments to make 
decisions. We do not assert jurisdiction in every Federal issue. 
Otherwise, every case that talked about due process would end up in the 
Federal court. That is not the way it works, because we have a Federal 
form of government and it is our obligation to respect the State and 
local governments' rights to make decisions that are inherently State 
and local government decisions or at least should be, in the initial 
instance.
  Mr. Chairman, this bill is a bad idea; and we should reject it.
  Mr. Chairman, I reserve the balance of my time.
  Mr. CANADY of Florida. Mr. Chairman, may I inquire of the Chair 
concerning the amount of time remaining on both sides?
  The CHAIRMAN. The gentleman from Florida (Mr. Canady) has 22 minutes 
remaining, and the gentleman from North Carolina (Mr. Watt) has 21 
minutes remaining.
  Mr. CANADY of Florida. Mr. Chairman, I yield 5 minutes to the 
gentleman from California (Mr. Gary Miller).

[[Page H1091]]

  Mr. GARY MILLER of California. Mr. Chairman, the argument made by my 
distinguished colleague was eloquent. However, it has nothing to do 
with what is before us today. Great words were used. Decisions are 
results that we do not agree with, as if we are challenging what local 
government says. States' rights, local control, corporate constituents, 
as if we are up here just trying to benefit large corporations who own 
property. When a dispute is ripe, before it can go to Federal court, 
property rights challenges belong at the State and local level. We are 
going to elevate property rights above all other rights.
  My distinguished colleague needs to realize that 90 percent of all of 
the development programs that are presented to government are not from 
large corporations, not the Irvine Company, Ted Turner, or Kaufman & 
Broad, they are from small property owners who have a few investors. 
The problem is, most of the lawsuits are not against municipalities by 
the property owners, the lawsuits are against municipalities by no-
growth groups trying to overturn local decisions, and that is what we 
are trying to deal with.
  A property owner goes before a city council, a board of supervisors, 
whatever the local agency might be, and they ask for a reasonable 
decision on their property rights and what they can do with their 
property, and they are given that by local government. In essence, they 
have said, you can move forward with your project because we have given 
it due consideration. Then a lawsuit is imposed against the city or 
municipality to stop that by a no-growth group. The city at that point 
says to the property owner, it is up to you to defend the lawsuit. And 
then they have to go to superior court to do that. A decision is 
rendered, and then it goes to the appellate court to make a decision. 
That decision is rendered, and then it has to go to Federal court. 
Understand that these people are not the large corporations defending 
this lawsuit, these are small property owners who are trying to benefit 
from that property.
  Many of these individuals have received their property through 
inheritance, it has been in the family for years, or they buy a small 
piece of property with a few investors and they try to earn a profit on 
that property. What happens is, by the time they get through the 
approval process, it is likely they are going to be in a recession to 
begin with, but undoubtedly, by the time they get through the legal 
process, they will be in a recession and, at that point, they will have 
already lost their investors.
  What we are saying is, private property owners should have their day 
in court. They should not spend thousands and thousands of dollars 
going through a local process, only to have to go to court to be told 
by their attorney, understand, this is a process you are going to have 
to go to. If we win in superior court, it is going to be a challenge in 
the appellate court. When we win in the appellate court, we are going 
to go to Federal court.
  Individual property owners, as a rule, do not have the money to go 
through this process. What we are doing is placing the burden on people 
who do not have the resources to defend themselves. Yet, my colleagues 
on the other side of the aisle will continually try to placate us with 
the comment that we need to provide housing for people of low income, 
when the system is designed to go against those people.
  We are not saying that we want to overturn local control. We are not 
saying we want to overturn State control. We are saying that when local 
agencies have made a decision, whether it be a good decision or a bad 
decision, if the property owners feel they have been unfairly treated 
and their property rights have been taken from them, they should not 
have to spend years in State court, years in appellate court, only to 
be forced to go to Federal court.

  If we look at the majority of the lawsuits, it is not from the 
property owner against the municipality or city, it is from some 
outside no-growth group against the city for the decision they made.
  In California specifically, they are continually being sued for some 
sequel violation that might not be real at all, yet they are forced 
into court to prove that the lawsuit against them was not factually 
based. They are either then taken on a writ of mandamus in other States 
or in California, and they are saying you violated some zoning, some 
building or some procedural act on the level of the city and they are 
forced to go to court to defend it. That is ridiculous.
  The gentleman's argument is offensive to small property owners that 
this is just rich corporations or the argument that it is going to take 
control away from local government. That is not where the lawsuits are 
occurring, and the gentleman needs to check that out. Friend to friend, 
the gentleman is wrong. The lawsuits are from outside agencies against 
cities, based on the decision they made entitling a property owner to 
use their property. We are saying, that should not be allowed. That is 
wrong. The assumption that all of these property owners are huge 
corporations, check it out. Ninety percent are small people who have 
small pieces of property or farms and they want to use those farms.
  Now, some people in the Midwest will say, well, we are watching 
people use their farms today for development, and that is true. The 
problem is every time a farm is developed, people moved in who opposed 
the other farmers from using their property.
  Mr. WATT of North Carolina. Mr. Chairman, I yield 3 minutes to the 
gentleman from Michigan (Mr. Conyers).
  Mr. CONYERS. Mr. Chairman, I thank the manager of the bill for 
yielding me this time.
  I rise in opposition to this measure because we have a proposal on 
the floor today in the Congress that is specifically directed at our 
local elected officials. As a prominent lobbyist has uttered, ``This 
measure would be a hammer to the head of local zoning boards and 
community planning agencies.'' In doing that, we have had revealed to 
us the real effect of the bill, which will be to intimidate communities 
into approving ill-advised development plans out of fear that they will 
be hauled into Federal court if they do not. Because what we are doing 
is providing property developers and other corporations with special 
procedures created in H.R. 2372 that grant them expedited access to the 
Federal courts for property-taking claims exclusively.
  Now, if that is what my colleagues want to do, that is fine. I object 
to it, but I think that it would be a terrible misuse of an important 
part of our Federal law which was originally created ironically to deal 
with civil rights claims. As a result of any kind of proposal like the 
one before us, again in the Congress; this was up before in I think 
1997, we would, for example, allow a corporation which seeks an 
oversized commercial development and is dissatisfied with the initial 
land use decision by a small town, it could immediately threaten to 
bring suit in the Federal court against a town. The costs of litigating 
this issue in Federal court could overwhelm, if not bankrupt, thousands 
of small towns and counties around the country if that were to happen.
  So what we would allow under the incredible premises of this bill, 
this case could proceed even if there were insufficient facts available 
for the Federal court to make a reasoned takings decision. If there 
were important unresolved State legal issues, it would not matter.
  In essence, we are going to be telling the States that the Federal 
judiciary knows best when it comes to local land use decisions.
  Please, let us not be a part of such a giveaway here today in the 
House of Representatives.
  Mr. CANADY of Florida. Mr. Chairman, I yield 3 minutes to the 
gentleman from Alaska (Mr. Young).
  (Mr. YOUNG of Alaska asked and was given permission to revise and 
extend his remarks.)
  Mr. YOUNG of Alaska. Mr. Chairman, I rise today in support of H.R. 
2372, the Private Property Rights Implementation Act. I must say I just 
listened to the previous speaker and I have read this bill and I cannot 
find where it says what he says it does in that bill. It is the most 
amazing thing I have ever heard.

                              {time}  1430

  Mr. Chairman, I am not a lawyer, thank God for that, but I do not 
read it that way. What I am hearing, as a Committee on Resources 
chairman, frankly, is to help protect the fifth

[[Page H1092]]

amendment of the United States Constitution.
  The taking of private property, unfortunately, all too often the 
various governmental bureaucrats involved in land use decisions use 
their regulatory authority to take private property, and then blame 
other levels of government for their actions. I think maybe this is 
what the gentleman was speaking about. The Federal bureaucrats, through 
their efforts, will take private property and then blame someone else.
  As a result, I support H.R. 2372, because it will ensure that 
landowners, landowners, little landowners, yes, big landowners, but 
mostly little landowners, the largest percentage of takings by this 
government is from little landowners, will get a fair chance to have 
their cases heard in Federal court, no matter which government 
bureaucracy is involved.
  Mr. Chairman, H.R. 2372 will also ensure that land dispute cases are 
heard expeditiously in order to resolve these disputes very promptly. 
As a result of the expeditious court proceedings, taxpayers', as well 
as the private property owners', legal costs will be reduced. These 
prompt court proceedings will give even the poorest of our citizens the 
ability to defend their land.
  Finally, H.R. 2372 will level the playing field between private 
property owners and the government. Landowners who wish to protect 
their legal and civil rights will now be able to afford court 
proceedings, and the government will no longer be able to pressure 
landholders into taking their land.
  I want to stress this, that right now the bureaucrats take their 
time, slow it down, use undue pressure, and finally get the land away 
from the private property owners. Let us ensure that the smallest and 
the poorest landowners can have the same rights as the biggest 
corporations and the environmental groups.
  I urge support of H.R. 2372 and oppose any amendments to this 
legislation, because this is the Constitution. The basis of our society 
is private land, not government land. When we have private land, we 
have something to do with our government. When it is owned by the 
government, we have nothing to do with the government.
  I urge Members to pass this legislation.
  Mr. WATT of North Carolina. Mr. Chairman, I yield 2 minutes to the 
gentleman from New York (Mr. Boehlert), our Republican colleague.
  (Mr. BOEHLERT asked and was given permission to revise and extend his 
remarks.)
  Mr. BOEHLERT. Mr. Chairman, I rise in strong opposition to this bill. 
The detrimental effects of H.R. 2372 are likely to be felt by virtually 
every citizen in virtually every community in this country.
  Anywhere that citizens are trying to control growth, to limit 
traffic, or to preserve open space or conserve drinking water, this 
bill will have an adverse effect. Anywhere that citizens are trying to 
preserve the character of their neighborhoods by restricting 
pornography or alcohol or certain types of industry, this bill will 
have an adverse effect. Anywhere that citizens band together to try to 
do anything that any developer might oppose, this bill will have an 
adverse effect.
  That is because this bill disempowers citizens and their towns and 
cities and counties, and skews local zoning rules to give developers 
the upper hand. It removes the incentive to negotiate zoning disputes, 
replacing that incentive with the threat of Federal court review.
  Why is such a fundamental change in policy necessary? Is it because 
development is routinely being blocked? I think a quick tour of any 
congressional district in this country will prove that that is not the 
case. Homebuilding and other developments are booming in a booming 
economy. This bill is a vintage case of overreaching by a successful 
group that is upset because it does not win 100 percent of the time.
  Let us not take power away from citizens and localities. Let us not 
overturn the fundamental principles of Federalism. Let us not advance a 
bill that is opposed by municipalities and courts and religious groups 
and environmentalists and labor unions.
  Let us oppose H.R. 2372, and ensure that each community in this 
country retains the right to control its own destiny.
  Mr. CANADY of Florida. Mr. Chairman, I yield 3 minutes to the 
gentleman from California (Mr. Pombo).
  Mr. POMBO. Mr. Chairman, I thank the gentleman for yielding time to 
me.
  Mr. Chairman, here we go again. If this bill passes, all local zoning 
gets thrown out the window. Everything goes to hell in a handbasket.
  Well, I think it is time that maybe we talk a little bit about what 
the truth is. Why are we doing this? Currently they say that the 
developers, the local farmers, the small landowners, they have the 
ability to go to court if they want to challenge a local decision, and 
they do.
  According to a recent survey, judges avoided addressing the merits of 
Federal takings claims in over 94 percent of all takings cases 
litigated, 94 percent. So 94 percent of the people did not even get 
their claim heard because the judge, for one reason or another, decided 
not to judge on the merits of that case.
  So we are not talking about 100 percent of the time, we are not 
talking about a developer not winning 100 percent of the time. What we 
are talking about is 94 percent of the time the small family farmer, 
the small developer, the mom and pop guy, got thrown out of court and 
did not have access to their day in court.
  Another recent survey reveals that 83 percent of takings claims 
initially raised in the United States district courts from 1990 to 1998 
never reached the merits, and when they did reach the merits, it took 
property owners an average of 9.6 years to have an appellate court 
reach its determination, 9.6 years before the court would give them a 
final decision.
  How many small property owners, how many mom and pop development 
companies, how many small farmers and ranchers, can afford to pay 
attorneys for almost 10 years, hundreds of thousands of dollars? Mr. 
Chairman, hundreds of thousands of dollars.
  What ends up happening, and this is why most of these cases are never 
settled in court, is because the property is not worth what the 
attorneys want to go to court with.
  There is a certain poll-tested wisdom out here that says if you bring 
up open space and drinking water and all the environmental things we 
all love, that that is the key to this. If we throw in pornography and 
liquor licenses as well, we might pull over a few more people. But the 
truth of the matter is that what this bill tries to do is guarantee 
access for the small property owners, the individuals that are out 
there that cannot have access under the current rules.
  There is absolutely nothing wrong with allowing them into Federal 
court on a civil rights case to test their fifth amendment rights, nor 
shall private property be taken for public use without just 
compensation.
  What are they afraid of? Are they afraid they are going to tell them 
they cannot keep taking peoples' property? I think our Constitution 
guarantees that. The system does not allow them into court.
  Mr. WATT of North Carolina. Mr. Chairman, I yield myself 1 minute, 
just to make a clarification.
  Mr. Chairman, I would like to make sure that this study that keeps 
getting cited dealing with how many cases get delayed and disposed of, 
let us make sure that we understand that this study was done by the 
National Association of Home Builders, and what it really shows is that 
in many cases, the vast majority of the cases, in fact, 29 of the 33 
cases that they surveyed, the court dismissed the case because the 
claimant's lawyer refused to follow State procedures for seeking 
compensation before suing in the Federal court.
  That is entirely consistent with the process that is in place at this 
point, because the objective is to get people to start at the local 
level and resolve these disputes at the local level before they are 
ripe to go into Federal court. So this is just a myth that has been 
created.
  Mr. Chairman, I yield 3\1/2\ minutes to the gentleman from Oregon 
(Mr. Blumenauer).
  Mr. BLUMENAUER. I thank the gentleman for yielding me the time, Mr. 
Chairman.
  I have spent my entire public service career dealing with issues that 
promote livable communities. I know from

[[Page H1093]]

personal experience that, at times, local land use laws can be time-
consuming, expensive, and uncertain. Many times the development 
community draws the blame for things like sprawl and congestion when in 
fact they are abiding by outmoded local planning and transportation 
notions. Too often the development process becomes too political and 
painful.
  But it is absolutely false to suggest that somehow the blame for this 
is on the shoulders of local officials who are trying to protect the 
community. I am willing to work to improve the process. I cosponsored 
and voted for a nearly identical bill in the 105th Congress which I 
hoped would be the first step in trying to have a rational discussion 
about this, and have been working with the development interests and 
local government and the environmental community to reach common 
ground.
  I supported the bill, even though I made it clear at the time that 
the bill in that form would not and should not pass, but I thought it 
would be a beginning of an important discussion.
  But rather than use that as a springboard, what we have back here 
again today is the identical bill. I am disappointed that the 
legislation represents no modification, no conciliation, and is not a 
productive contribution to the reform effort. It faces a certain veto 
by the President if in fact it could be passed, which it will not.
  Occasional development hardships cannot justify short-circuiting the 
land use process against other homeowners, neighborhood associations, 
environmental groups, and local governments.
  In Oregon, we have an elaborate system of appeals dedicated to land 
use, heralded as one of the best in the Nation. Our Land Use Board of 
Appeals has been developed and refined over the years, and at the same 
time, the process has been supported by our voters three times in 
State-wide initiatives.
  It is entirely possible that if this misguided legislation would be 
passed in its present form, it would entirely circumvent our land use 
planning process.
  The bill is further flawed because it is sending land use disputes to 
our already overtaxed Federal judiciary, with absolutely no guarantee 
that they can be resolved any faster. In fact, we have received 
indication from the Federal judiciary that they see this as a burden to 
their already strained system.
  The only way this bill would produce a speedy resolution and reduce 
developer expenses is if small cities and counties stopped trying to 
enforce their land use laws. That is in fact what would happen, in many 
cases. This is counter to the rising tide around the country where 
people want more protection against unplanned growth, bad environmental 
decisions, and transportation problems.
  Smart growth is not no growth. I am committed to working with the 
advocates of smart growth and livable communities and the development 
community to develop approaches that solve these problems. We can 
provide a balanced system of adjudication in land use disputes. The 
problem in some States like California is that they do not have a 
system. It is a series of patchworks that do not work.
  Mr. Chairman, I would suggest that we support State-wide frameworks 
that are less political, more predictable, less costly, that will 
achieve timely administrative process and judicial review without 
leading to a race to the courts to bully local governments into 
dropping their rights.
  Rather than evolving the debate, this bill before us is having a 
polarizing effect. I urge a no vote. I urge my colleagues to work with 
us to actually solve the problem for more livable communities.
  Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I 
may consume.
  Mr. Chairman, I am disappointed that the gentleman from Oregon has 
changed his mind about the bill. I would point out there are some 
changes in the bill which are actually designed to encourage going 
through more at the local level. As the gentleman was saying, that is 
in the bill. He may not be aware of it.
  Under the bill as it is now formulated, before going to Federal 
court, after an initial application is rejected by the local 
government, the landowners must appeal to the local planning 
commission, must make application for a waiver to the zoning board, and 
must also appeal to the local board of elected officials. That is quite 
a bit at the local level. I think it is appropriate that that be done 
before a lawsuit is instituted in Federal court.
  But if, after going through that process at the local level, the 
landowner receives a decision which results in a taking of the 
landowner's land without compensation, I believe that the landowner 
should be able to go to Federal court.
  For Members who are wondering what this fight is all about, let me 
boil it down to the real crux of the matter, here. The issue is whether 
landowners should have to exhaust their State judicial remedies, would 
have to go through State court, before they go to Federal court. It is 
not a matter of whether they are going to go to court or not. It is a 
matter of whether, if they are in this situation, they are going to go 
to State court rather than Federal court.

                              {time}  1445

  Under the rules as they now are, they are forced to go to State court 
to pursue their Federal constitutional claims before they can ever have 
an opportunity to get into Federal court unless they end up being 
barred through one rule or another. That is what this is about.
  It is important that the Members step back from all the rhetoric that 
is flying around this and understand that that is what is at issue. I 
do not believe that it should be controversial that individuals whose 
Federal constitutional rights have been vindicated should have their 
day in Federal court. If the Federal courts exist for anything, it 
should be to protect Federal constitutional rights.
  Now, arguments have been made that, oh, well, we are elevating 
property rights above other constitutional rights by passing this bill. 
That is simply wrong. The truth is that other civil rights receive 
superior treatment under the rules as they are now structured in the 
system. We are trying to bring property rights up to something close to 
parity with the way other rights are treated.
  Now, the truth is also the general rule for civil rights claims that 
are brought pursuant to the law that the Congress passed, section 1983, 
where citizens and individuals are allowed to challenge local 
government actions that infringe constitutional rights, the rule is you 
do not have to exhaust either your State administrative or judicial 
remedies. Now we are actually requiring that you go through 
administrative remedies. But we are saying you should not have to 
exhaust your State remedies. So we are still not bringing it up to 
parity with the way the other rights are treated.
  I know this is being denied over and over again. But that is, those 
are the facts. That is what the law is.
  The Supreme Court in the landmark case of Monroe v. Pape back in 1961 
said, the Federal remedy under section 1983, which is the section that 
we are dealing with in this statute and under which civil rights 
actions are brought against local governments, is supplementary to the 
State remedy; and the latter need not be first sought and refused 
before the Federal one is invoked.
  They reiterated that in Ellis v. Dyson where they said exhaustion of 
State and judicial or administrative remedies was ruled not to be 
necessary, for we have long held that an action under section 1983 is 
free of that requirement.
  Board of Regents, the State of New York v. Tomanio, in 1980, they 
said that this court has not interpreted section 1983 to require a 
litigant to pursue State judicial remedies prior to commencing an 
action under this section.
  That is the rule with respect to civil rights claims in general, but 
they have different rules when it comes to property rights. I would 
suggest that that is what the Members of the House should focus on. 
That is also problem that we are trying to address here.
  Let me just point out that I think the talk about property rights and 
to treat them as though they are some kind of second class right is 
simply not fair. I would ask the Members of the House to consider what 
the Supreme Court said back in 1972 in a case called

[[Page H1094]]

Lynch v. Household Finance Corporation. This is an opinion joined by 
Justices Brennan and Marshall. The Supreme Court said,

       The dichotomy between personal liberties and property 
     rights is a false one. Property does not have rights. People 
     have rights. The right to enjoy property without unlawful 
     deprivation, no less than the right to speak or the right to 
     travel, is in truth a personal right. In fact, a fundamental 
     interdependence exists between the personal right to liberty 
     and the personal right in property. Neither could have 
     meaning without the other.

  I would submit to the Members of the House that, if we are serious 
about protecting these rights which are so fundamental to our way of 
life and our system of government, we will remove the barriers that 
have been created to prevent individuals whose property rights have 
been infringed from having access, meaning full access to their day in 
Federal court.
  Mr. Chairman, I reserve the balance of my time.
  Mr. WATT of North Carolina. Mr. Chairman, I yield myself 30 seconds 
just to respond to the gentleman and thank him for his eloquent 
endorsement of the amendment that I will be offering. Because if he, in 
fact, believes that these are personal rights and that property rights 
should be on the exact same footing, our amendment would place them on 
the exact same footing with other civil rights.
  I expect that the gentleman will be supporting my amendment and 
making his eloquent statement in support of it again. I appreciate the 
gentleman agreeing to do that.
  Mr. Chairman, I yield 2 minutes to the gentleman from Maine (Mr. 
Allen).
  Mr. ALLEN. Mr. Chairman, I thank the gentleman from North Carolina 
for yielding me this time.
  Mr. Chairman, I rise in strong opposition to this bill. The bill's 
title is not accurate. Despite all the talk on the other side about 
small property owners, the bill should be called the fast track for 
developers act. This bill allows for any case involving a takings claim 
to be brought into Federal court, bypassing State and local processes.
  As an attorney practicing law for 19 years, it was my experience that 
most small-land owners do not rush to get into Federal court, but many 
large developers do. It was also my experience that takings claims, 
constitutional claims, even though frivolous, even though 
extraordinarily weak, will be tacked on it a great many local land 
institutes. That is why it seems to me that the passage of this bill 
will allow developers to put excessive pressure on local zoning boards 
and councils.
  I speak with some experience. I was a city councilor in Portland for 
6 years and the mayor of the city. In Portland, we have appropriate and 
sound local zoning procedures and practices. In this House, we should 
help local governments plan for smart growth and not tie their hands by 
federalizing every local land dispute in which a property owner claims 
his property is being taken without compensation.
  My Republican colleagues argue that local school boards know better 
than Washington, and I agree. But when it comes to land use, they say 
that Federal courts, not local zoning boards, are the best way to 
resolve local land disputes.
  Mr. Chairman, this bill is opposed by every organization, almost 
every organization representing State, county, and municipal 
governments. It is opposed by State Attorneys General, State Chief 
Justices, and the U.S. Judicial Conference. This bill is a serious 
affront to the principle of federalism.
  I urge a ``no'' vote on this so-called takings bill that diminishes 
local control and empowers large developers.
  Mr. CANADY of Florida. Mr. Chairman, I yield 2 minutes to the 
gentleman from California (Mr. Dooley).
  Mr. DOOLEY of California. Mr. Chairman, I rise today to express my 
support for H.R. 2372, the Private Property Rights Implementation Act. 
The bill takes a new, more modest approach to the issue of property 
rights and has received widespread bipartisan support.
  The legislation helps property owners by clearing some of the legal 
and procedural hurdles that make it both excessively time consuming and 
expensive to assert their claims. The bill proposes to do nothing 
except clarify the jurisdiction of Federal courts to hear and determine 
issues of Federal constitutional law.
  H.R. 2372 is vastly different from previous property right bills. It 
does not attempt to define for a court when a taking has occurred, nor 
does it change or weaken any environmental law.
  There has been some controversy generated surrounding this bill. Most 
of the criticism of this legislation is based upon the assumption that 
the bill cuts local government out of the decisionmaking process when 
it comes to land use decisions. But nothing could be further from the 
truth.
  The truth is that H.R. 2372 applies only to Federal claims based on 
the fifth and 14th amendments that are filed in Federal court. The bill 
creates no cause of action against local governments. H.R. 2372 is only 
a procedural bill clarifying the rules so a decision can be reached 
faster on the facts of the case instead of wasting taxpayer money on 
jurisdictional questions.
  Local governments will have no new limits on their ability to zone or 
regulate land use. Local agencies will get at least two, maybe three 
chances to resolve a land use decision locally before their decision 
will be defined as final, once on the original application, once on 
appeal, and yet again on review by an elected body.
  H.R. 2372 does not provide a ticket to Federal court. Individuals 
already have a right to go to Federal court. The bill simply provides 
an objective definition of when enough is enough, so that both parties 
in a land use dispute can participate in meaningful negotiations.
  I believe H.R. 2372 represents a moderate approach that Members can 
and should support.
  Mr. WATT of North Carolina. Mr. Chairman, I yield 3 additional 
minutes to the gentleman from New York (Mr. Boehlert).
  (Mr. BOEHLERT asked and was given permission to revise and extend his 
remarks.)
  Mr. BOEHLERT. Mr. Chairman, let me give my colleagues some real-life 
examples of what this is all about based upon some recent court 
decisions.
  In Recreational Developments of Phoenix, Incorporated v. The City of 
Phoenix, the land owners brought several takings challenges to a 
municipal ordinance that prohibited live sex clubs. The Federal court 
dismissed the takings challenge on ripeness grounds because the land 
owners had not sought compensation in State court. If this bill had 
been in effect, the City would have been forced to endure lengthy 
Federal court taking litigation to defend this ordinance, prohibiting 
live sex clubs.
  In Maynard v. The City of Tupelo, in Mississippi, the State court 
rejected a taking challenge to a city ordinance that bans possession of 
open containers of alcoholic beverages or their consumption between 
midnight and 7 a.m. in restaurants. If this bill had been in effect, 
the claimant could have forced Tupelo to endure lengthy, expensive 
Federal court litigation to reach the same result.
  In Guildford County Department of Emergency Services v. Seaboard 
Chemical Corporation, the State court rejected a takings challenge by a 
chemical company to a permit denial for a hazardous waste facility for 
health and safety reasons. If this bill had been in effect, that 
company could have subjected the county to expensive and lengthy 
Federal court litigation.
  In Colorado Dog Fanciers v. The City of Denver, the State court 
rejected a takings challenge to an ordinance that bans possession of 
pit bulls, but allowed existing owners to obtain licenses. If this bill 
had been in effect, the claimants could have been challenged, and this 
sensible public policy measure would have endured expensive, Federal 
court litigation.
  Zoning matters are local in nature. We should not federalize them.
  Mr. CANADY of Florida. Mr. Chairman, may I inquire concerning the 
amount of time remaining on both sides.
  The CHAIRMAN. The gentleman from Florida (Mr. Canady) has 3\1/2\ 
minutes remaining, and the gentleman from North Carolina (Mr. Watt) has 
6\1/2\ minutes remaining.
  Mr. WATT of North Carolina. Mr. Chairman, I yield 1 additional minute 
to the gentleman from Oregon (Mr. Blumenauer).
  Mr. BLUMENAUER. Mr. Chairman, I appreciate the gentleman from North 
Carolina yielding me this time.

[[Page H1095]]

  Mr. Chairman, we had an assertion by the gentleman from Florida (Mr. 
Canady) about the procedures that would be followed. The fact is, under 
the bill that has been proposed, there is an exemption. If the claimant 
feels that it would be futile to pursue this claim, there is an 
additional problem. They talk a lot about the small individual property 
owners, but the fact is the vast majority of jurisdictions in this 
country are small governments that cannot afford to be involved with 
this.
  So my colleagues have taken a theoretical problem for a few problems 
of small owners action, and they have substituted a massive burden on 
the part of many small governments who simply are not going to be able 
to undertake a well-financed aggressive development interest that seeks 
to move the other direction. I think it just simply reverses that 
presumption.
  Mr. CANADY of Florida. Mr. Chairman, I yield 2 minutes to the 
gentleman from California (Mr. Doolittle).
  (Mr. DOOLITTLE asked and was given permission to revise and extend 
his remarks.)

                              {time}  1500

  Mr. DOOLITTLE. Mr. Chairman, this is an important bill. I know the 
other side is trying to portray this as helping big developers, but the 
fact of the matter is, this bill is designed to help the little guy and 
anybody else, including a big developer, who seeks to assert the 
constitutional right to receive just compensation for the taking of his 
or her property. That is just something that is guaranteed by the U.S. 
Constitution and the fifth amendment. And yet, because of a network of 
procedures developed over the years, the effect of those procedures has 
been to make this amendment somehow secondary to some of the others.
  We all know the reality. I mean a government is fighting with 
taxpayer dollars; and they have, usually, a vast amount to draw upon. 
They already have attorneys on staff, and they have firms on contract 
to wage these battles with taxpayer dollars. When the little guy is 
seeking to defend his or her constitutional right, and it takes on the 
average of 9\1/2\ years to get through the Federal Court system, that 
is bad enough already, but then it takes a number of years to get into 
the Federal Court system.
  This bill, amongst other things, simply allows people to at least 
enter the Federal Court system. If anything, the bill does not go far 
enough because we have still got that long, drawn-out time when you, an 
individual, is paying lawyers at $300 or $400 an hour to litigate their 
claims. It is very, very difficult to reach the relief that they need. 
This bill makes an important step in that direction. It simply seeks to 
place the fifth amendment on an equal level to the fourth amendment or 
the first amendment, where they are not required to go first through 
the whole State process before they can get into Federal Court.
  Mr. Chairman, I strongly urge an ``aye'' vote on this legislation.
  Mr. WATT of North Carolina. Mr. Chairman, I yield myself 2 minutes.
  This is the third or fourth time that somebody has come to the floor 
and talked about it taking 9\1/2\ years to get through the process. So 
let me be clear on how this 9\1/2\ year figure was derived. It was also 
the result of a study done by the National Association of Home 
Builders.
  The problem is that in arriving at the study, they used only 14 
Federal appellate court cases over a 9-year period, the period from 
1990 to 1998. And, of course, if we take those 14 cases, anything can 
happen in a small number of cases, but that does not mean that we have 
got a massive problem. The bulk of the cases were being resolved before 
local zoning and planning commissions without any litigation, but those 
cases were just disregarded. The study ignored hundreds of takings 
cases litigated in State court each year, which comprised the 
overwhelming bulk of takings lawsuits. In those cases the States were 
giving fair and adequate remedies to the people who were coming into 
the State courts, which is exactly the way the process is supposed to 
work.
  So, ironically, we are in here talking about let us put everything in 
Federal Court, when the 14 cases that they used to come up with this 
9\1/2\ year figure are the ones that ended up in Federal Court. It was 
the State court and the local zoning boards that were making quick, 
efficient decisions. And now I guess my colleagues would have us bring 
everything into the courts so everything could take 9\1/2\ years 
because there is a massive backlog of cases in the Federal Court 
system.
  Mr. Chairman, let me just make it clear that, again, the U.S. 
Constitution allows property takings cases to come in to the Federal 
Court. If there is a taking of property, that is a Federal right. The 
problem is, as in all other constitutional rights where property is 
deprived or liberty is deprived, or any other U.S. Constitutional case, 
if there is an opportunity to resolve the matter in the State courts, 
the Federal courts simply defer and say the State court should resolve 
it because of, interestingly enough, the very principle that the 
Republicans have told us over the years they stand for: government 
should be closer to the people and decisions should be made closer to 
the people. So we are going to defer, says the Federal Court, to local 
and State courts to make decisions that impact the rights of people, 
even if they involve Federal constitutional rights.
  So this is not about whether an individual can get into Federal 
Court. It is about when someone can get into Federal Court. I would 
submit to my colleagues that over all of these years we have been 
saying to the State courts that we respect their ability to resolve 
cases that involve State and Federal law, and we should continue to 
honor that. To do otherwise would be absolutely contrary to every 
principle that my colleagues on the other side have said over this 
period of time that they have been in the majority that they stand for.
  The only reason we are making it an exception here is because some 
developers, some moneyed interests, some propertied interests have been 
inconvenienced, and they happen to be constituents who normally support 
the other side. That is what this is really all about. There is no 
reason to do this based on any Federalism principle, and that is the 
principles we ought to be applying in this context.
  Mr. Chairman, I would discourage my colleagues from turning that 
whole system upside down, as my colleagues who say they believe in 
States' rights would have us do.
  Mr. Chairman, I yield back the balance of my time.
  Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I 
may consume.
  Mr. Chairman, I think it is unfortunate that today in this debate we 
are hearing attacks on the motivation of those who are supporting this 
legislation. This legislation has been introduced because there is a 
real problem in the administration of justice, a problem that affects 
property owners, small and large, throughout this country, property 
owners whose property is taken by an action of government, and property 
owners who are denied meaningful access to the Federal Court. We are 
trying to correct that.
  Now, my good friend, the gentleman from New York (Mr. Boehlert), went 
through a list of cases that were not litigated in Federal Court but 
were litigated in State court where the plaintiffs lost. It sounds like 
to me that those plaintiffs should have lost. And I would submit to the 
gentleman that they would have lost in Federal Court as well. So I do 
not know what that list of cases proves.
  The Federal courts, in my experience, know how to dismiss cases. They 
know how to get rid of cases on summary judgment. They also know how, 
in certain circumstances, to award prevailing party attorneys' fees 
against the party who brings a frivolous claim. And that happens to 
developers and others who sue local governments when they do not have a 
basis for their claim. Those attorneys' fees are available and some 
courts will award them. So I think the Members need to keep that 
reality in mind.
  And let us just step back from this and look at the fact that the 
truth is that, under the rules as they now exist, property rights 
claims are subjected to second-class treatment. That is the truth. We 
need to change it.
  Mr. POMEROY. Mr. Chairman, I join the National Association of 
Counties, the U.S. Conference of Mayors, the Council of State

[[Page H1096]]

Governments, and the National Association of Towns and Townships, and 
the National Conference of State Legislatures in opposing H.R. 2372. 
This legislation severely undercuts local decision making authority 
regarding land use matters and would burden small towns and cities 
across America with the huge burdens of higher legal fees to protect 
themselves from lawsuits in federal court.
  H.R. 2372 supersedes local authority by removing to federal court 
local disputes concerning land use regulation. Under our federal system 
of government, land use matters have historically been the 
responsibility of State and local governments. Local communities, 
through locally-elected officials, work diligently to develop land use 
plans to best serve the needs of their citizens.
  As a Representative of one of the most rural districts in the House--
the entire state of North Dakota--I am also concerned about the 
financial impact of smaller cities and towns financially. Diane Shea, 
Associate Legislative Director of the National Association of Counties, 
in testimony before the House Judiciary Committee, discussed how the 
impact of this legislation would be especially severe on smaller cities 
and towns in the United States. Ms. Shea testified that 97 percent of 
the cities and towns in America have population under 10,000, and 52 
percent have population less than 1,000. Similarly, out of 3,066 
counties, 24 percent have population less than 10,000. She stated, 
``Virtually without exception, counties, cities, and towns with 
populations under 10,000 have no full time legal staff. These small 
communities are forced to hire outside legal counsel each time they are 
sued, imposing large and unexpected burdens on small governmental 
budgets.''
  Proponents of H.R. 2372 believe this legislation is only 
``procedural'' and will better allow landowners to deal with State and 
local governments when citizens' private property are subject to a 
regulatory taking. In my opinion, there are better ways to protect 
citizens private property rather than undermining the principal of 
local control over land use matters and placing massive legal costs on 
over-burdened local governments.
  I urge my colleagues to follow the advice of Judge Frank Easterbrook 
of the 7th Circuit Court of Appeals who wrote in a 1994 opinion, 
``Federal courts are not boards of zoning appeals'' and oppose H.R. 
2372.
  Mr. CALVERT. Mr. Chairman, I rise today in support of H.R. 2372, the 
Private Property Rights Implementation Act. As a Member representing 
California, as well as a member of the Western Caucus, I am acutely 
aware of the need for legislation to protect private property owners.
  H.R. 2372 addresses unequal and unfair treatment of property right 
claims. It simply allows property owners, injured by Government action 
and excessive regulation, equitable and simplified access to the 
federal courts. Currently, 83 percent of Federal property claims are 
thrown out of the court before their merits can be debated. With a 
statistic like that, no one can argue that the current process is fair.
  It also levels the playing field for small and middle class property 
owners. Unfairly, private citizens find their pocket books 
disportionately strained by the cost of defending their fifth amendment 
property rights.
  No matter what reason the Government has for restricting private 
property use, and there are some legitimate reasons, there is no excuse 
for denying landowners their day in court.
  Mr. Chairman, I urge my colleagues to oppose all amendments which 
threaten to gut H.R. 2372, especially Mr. Boehlert's amendment. This 
amendment would eliminate the bill's provision which allows landowners 
to take their appeals to federal court.
  This is not an issue about taking power away from the States and 
localities, it is about the rights of property owners to have their 
claims considered fairly and in a timely manner.
  Mr. Chairman, I urge my colleagues to support H.R. 2372. To support 
the Fifth Amendment right of all American citizens.
  Mr. SMITH of Texas. Mr. Chairman, I rise in support of H.R. 2372, the 
Private Property Rights Implementation Act. This legislation secures a 
basic right of all Americans: protection against government 
confiscation of homes, farms, and businesses.
  One of our most basic rights is contained in the Constitution's Fifth 
Amendment. It is the right of all citizens to acquire, possess, and 
dispose of private property.
  That constitutional right is now threatened by regulations imposed by 
government officials. The Government is able to confiscate the property 
of workers, farmers, and families without providing fair compensation.
  H.R. 2372 will change that.
  Mr. Chairman, I urge my colleagues to support this bill.
  Mr. HYDE. Mr. Chairman, property rights are human rights just like 
any other civil right, and citizens whose federal property rights have 
been violated should have the same meaningful access to federal courts 
as those who suffer violations of other constitutional rights. The 14th 
Amendment provides that no person shall be deprived of life, liberty 
and property. Those are the big three. Property rights are not somehow 
inferior to other rights.
  In Lynch v. Household Finance Corporation, 405 U.S. 538, 552 (1972), 
a woman's savings account was garnished under state law for alleged 
nonpayment of a loan, and she received no notice and no chance to be 
heard. She sued in federal court, but the court dismissed her suit, 
ruling that only personal rights merited a judicial hearing, not 
property rights. The Supreme Court disagreed. In an opinion joined by 
Justices Brennan and Marshall, the Supreme Court held that her due 
process rights were violated, and that ``the dichotomy between personal 
liberties and property rights is a false one. Property does not have 
rights. People have rights. The right to enjoy property without 
unlawful deprivation, no less than the right to speak or the right to 
travel, is in truth a `personal' right * * * In fact, a fundamental 
interdependence exists between the personal right to liberty and the 
personal right in property. Neither could have meaning without the 
other.'' Id. at 552.
  I urge members to vote in favor of H.R. 2372.
  Mr. UDALL of Colorado. Mr. Chairman, Colorado is one of the fastest-
growing States in the union, and we have our share of contentious land-
use disputes--in fact, sometimes it seems like we may have more than 
our share.
  I believe that the Federal Government has a role in helping our 
communities to respond to the problems that come with that rapid 
growth. But I don't think the help that's needed is greater involvement 
of the Federal courts in more and more local land-use decisions.
  So, I cannot support this bill.
  I do not think the bill is needed. The vast majority of land-use 
disputes, including claims that local regulations or decisions amount 
to a ``taking'' of property, are resolved at the local or State level 
without significant delay. There is no need to short-circuit the 
decisionmaking process under local and State law. There is no need to 
bypass our State courts.
  I also don't think the bill is sound policy. I am very concerned that 
it would severely tilt the field in favor of one interest, developers, 
and make it even harder for our communities to meet the challenges of 
growth and sprawl. It would saddle taxpayers of our towns, cities, and 
counties with the costs of expensive Federal litigation.
  It's also not good for our Federal courts. According to the Judicial 
Conference of the United States--the body that speaks for our Federal 
judges--it ``may adversely affect the administration of justice'' and 
``contribute to existing backlogs in some judicial districts.'' That 
could be a serious problem in Colorado and other States where there are 
or will be judicial vacancies.
  Finally, as a nonlawyer who takes very seriously the oath we all have 
taken to support the Constitution, I have listened carefully to the 
views of the many lawyers--including distinguished member of the 
Judiciary Committee--who have concluded that the bill is likely 
unconstitutional. Even if I thought the bill was otherwise desirable, 
that would make me hesitate. But, as I've said, the bill has other 
serious shortcomings--and the constitutional issues that have been 
raised mean that enacting this bill would inevitably lead to even more 
protracted and expensive litigation that would go all the way to the 
Supreme Court. However the Court might finally rule, that additional 
litigation is not something that I think is necessary or that Congress 
should encourage. So, again, I cannot vote for this bill.
  I am submitting a letter from the mayor of the city of Boulder, CO, 
in opposition to H.R. 2372.
                                                  City of Boulder,


                                          City Council Office,

                                   Boulder, CO, September 7, 1999.
     Re Opposition to takings legislation (H.R. 2372).

      Hon. Mark Udall,
     House of Representatives, Cannon House Office Building, 
         Washington, DC.
       Dear Congressman Udall: I am writing on behalf of the City 
     of Boulder to strongly urge your opposition of a federal 
     ``takings'' bill that is aimed at local governments. Rep. 
     Charles Canady (R-FL) recently re-introduced this bill as 
     H.R. 2372, the Private Property Rights Implementation Act of 
     1999. H.R. 2372 is virtually identical to takings legislation 
     considered during the last Congress (H.R. 1534), which was 
     sponsored by Rep. Elton Gallegly (R-CA).
       Specifically, H.R. 2372 would allow developers to 
     circumvent local zoning appeals mechanisms, bypass state 
     courts, and sue towns, cities and counties for alleged 
     takings directly in federal court. The bill's approach 
     contradicts Supreme Court rulings that federal courts cannot 
     decide if a local government has taken property without just 
     compensation until claimants explore allowable alternative 
     uses of the property and until they ask for and are denied 
     just compensation in state court.
       The Supreme Court's May 24, 1999, City of Monterey v. Del 
     Monte Dunes decision makes

[[Page H1097]]

     it clear that H.R. 2372's attempt to allow takings claims 
     against localities to bypass state courts is 
     unconstitutional. The Court held that because the Fifth 
     Amendment only bars takings without just compensation, there 
     is ``no constitutional injury'' where state court 
     compensation remedies are available. As the Court noted, 
     these state court remedies are now available in every state. 
     Thus, the nature of the constitutional right requires that a 
     property owner utilize state judicial or other procedures for 
     obtaining compensation before suing a locality in federal 
     court.
       Unfortunately, many Members of the last Congress co-
     sponsored the virtually identical H.R. 1534 without a full 
     appreciation of either what it would do or the overwhelming 
     opposition it would face from state and local governments, 
     the courts and others. This was made obvious when 9 
     Republican and 4 Democratic co-sponsors voted against their 
     own bill when the House approved H.R. 1534 on October 22, 
     1997. A 52-42 Senate cloture vote failed to receive the 60 
     votes necessary to end a bipartisan filibuster against 
     consideration of the Senate companion bill, S. 2771.
       In a July 10, 1998 letter to all Senators, the National 
     Governors Association, National Association of Counties, 
     National Conference of State Legislatures, U.S. Conference of 
     Mayors and National League of Cities opposed S. 2271 because 
     it would give ``large-scale developers . . . a `club' to 
     intimidate local officials who are charged with acting in the 
     best interests of the community as a whole.'' Threats of 
     premature, expensive federal court lawsuits would pressure 
     local officials to approve projects that would harm the 
     property, health, safety and environment of neighbors.
       In the last Congress, this bill was strongly opposed by 
     virtually every membership organization representing state 
     and local government, including the International Municipal 
     Lawyers Association, and National Association of Towns and 
     Townships, as well as 41 State Attorneys General. Opposition 
     included both the Conference of Chief Justices on behalf of 
     the state courts, and the Judicial Conference of the United 
     States, chaired by Chief Justice Rehnquist, on behalf of the 
     federal courts. I would have faced a Presidential veto if 
     passed in Congress. In addition, the legislation was opposed 
     by a broad array of environmental groups, including the 
     National Wildlife Federation, League of Conservation Voters, 
     Alliance for Justice, Sierra Club, Center for Marine 
     Conservation, Environmental Defense Fund, National Audubon 
     Society, National Trust for Historic Preservation, Scenic 
     America, Natural Resources Defense Council, and Wilderness 
     Society.
       H.R. 2372 literally would convert local zoning and other 
     land use disputes into federal cases. The result would 
     undermine basic protections for private property, health, 
     safety and the environment. Congress has repeatedly rejected 
     bills that would radically alter the constitutional standards 
     or judicial procedures for determining when a government 
     action results in a taking of private property that requires 
     payment of just compensation. In order to protect everyone's 
     private property and the environment, I urge you to oppose 
     this and other takings bills.
       The City of Boulder's experience with takings legislation 
     designed to oust the planning board of its ability to conduct 
     Boulder's major site review process on a 500-home development 
     is ample demonstration of the folly of this bill. As it was, 
     the case was dismissed, and the dismissal was affirmed by the 
     Tenth Circuit. Under this bill, Boulder would have faced a 
     takings case in the federal courts, before the Planning Board 
     could even act on the development application.
       Thank you for your consideration. If you have any 
     questions, please have your staff contact Joseph de Raismes, 
     City Attorney, at (303) 441-3020.
           Sincerely,
                                                  William R. Toor,
                                                            Mayor.
  The CHAIRMAN. All time for general debate has expired.
  Pursuant to the rule, the committee amendment in the nature of a 
substitute printed in the bill shall be considered as an original bill 
for the purpose of amendment under the 5-minute rule and shall be 
considered read.
  The text of the committee amendment in the nature of a substitute is 
as follows:

                               H.R. 2372

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Private Property Rights 
     Implementation Act of 2000''.

     SEC. 2. JURISDICTION IN CIVIL RIGHTS CASES.

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

     SEC. 3. UNITED STATES AS DEFENDANT.

       Section 1346 of title 28, United States Code, is amended by 
     adding at the end the following:
       ``(h)(1) Any claim brought under subsection (a) that is 
     founded upon a property right or privilege secured by the 
     Constitution, but was allegedly infringed or taken by the 
     United States, shall be ripe for adjudication upon a final 
     decision rendered by the United States, that causes actual 
     and concrete injury to the party seeking redress.
       ``(2) For purposes of this subsection, a final decision 
     exists if--
       ``(A) the United States makes a definitive decision, as 
     defined in subparagraph (B), regarding the extent of 
     permissible uses on the property that has been allegedly 
     infringed or taken; and
       ``(B) one meaningful application, as defined by applicable 
     law, to use the property has been submitted but has been 
     disapproved, and the party seeking redress has applied for 
     one appeal or waiver which has been disapproved, in a case in 
     which the applicable law of the United States provides a 
     mechanism for appeal to or waiver by an administrative 
     agency.
     The party seeking redress shall not be required to apply for 
     an appeal or waiver described in subparagraph (B) if no such 
     appeal or waiver is available, if it cannot provide the 
     relief requested, or if application or reapplication to use 
     the property would be futile.
       ``(3) For purposes of paragraph (2), the United States' 
     failure to act within a reasonable time on any application, 
     appeal, or waiver shall constitute a disapproval.
       ``(4) Nothing in this subsection alters the substantive law 
     of takings of property, including the burden of proof borne 
     by the plaintiff.''.

[[Page H1098]]

     SEC. 4. JURISDICTION OF COURT OF FEDERAL CLAIMS.

       Section 1491(a) of title 28, United States Code, is amended 
     by adding at the end the following:
       ``(3) Any claim brought under this subsection founded upon 
     a property right or privilege secured by the Constitution, 
     but allegedly infringed or taken by the United States, shall 
     be ripe for adjudication upon a final decision rendered by 
     the United States, that causes actual and concrete injury to 
     the party seeking redress. For purposes of this paragraph, a 
     final decision exists if--
       ``(A) the United States makes a definitive decision, as 
     described in subparagraph (B), regarding the extent of 
     permissible uses on the property that has been allegedly 
     infringed or taken; and
       ``(B) one meaningful application, as defined by applicable 
     law, to use the property has been submitted but has been 
     disapproved, and the party seeking redress has applied for 
     one appeal or waiver which has been disapproved, in a case in 
     which the applicable law of the United States provides a 
     mechanism for appeal or waiver.
     The party seeking redress shall not be required to apply for 
     an appeal or waiver described in subparagraph (B) if no such 
     appeal or waiver is available, if it cannot provide the 
     relief requested, or if application or reapplication to use 
     the property would be futile. For purposes of subparagraph 
     (B), the United States' failure to act within a reasonable 
     time on any application, appeal, or waiver shall constitute a 
     disapproval. Nothing in this paragraph alters the substantive 
     law of takings of property, including the burden of proof 
     borne by the plaintiff.''.

     SEC. 5. DUTY OF NOTICE TO OWNERS.

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

     SEC. 6. EFFECTIVE DATE.

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

  The CHAIRMAN. No amendment to that amendment is in order except those 
printed in House Report 106-525. Each amendment may be offered only in 
the order printed in the report, by a Member designated in the report, 
shall be considered read, shall be debatable for the time specified in 
the report, equally divided and controlled by the proponent and an 
opponent, shall not be subject to amendment, and shall not subject to a 
demand for division of the question.
  The Chairman of the Committee of the Whole may postpone a request for 
a recorded vote on any amendment and may reduce to a minimum of 5 
minutes the time for voting on any postponed question that immediately 
follows another vote, provided the time for voting on the first 
question shall be a minimum of 15 minutes.
  It is now in order to consider amendment no. 1 printed in House 
Report 106-525.


         Amendment No. 1 Offered by Mr. Watt of North Carolina

  Mr. WATT of North Carolina. Mr. Chairman, I offer an amendment that 
has been made in order under the rule.
  The CHAIRMAN. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Amendment No. 1 offered by Mr. Watt of North Carolina:
       Page 3, beginning on line 8, strike ``in an action in which 
     the operative facts concern the uses of real property''.
       Page 3, beginning on line 16, strike ``in which the 
     operative facts concern the uses of real property and''.
       Page 4, line 4, strike ``property''.
       Page 4, beginning on line 16, strike ``, regarding the 
     extent of permissible uses on the property that has been 
     allegedly infringed or taken''.
       Page 4, line 20, strike ``to use the property''.
       Page 5, line 4, strike ``to use the property''.
       Page 5, beginning on line 6, strike ``use, density, or 
     intensity or development of the property that would be 
     approved, with any conditions therefor,'' and insert instead 
     ``reasons for such disapproval''.
       Page 6, line 19, strike ``the''.
       Page 6, line 20, strike ``of takings of property''.
       Page 7, beginning on line 1, strike ``that'' and all that 
     follows through ``States,'' on line 4.
       Page 7, beginning on line 10, strike ``, regarding the 
     extent of permissible uses on the property that has been 
     allegedly infringed or taken''.
       Page 7, line 14, strike ``to use the property''.
       Page 7, line 16, strike ``or waiver''.
       Page 8, line 4, strike ``the''.
       Page 8, line 5, strike ``of takings of property''.
       Page 8, beginning on line 10, strike ``founded'' and all 
     that follows through ``States,'' on page 8, line 12.
       Page 8, beginning on line 18, strike ``, regarding the 
     extent of permissible uses on the property that has been 
     allegedly infringed or taken''.
       Page 8, line 22, strike ``to use the property''.
       Page 8, line 24, strike ``or waiver''.
       Page 9, line 15, strike ``limiting the use of private 
     property''.
       Page 9, line 17, strike ``owners of that property'' and 
     insert instead ``party affected by such action''.

  The CHAIRMAN. Pursuant to House Resolution 441, the gentleman from 
North Carolina (Mr. Watt) and a Member opposed each will control 10 
minutes.
  The Chair recognizes the gentleman from North Carolina (Mr. Watt).
  Mr. WATT of North Carolina. Mr. Chairman, I yield myself such time as 
I may consume.
  Mr. Chairman, I want to make full disclosure straight up front. I 
have been very up front about the fact that I believe the underlying 
bill is a bad idea. But if the underlying bill is a good idea, and if 
we are going to adopt the underlying bill, the same rules that apply to 
real property cases should apply to other constitutional cases.
  I am holding in my hand the statutory provision under which an 
individual gets into Federal Court: 28 USC, section 1343. It is one 
page. It is one page. It enables people who have Federal constitutional 
rights, whether they are property rights, whether they are privacy 
rights, whether they are first amendment rights, if they have a Federal 
constitutional right, this is the statute that allows them to get into 
Federal Court. And property rights are under the same statute that 
every other civil right is under.
  I am holding in this hand the bill. One, two, three, four, five, six, 
seven, eight, nine pages of special privileges that would be applied 
only to real-property cases. One page for civil-rights cases, nine 
pages for real-property cases that are already covered by the one page. 
There is no reason to do this. And if we do it, the effect is to 
relegate all other civil-rights cases to a second-class status.
  Now, if the gentleman from Florida (Mr. Canady) is correct in what he 
said, and I am quoting the same case that he quoted, it is Lynch vs. 
Household Finance, that says: ``The dichotomy between personal 
liberties and property rights is a false one. Property does not have 
rights, people have rights. The right to enjoy property without 
unlawful deprivation, no less than the right to speak out or the right 
to travel, is, in truth, a personal right.'' And if we are going to do 
this for property rights cases, then, my colleagues, we ought to give 
nine pages to every other personal right that we have under the 
Constitution.
  Now, I do not think this is a good idea, and I am going to vote 
against this bill even if this amendment passes. I am going to be 
honest with my colleagues. I think this is a bad idea because we are 
invading the States rights, we are invading the province of local 
governments. And local government and State government has a lot better 
ability to do this stuff than we do at the Federal level. That is 
exactly what my Republican colleagues have been preaching to us for the 
last 6 years.
  But if we are going to do it, if we are going to elevate real-
property rights to some special status, I beg of my colleagues to put 
all other civil rights on the same basis. And that is all this 
amendment would do.
  Mr. Chairman, I reserve the balance of my time.
  The CHAIRMAN. The gentleman from Florida (Mr. Canady) is recognized 
for 10 minutes in opposition to the amendment.

                              {time}  1515

  Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I 
may consume.
  Mr. Chairman, the gentleman from North Carolina (Mr. Watt) seems to 
be concerned about the length of this bill.
  The truth of the matter is that the length of this bill is because we 
are imposing additional requirements on property owners that they must 
meet over and above the requirements that other civil rights claimants 
would have to meet under the general rule. That is why this bill is as 
long as it is because we have these provisions in here that require 
exhaustion of the various steps at the local level.
  Mr. Chairman, if we wanted to bring property rights up to absolute 
parity with other civil rights claims, we could have a very short bill. 
That bill would simply say that a person with a

[[Page H1099]]

takings claim need not exhaust State, administrative, or judicial 
remedies, period. That would bring them up to absolute parity.
  We have not gone that far. That is why I have suggested, I think 
quite accurately, that this is a very balanced approach which shows 
substantial deference to the local procedures, indeed more deference 
than is shown in any other context.
  Now, the gentleman from North Carolina (Mr. Watt) seems to ignore the 
cases that I have cited over and over again which state the rule that 
is applied across the board in civil rights cases brought under section 
1983 that State, administrative, and judicial remedies need not be 
exhausted. That is the law. That is well established. That is well 
understood.
  I have quoted the cases, and let me quote them again. I will just 
quote the Monroe case from 1961 where the court said ``the Federal 
remedy section 1983 is supplementary to the State remedy and the latter 
need not be first sought and refused before the Federal one is 
invoked.''
  Now, that is the way the law is except when we come to claims 
involving takings of private property. All we are saying is we want to 
do something to eliminate some of that inequity. The truth is we have 
not eliminated inequity entirely because of the procedures that we did 
require at the local level. And I think that is appropriate.
  Ironically, and I do not think this is what the gentleman intends 
with his amendment, but I believe that the amendment of the gentleman 
from North Carolina (Mr. Watt) could very well be construed to impose a 
requirement to exhaust certain administrative remedies on other civil 
rights claims when those requirements are not imposed under law 
currently.
  Now, I do not think that is what the gentleman wants to do. I would 
be quite surprised if he wants to require the exhaustion of 
administrative remedies. I would be surprised if the gentleman wants to 
require the exhaustion of administrative remedies for all those other 
civil rights claims that are brought under section 1983. But I think, 
if I understand his amendment correctly, that would be the consequence 
of it.
  I think the Members need to focus on the fact that this bill is 
designed to deal with the particular well-documented problem. We have 
heard the examples. We have heard the statistics. The amendment would 
expand the reach of the bill to areas where there is no problem.
  The gentleman has not been able to show why we should expand the bill 
to cover these other areas that he purports to be concerned about. The 
truth is there is no reason to expand the bill and, in expanding the 
bill, simply bringing down the protections that are available for other 
civil rights.
  Now, there may be an argument in favor of doing that. I do not think 
that is what the gentleman wants to do, but that would be the 
consequence. So I very well understand why, if the amendment of the 
gentleman was adopted, why he still would vote against the bill.
  Mr. Chairman, I reserve the balance of my time.
  Mr. WATT of North Carolina. Mr. Chairman, would the Chair please 
advise us how much time remains.
  The CHAIRMAN. Both sides have 6 minutes remaining.
  Mr. WATT of North Carolina. Mr. Chairman, I yield myself 3 minutes.
  Mr. Chairman, first of all, I think all my colleagues should 
understand what we are talking about here. The gentleman from Florida 
(Mr. Canady) says that this bill would impose certain limitations on 
other civil rights claims.
  Fine. If it is good enough for the goose, it is good enough for the 
gander.
  This whole thing of putting a property right here and a privacy right 
here, or the fifth amendment says that a State shall not deprive a 
person of life, liberty, or property. They are all in the same line. If 
we are going to treat one of them one way, then we ought to treat all 
of them the same way.
  Now, there has been no willingness to do that on the part of the 
gentleman from Florida (Mr. Canady) or on the part of my colleagues, 
many of them on the other side. They voted for something called the 
Prison Litigation Reform Act of 1995.
  Let me read to my colleagues what the specific language says. And 
this bill passed. This is about deprivation of personal liberty. 
Remember, the fifth amendment says ``life, liberty or property.'' But 
this is the limitation that my colleagues put on dealing with liberty.
  It says, ``no actions shall be brought with respect to prison 
conditions under section 1983 of this title,'' the same statutory 
provision that this bill amends, ``or under any other Federal law by a 
prisoner confined in any jail, prison, or other correctional facility 
until such administrative remedies as are available are fully 
exhausted.''
  Now, that would not be so bad if we were just talking about prison 
conditions. But we are not talking about somebody getting out of jail. 
We are talking about things like the free exercise of religion and 
unusual physical violence by corrections officers or other inmates in 
these prison facilities, or access to legal resources or access to 
medical care.
  My colleagues would have a prisoner who was being starved to death 
and deprived of medical care exhaust every State and local 
administrative remedy even though they have got a constitutional claim. 
But if one of their friends gets deprived of some real property, then 
they want to set up a whole new system. That is what this is about.
  Mr. Chairman, I reserve the balance of my time.
  Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I 
may consume.
  Mr. Chairman, the gentleman from North Carolina (Mr. Watt) has raised 
the Prison Litigation Reform Act, and I think that it is appropriate 
that he do that.
  The truth is that what we are doing in this bill is similar to what 
was done in the Prison Litigation Reform Act, because there we do 
require inmates to go through administrative procedures. There are very 
safeguards to make certain that those procedures are adequate to 
protect the inmates. But in this bill we are also requiring that the 
property owner go through administrative procedures.
  As I have detailed more than once today, after the initial denial, 
the property owner has to pursue an appeal to the planning commission. 
After that they have got to go to the zoning board for a variance. They 
have got to then appeal to the local board of elected officials. In 
some circumstances they will have to file an application again. They 
will have to file an application a second time and go through the 
process. So we are requiring substantial effort in the local process by 
the landowner.
  So I think that, in some ways, what we are doing here is quite 
comparable with what was done in the Prison Litigation Reform Act where 
there was a serious pattern of abuse and frivolous lawsuits which moved 
the Congress to pass that on a bipartisan basis and move President 
Clinton to sign it into law. So that had significant bipartisan 
support.
  What we are trying to do here today I think is also addressing a 
serious problem in the failure to give access to the Federal courts to 
individuals who are entitled to have access to the Federal courts to 
vindicate their constitutional rights.
  My colleagues will notice that in the Prison Litigation Reform Act 
there is no requirement that State judicial remedies be exhausted. That 
is not in there. I do not think it should be in there.
  What this bill is about at its core is helping ensure that State 
judicial remedies not be required to be exhausted before a property 
right litigant can get into Federal court.
  So I appreciate the gentleman from North Carolina (Mr. Watt) bringing 
that bill up. And I just point out again, however, that the general 
rule when it comes to civil rights claims is that they need not exhaust 
either their judicial or their administrative remedies.
  Mr. Chairman, I reserve the balance of my time.
  Mr. WATT of North Carolina. Mr. Chairman, what is the time 
configuration, please?
  The CHAIRMAN. Both sides now have 3 minutes remaining.
  Mr. WATT of North Carolina. Mr. Chairman, I yield 1 minute to the 
gentleman from Oregon (Mr. Blumenauer).
  Mr. BLUMENAUER. Mr. Chairman, I would like to ask the gentleman from

[[Page H1100]]

Florida (Mr. Canady) how long it takes to just simply file the permit 
that he is talking about, these steps that have to be taken? How hard 
is that in terms of just filing an appeal or a permit? How much time is 
involved with that? How hard is it?
  Mr. CANADY of Florida. Mr. Chairman, will the gentleman yield?
  Mr. BLUMENAUER. I yield to the gentleman from Florida.
  Mr. CANADY of Florida. Mr. Chairman, what is required is that there 
be a meaningful application and that these steps be gone through as 
they are permitted under the local process.
  Mr. BLUMENAUER. Mr. Chairman, reclaiming my time, in a typical 
jurisdiction in his community, how much does it take to file a 
meaningful application?
  Mr. CANADY of Florida. Mr. Chairman, if the gentleman will continue 
to yield, it will vary from jurisdiction to jurisdiction and case to 
case depending upon the size of the development, the complexities of 
the issues involved. I think that it is important to understand that 
there are variations.
  Mr. BLUMENAUER. Mr. Chairman, the gentleman from Florida (Mr. Canady) 
could not answer the question. Just simply filing a meaningful appeal 
does not require in most cases huge amounts of time, huge amounts of 
money. It is simply an administrative action and does not require going 
through having any sort of ripening process at all. It is simply 
pushing paper.
  Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I 
may consume.
  Mr. Chairman, the point is the local government has to act on it. It 
is not ripe for adjudication until a decision is made or until they 
just sit on it for an unreasonable period of time. That is the way the 
bill is structured.
  It is clear in the bill there has got to be a decision whether there 
has got to be unreasonable delay where they are just putting the 
application or the appeal aside and not considering it.
  Mr. Chairman, I reserve the balance of my time.
  Mr. WATT of North Carolina. Mr. Chairman, I yield myself such time as 
I may consume.
  Mr. Chairman, I am not going to belabor this. I mean, it is quite 
obvious, if we read the United States Constitution, the fifth amendment 
says that the Government shall not deprive a person of life, liberty or 
property without due process of law. They are all on the same basis.
  The statute that we operate under now puts them on the same basis. 
What this bill is all about is putting property rights and property 
disputes on a different basis than other constitutional rights.
  Now, whether we like criminal defendants or not, they should not have 
a second-class status procedurally. Whether we like people who have 
been deprived of or about to be deprived of their life or liberty or 
have been deprived of their life or liberty should not be the 
determining factor of what process we use. And that is really what this 
is all about.
  The proponents of this bill would like to selectively take some 
rights and elevate them above all other constitutional rights and give 
them a special privilege. And it should not go unnoticed to my 
colleagues that the rights that they want to elevate are the ones not 
having to do with personal liberties but those having to do with 
property.
  This bill is about supporting the propertied interest in our country. 
And I do not have any problem with that. Believe me, I have nothing 
against people who have property. But their interests should not be 
elevated above the rights of other constitutional rights.
  Mr. Chairman, I yield the balance of the time to the gentleman from 
Michigan (Mr. Conyers).
  Mr. CONYERS. Mr. Chairman, as I previously stated, I think this 
legislation is ill-advised because it assumes that the Federal 
judiciary knows better than State and local officials and judges when 
it comes to issues of local land use. I disagree.
  Nevertheless, if we are going to give property owners the ability to 
``jump the line'' into Federal court, it seems only fair that we should 
extend this same right to other section 1983 plaintiffs.
  As a result, the Watt-Conyers amendment would allow all section 1983 
plaintiffs bringing actions for constitutional violations to utilize 
the bill's provisions concerning ripeness and abstention--not just big 
corporations bringing actions.
  As currently drafted, H.R. 2372 permits developers and polluters with 
taking claims against the government under section 1983 to avoid most 
State legal procedures, but ordinary citizens whose civil rights have 
been violated would be placed in a relative position of inferiority.
  This turns the very purpose of section 1983 actions completely on its 
head. Section 1983 was adopted as part of the Civil Rights Act of 1871 
in the wake of the Reconstruction amendments to the Constitution. Known 
as the ``Ku Klux Klan Act,'' it was specifically designed to halt a 
wave of lynchings of African-Americans that had occurred under guise of 
state and local law.
  The bill elevates real property rights over the very civil rights 
section 1983 was enacted to protect--civil rights such as the right to 
counsel, protected under the sixth amendment, the right to be free of 
``cruel and unusual punishment'' under the eighth amendment, and the 
right to exercise one's parental rights. In cases involving these 
constitutional rights--and many others--Federal courts have abstained 
from deciding the constitutional claims brought under section 1983 and 
have sent these cases back to State court for adjudication.
  To those Members who say this does not occur, I would like to quote 
the nonpartisan Congressional Research Service which stated that 
``[a]bstention is indeed invoked by federal courts to dismiss or stay 
non-real-property-related section 1983 claims.'' CRS then goes on to 
cite a number of cases to support that point. Why will the majority 
refuse to acknowledge that Federal courts invoke the abstention 
doctrine against all section 1983 claims--not just those that involve 
takings of property?
  The Watt-Conyers amendment would create an equal playing field for 
all claims brought under section 1983 and grant all of these plaintiffs 
expedited access to the Federal courts.
  I urge the House to support this common-sense amendment.

                              {time}  1530

  Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I 
may consume.
  Mr. Chairman, I want to encourage the Members of the House to reject 
the amendment that is offered by my colleague on the Committee on the 
Judiciary, the gentleman from North Carolina (Mr. Watt).
  The amendment seeks to expand the scope of this bill in a way that is 
totally unjustified. The gentleman keeps reasserting that we are trying 
to elevate property rights above other rights, but that is just not so. 
That is just not so. This is one of those debates where there is a 
disconnect from reality.
  I know the gentleman makes all his arguments in good faith but I just 
have to say that this is not accurate to claim that the bill would have 
that impact.
  We are simply trying to treat property rights a little more fairly 
than they are treated under the current system, where the Federal 
courthouse door is shut and property owners are denied an opportunity 
to get into Federal court to vindicate their Federal constitutional 
rights when their property has been taken.
  Remember, we are talking about extreme cases where there is a taking, 
because the local government makes a decision that deprives the 
landowner of any economically beneficial use of the property. That is 
the small category of cases that we are talking about.
  In those cases, I submit that people should be able to get into 
Federal court to vindicate their Federal constitutional rights. I do 
not see why that is controversial. The gentleman's amendment would have 
the impact, which I know he does not intend, of bringing other rights 
down from the status they now enjoy and requiring that there be some 
exhaustion of administrative remedies in cases where there is no 
requirement of exhaustion of administrative remedies, under the cases 
that I have cited time and time again.
  So I encourage the Members of the House to reject this unnecessary, 
unproductive, harmful amendment and move forward with focusing on the 
work that needs to be done through this legislation, which is ensuring 
that all Americans who have suffered the deprivation of a right through 
the taking of their property have meaningful access to the Federal 
courts.
  Mr. Chairman, I yield back the balance of my time.

[[Page H1101]]

  The CHAIRMAN. The question is on the amendment offered by the 
gentleman from North Carolina (Mr. Watt).
  The question was taken; and the Chairman announced that the noes 
appeared to have it.


                             Recorded Vote

  Mr. WATT of North Carolina. Mr. Chairman, I demand a recorded vote.
  A recorded vote was ordered.
  The vote was taken by electronic device, and there were--ayes 170, 
noes 251, not voting 13, as follows:

                             [Roll No. 52]

                               AYES--170

     Abercrombie
     Ackerman
     Allen
     Andrews
     Baird
     Baldacci
     Baldwin
     Barcia
     Barrett (WI)
     Becerra
     Berkley
     Berman
     Bishop
     Blagojevich
     Blumenauer
     Bonior
     Borski
     Boucher
     Brady (PA)
     Brown (FL)
     Brown (OH)
     Capps
     Capuano
     Carson
     Clay
     Clayton
     Clement
     Clyburn
     Conyers
     Costello
     Coyne
     Crowley
     Cummings
     Davis (IL)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Deutsch
     Dicks
     Dingell
     Dixon
     Doggett
     Dooley
     Edwards
     Engel
     Eshoo
     Etheridge
     Evans
     Farr
     Fattah
     Filner
     Forbes
     Ford
     Frank (MA)
     Frost
     Gephardt
     Gonzalez
     Green (TX)
     Gutierrez
     Hastings (FL)
     Hill (IN)
     Hilliard
     Hinchey
     Hoeffel
     Holden
     Holt
     Hooley
     Inslee
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson, E. B.
     Jones (OH)
     Kanjorski
     Kaptur
     Kennedy
     Kildee
     Kilpatrick
     Kind (WI)
     Kleczka
     Kucinich
     LaFalce
     Lampson
     Lantos
     Larson
     Lee
     Lewis (GA)
     Lofgren
     Lowey
     Luther
     Maloney (CT)
     Maloney (NY)
     Markey
     Matsui
     McCarthy (MO)
     McCarthy (NY)
     McDermott
     McGovern
     McIntyre
     McNulty
     Meehan
     Meek (FL)
     Meeks (NY)
     Menendez
     Millender-McDonald
     Miller, George
     Mink
     Moakley
     Moore
     Moran (VA)
     Nadler
     Napolitano
     Neal
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Pallone
     Pastor
     Payne
     Pelosi
     Pomeroy
     Price (NC)
     Rahall
     Rangel
     Reyes
     Rivers
     Rodriguez
     Roemer
     Rothman
     Roybal-Allard
     Sabo
     Sanchez
     Sanders
     Sandlin
     Sawyer
     Schakowsky
     Scott
     Serrano
     Sherman
     Shows
     Sisisky
     Slaughter
     Smith (WA)
     Snyder
     Spratt
     Stabenow
     Stupak
     Tauscher
     Thompson (MS)
     Thurman
     Tierney
     Towns
     Traficant
     Udall (CO)
     Udall (NM)
     Velazquez
     Vento
     Visclosky
     Waters
     Watt (NC)
     Waxman
     Weiner
     Wexler
     Weygand
     Wise
     Woolsey
     Wynn

                               NOES--251

     Aderholt
     Archer
     Armey
     Baca
     Bachus
     Baker
     Ballenger
     Barr
     Barrett (NE)
     Bartlett
     Barton
     Bass
     Bateman
     Bentsen
     Bereuter
     Berry
     Bilbray
     Bilirakis
     Bliley
     Boehlert
     Boehner
     Bonilla
     Bono
     Boswell
     Boyd
     Brady (TX)
     Bryant
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Campbell
     Canady
     Cannon
     Cardin
     Castle
     Chabot
     Chambliss
     Chenoweth-Hage
     Coble
     Coburn
     Collins
     Combest
     Condit
     Cooksey
     Cox
     Cramer
     Cubin
     Cunningham
     Danner
     Davis (FL)
     Davis (VA)
     Deal
     DeLay
     DeMint
     Diaz-Balart
     Dickey
     Doolittle
     Doyle
     Dreier
     Duncan
     Dunn
     Ehlers
     Ehrlich
     Emerson
     English
     Everett
     Ewing
     Fletcher
     Foley
     Fossella
     Fowler
     Franks (NJ)
     Frelinghuysen
     Gallegly
     Ganske
     Gejdenson
     Gekas
     Gibbons
     Gilchrest
     Gillmor
     Gilman
     Goode
     Goodlatte
     Goodling
     Gordon
     Goss
     Graham
     Granger
     Green (WI)
     Greenwood
     Gutknecht
     Hall (OH)
     Hall (TX)
     Hansen
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Herger
     Hill (MT)
     Hilleary
     Hobson
     Hoekstra
     Horn
     Hostettler
     Houghton
     Hoyer
     Hulshof
     Hunter
     Hutchinson
     Isakson
     Istook
     Jenkins
     John
     Johnson (CT)
     Johnson, Sam
     Jones (NC)
     Kasich
     Kelly
     King (NY)
     Kingston
     Knollenberg
     Kolbe
     Kuykendall
     LaHood
     Largent
     Latham
     LaTourette
     Lazio
     Leach
     Levin
     Lewis (CA)
     Lewis (KY)
     Linder
     Lipinski
     LoBiondo
     Lucas (KY)
     Lucas (OK)
     Manzullo
     Martinez
     Mascara
     McCrery
     McHugh
     McInnis
     McIntosh
     McKeon
     Metcalf
     Mica
     Miller (FL)
     Miller, Gary
     Minge
     Mollohan
     Moran (KS)
     Morella
     Murtha
     Nethercutt
     Ney
     Northup
     Norwood
     Nussle
     Ose
     Oxley
     Packard
     Pascrell
     Paul
     Pease
     Peterson (MN)
     Peterson (PA)
     Petri
     Phelps
     Pickering
     Pickett
     Pitts
     Pombo
     Porter
     Portman
     Pryce (OH)
     Quinn
     Radanovich
     Ramstad
     Regula
     Reynolds
     Riley
     Rogan
     Rogers
     Rohrabacher
     Ros-Lehtinen
     Roukema
     Royce
     Ryan (WI)
     Ryun (KS)
     Salmon
     Sanford
     Saxton
     Scarborough
     Schaffer
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Shays
     Sherwood
     Shimkus
     Shuster
     Simpson
     Skeen
     Skelton
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Souder
     Spence
     Stearns
     Stenholm
     Strickland
     Stump
     Sununu
     Sweeney
     Talent
     Tancredo
     Tanner
     Tauzin
     Taylor (MS)
     Taylor (NC)
     Terry
     Thomas
     Thompson (CA)
     Thornberry
     Thune
     Tiahrt
     Toomey
     Turner
     Upton
     Vitter
     Walden
     Walsh
     Wamp
     Watkins
     Watts (OK)
     Weldon (FL)
     Weldon (PA)
     Weller
     Wicker
     Wilson
     Wolf
     Wu
     Young (AK)
     Young (FL)

                             NOT VOTING--13

     Biggert
     Blunt
     Cook
     Crane
     Hinojosa
     Hyde
     Klink
     McCollum
     McKinney
     Myrick
     Rush
     Stark
     Whitfield

                              {time}  1455

  Messrs. BARRETT of Nebraska, BERRY, REGULA, and SHUSTER changed their 
vote from ``aye'' to ``no.''
  Messrs. HOEFFEL, ROEMER, RODRIGUEZ, SHOWS, and FORBES changed their 
vote from ``no'' to ``aye.''
  So the amendment was rejected.
  The result of the vote was announced as above recorded.
  The CHAIRMAN. It is now in order to consider amendment No. 2 printed 
in House Report 106-525.


                Amendment No. 2 Offered by Mr. Traficant

  Mr. TRAFICANT. Mr. Chairman, I offer an amendment.
  The CHAIRMAN. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Amendment No. 2 offered by Mr. Traficant:
       In section 5, after ``the agency shall'' insert ``, not 
     later than 14 days after the agency takes that action,''.

  The CHAIRMAN. Pursuant to House Resolution 441, the gentleman from 
Ohio (Mr. Traficant) and a Member opposed each will control 5 minutes.
  The Chair recognizes the gentleman from Ohio (Mr. Traficant).
  Mr. TRAFICANT. Mr. Chairman, I yield myself such time as I may 
consume.
  Mr. Chairman, I want to first start out by commenting on the fine job 
that you are doing on this bill.
  When this bill first came forward, I offered an amendment several 
years ago that the little guys do not have attorneys and accountants, 
and there may be an action that causes them to lose value in their 
property, but they would not even know about it. So the original 
Traficant amendment said, the government had to notify them when they 
have taken an action which may cause a devaluation of their property.
  Having said that, this is a perfecting amendment. So the little guy, 
he does not have accountants and attorneys that might notify that this 
action taken by the government could hurt him, so the Traficant 
language says look, the government has to notify him. He may be hurt by 
this action.

                              {time}  1600

  But what this amendment does, it now sets a timetable. It says the 
Federal government shall notify that property owner within 14 days. It 
is very simple: Let that little guy know this action that was taken may 
hurt him, and, within 14 days, tell him about it and where he can go 
for information and compensation, if necessary.
  Mr. CANADY of Florida. Mr. Chairman, will the gentleman yield?
  Mr. TRAFICANT. I yield to the gentleman from Florida.
  Mr. CANADY of Florida. Mr. Chairman, I thank the gentleman for 
yielding to me.
  I am pleased to rise in support of the gentleman's amendment. I thank 
the gentleman for taking the initiative and offering the amendment. I 
encourage all the Members of the House to accept it.
  Mr. TRAFICANT. Mr. Chairman, I reserve the balance of my time.
  Mr. WATT of North Carolina. Mr. Chairman, I claim the time in 
opposition to the amendment.
  The CHAIRMAN. The gentleman from North Carolina (Mr. Watt) is 
recognized for 5 minutes in opposition to the amendment.
  Mr. WATT of North Carolina. Mr. Chairman, I yield myself such time as 
I may consume.
  Mr. Chairman, I reluctantly have to oppose the gentleman's amendment. 
This bill is into micromanagement enough. We are micromanaging local 
governments, we are micromanaging State courts, and now we have gotten

[[Page H1102]]

into micromanaging the time period within which the Federal government 
must do things.
  I have no opposition to the Federal government having to notify a 
property owner after an adverse decision. That requirement I would 
presume is in the law now. But when we start imposing time limits such 
as this 14-day time limit, I think we are into micromanagement.
  While I will not ask for a recorded vote on this, I cannot support it 
and would oppose it.
  Mr. Chairman, I yield back the balance of my time.
  Mr. TRAFICANT. Mr. Chairman, I yield myself the balance of the time.
  Mr. Chairman, I believe that is a reasonable argument, but remember 
that most of the corporations, most of the people that have money, they 
are notified immediately. Their lawyers and accountants say, hey, this 
could hurt.
  That little guy does not have that option. That little guy needs that 
helping hand. I think it should be a 14-day requirement, and if in 
conference it is problematic, make it 30 days. But Mr. Chairman, we 
have some small business loan applicants waiting until they reach 
social security to make the decision. I want the people in my district 
to get a reasonable, timely notice.
  The gentleman makes a good point and I respect it. If that 14 days is 
confining, they have my permission to make it 30 days, but I want a 
reasonable period of time for my little guy to be notified.
  Mr. WATT of North Carolina. Mr. Chairman, will the gentleman yield?
  Mr. TRAFICANT. I yield to the gentleman from North Carolina.
  Mr. WATT of North Carolina. Would the gentleman entertain a friendly 
amendment to stretch the 14 days out to 30? That would actually be a 
lot more reasonable.


                         Parliamentary Inquiry

  Mr. TRAFICANT. Parliamentary inquiry, Mr. Chairman. Would that be 
valid within the rules?
  The CHAIRMAN. The gentleman may ask unanimous consent to modify his 
amendment.


        Modification to Amendment No. 2 Offered by Mr. Traficant

  Mr. TRAFICANT. Mr. Chairman, I ask unanimous consent that my 
amendment be modified to, instead of a 14-day notification date, have a 
30-day period.
  The CHAIRMAN. The Clerk will report the amendment, as modified.
  The Clerk read as follows:

       Amendment No. 2, as modified, offered by Mr. Traficant: In 
     section 5, after ``the agency shall'' insert ``, not later 
     than 30 days after the agency takes that action,''.

  The CHAIRMAN. Is there objection to the request of the gentleman from 
Ohio?
  There was no objection.
  Mr. TRAFICANT. Mr. Chairman, I yield back the balance of my time.
  The CHAIRMAN. The question is on the amendment, as modified, offered 
by the gentleman from Ohio (Mr. Traficant).
  The amendment, as modified, was agreed to.
  The CHAIRMAN. It is now in order to consider amendment No. 3 printed 
in House Report 106-525.


 Amendment No. 3 in the Nature of a Substitute Offered by Mr. Boehlert

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

       Amendment No. 3 in the nature of a substitute offered by 
     Mr. Boehlert:
       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Private Property Rights 
     Implementation Act of 2000''.

     SEC. 2. UNITED STATES AS DEFENDANT.

       Section 1346 of title 28, United States Code, is amended by 
     adding at the end the following:
       ``(h)(1) Any claim brought under subsection (a) that is 
     founded upon a property right or privilege secured by the 
     Constitution, but was allegedly infringed or taken by the 
     United States, shall be ripe for adjudication upon a final 
     decision rendered by the United States, that causes actual 
     and concrete injury to the party seeking redress.
       ``(2) For purposes of this subsection, a final decision 
     exists if--
       ``(A) the United States makes a definitive decision 
     regarding the extent of permissible uses on the property that 
     has been allegedly infringed or taken; and
       ``(B) one meaningful application, as defined by the 
     relevant department or agency, to use the property has been 
     submitted but denied, and the party seeking redress has 
     applied for but is denied one appeal or waiver, where the 
     applicable law of the United States provides a mechanism for 
     appeal to or waiver by an administrative agency.
     The party seeking redress shall not be required to apply for 
     an appeal or waiver described in subparagraph (B) if no such 
     appeal or waiver is available or if such an appeal or waiver 
     would be futile.''.

     SEC. 3. JURISDICTION OF COURT OF FEDERAL CLAIMS.

       Section 1491(a) of title 28, United States Code, is amended 
     by adding at the end the following:
       ``(3) Any claim brought under this subsection founded upon 
     a property right or privilege secured by the Constitution, 
     but allegedly infringed or taken by the United States, shall 
     be ripe for adjudication upon a final decision rendered by 
     the United States, that causes actual and concrete injury to 
     the party seeking redress. For purposes of this paragraph, a 
     final decision exists if--
       ``(A) the United States makes a definitive decision 
     regarding the extent of permissible uses on the property that 
     has been allegedly infringed or taken; and
       ``(B) one meaningful application, as defined by the 
     relevant department or agency, to use the property has been 
     submitted but denied, and the party seeking redress has 
     applied for but is denied one appeal or waiver, where the 
     applicable law of the United States provides a mechanism for 
     appeal or waiver.

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

     SEC. 4. EFFECTIVE DATE.

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

  The CHAIRMAN. Pursuant to House Resolution 441, the gentleman from 
New York (Mr. Boehlert) and a Member opposed each will control 30 
minutes.
  Mr. CANADY of Florida. Mr. Chairman, I claim the time in opposition 
to the amendment.
  The CHAIRMAN. The gentleman from Florida (Mr. Canady) will be 
recognized for 30 minutes in opposition to the amendment.
  Mr. BOEHLERT. Mr. Chairman, I ask unanimous consent that the 
gentleman from Massachusetts (Mr. Delahunt) be allocated 15 minutes of 
the total time allocated to me.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
New York?
  There was no objection.
  The CHAIRMAN. The Chair recognizes the gentleman from New York (Mr. 
Boehlert).
  Mr. BOEHLERT. Mr. Chairman, I yield myself such time as I may 
consume.
  Mr. Chairman, I am offering this amendment in the nature of a 
substitute with the gentleman from Massachusetts (Mr. Delahunt) in an 
effort to remove the most glaring fault, one might almost say ``sin'', 
in this bill: its interference in local zoning processes.
  Here is what the substitute would do. It would strike Section 2 of 
the bill, the section that deals with local zoning matters, and it 
would preserve Sections 3 and 4 of the bill, which deal with land 
disputes involving the Federal government. It would preserve those 
sections in the forms in which they came to the floor in 1997. Our 
substitute is identical to the one I offered at that time.
  I have been hearing a few different arguments against the substitute, 
all of which are disingenuous. Let me deal with just one of them for 
now.
  We are told that the substitute is unnecessary because Section 2 is 
simply an innocent attempt to ensure that local zoning cases move 
forward, a small and technical change that would be employed only in 
rare circumstances. That is what we are told.
  I am afraid that the supporters of this bill are inviting us to enter 
an Alice-in-Wonderland world where words can mean anything they want 
them to mean. The actual fact is that Section 2 would fundamentally 
alter the balance of power in zoning cases. The top lobbyist for the 
National Association of Home Builders admitted as much when he told 
Congress Daily that the purpose of this bill is to put a hammer to the 
head of State and local officials. That is exactly what the bill would 
do.
  The supporters of the bill have tried to obscure that fact. They have 
tried to

[[Page H1103]]

sheathe the hammer, because they know the public would oppose any such 
pressure tactics. We know that from their own words.
  For example, the National Association of Realtors signed a letter 
supporting H.R. 2372, but here is what they said in a separate press 
release that arrived in our office the very same day. The realtors said 
that a survey found that 95 percent, 95 percent of the public believed 
that ``neighbors and local governments, not States or the Federal 
government, should make decisions concerning growth and related 
issues,'' and I agree with that.
  But Section 2 of H.R. 2372 goes exactly in the opposite direction. It 
takes the unprecedented step of dictating local zoning procedures from 
Washington, short-circuiting those local processes in the bargain. It 
removes any incentive for developers to negotiate, taking growth issues 
out of the control of neighbors and local governments and handing them 
over to Federal judges who, exercising judicial restraint, do not want 
them.
  The supporters of H.R. 2372 claimed these new rules will save time 
and money, but that, once again, gives away their hand. These new rules 
will save localities time and money only if they capitulate to the 
developers. If localities choose to fight to protect their citizens, 
then H.R. 2372 will make zoning cases even more prolonged and costly 
because Federal court litigation will be more time-consuming and costly 
than going to State courts.
  That is why the groups that understand zoning so vociferously opposed 
H.R. 2372. That includes the National Association of Counties, the 
National League of Cities, the U.S. Conference of Mayors, the National 
Conference of State Legislatures, and the Association of Attorneys 
General.
  The Boehlert-Delahunt amendment would eliminate the problem these 
groups have with the bill because it would leave local zoning intact. 
In short, the argument raised against the amendment simply cannot hold 
up, even under the most superficial scrutiny.
  I urge all who oppose this bill to vote for the Boehlert-Delahunt 
amendment because it strikes the most problematic portion of the bill. 
I also urge those who have qualms about H.R. 2372 but still might 
intend to vote for final passage to also support the Boehlert-Delahunt 
amendment, because it will allay their concerns.
  The Boehlert-Delahunt amendment simply ensures that this bill will 
improve Federal procedures, not wreck local ones. The amendment is 
supported by the League of Conservation Voters and the National League 
of Cities, and I urge its adoption.
  Mr. Chairman, I reserve the balance of my time.
  Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I 
may consume.
  Mr. Chairman, I do rise in opposition to the substitute amendment 
offered by my friend, the gentleman from New York.
  The substitute that the gentleman has offered would gut the bill. The 
change that the gentleman would make in the bill goes right to the 
heart of the bill and removes the provisions of the bill that are 
designed to deal with the real problem that was the motivation for 
introducing this bill.
  He leaves in place some provisions of the bill that help clarify 
procedures at the Federal level, and I think those things, it is good 
to do that. But the real problem that the bill is trying to address has 
to do with abuse in the rules of the Federal court system which prevent 
landowners whose property has been taken at the local level from having 
meaningful access to the Federal courts.
  The gentleman's amendment, as he has stated, would remove all the 
provisions that affect local land use decisions. We have to remember, 
the local land use decisions that would be affected by the bill are 
those local land use decisions that result in takings without 
compensation.
  We have heard a lot about how this bill is going to affect every 
local zoning decision in the country. Members of the House, I hope 
Members can pierce through the rhetoric and understand that that is 
simply not true. There is no constitutional deprivation unless there is 
a taking in violation of the Constitution.
  The court, the Supreme Court, has established a standard for such 
regulatory takings. What they have said, which is formulated I think 
most clearly and succinctly in the Lucas decision, which came down back 
in 1992, is that there is a regulatory taking when the local land use 
decision deprives the landowner of any economically beneficial use of 
his land.
  So basically what we are talking about are decisions where they tell 
the landowner, you cannot do anything with your land that will be 
economically beneficial. I would suggest to the Members that is an 
extreme category of case.
  There are some people who do not think that there should be 
constitutional protection against such governmental action. I think 
many of the people who are opposing this bill are people who simply do 
not agree with providing protection against that sort of extreme, 
overreaching land use decision. That is why they want to make it as 
difficult as they can for people to have a remedy for a violation of 
that right.
  But the court has found that such a right exists. I think they are 
right. In those cases, all we are saying in this bill is that people 
should be able to have their day in Federal court. Why that is 
controversial or why that is something we should pause for one minute 
about here, I do not understand.
  Make no mistake about it, if Members vote for this substitute, they 
are voting to destroy this bill. What is left will be a shell of what 
this bill was. So this is not a matter of just splitting the difference 
and voting for the substitute and then voting for the bill as a 
compromise. This would not amount to a compromise, it would amount to 
the destruction of the bill.
  When we look at the substance of the objections to the bill that the 
sponsors of the substitute have raised, it seems to boil down to the 
claim that the bill would unfairly short-circuit the local zoning 
process.
  I have explained why it only deals with a narrow category of cases, 
but consider what the bill says about the local zoning process and what 
the bill requires that property owners do before a case is ripe for 
adjudication in the Federal courts.
  We do not tell a landowner, once you are rejected, you run right off 
to Federal court. That is what happens whenever people suffer any other 
kind of civil rights deprivation at the local level. Under Section 
1983, they can go straight to Federal court without exhausting their 
State or administrative judicial remedies. But here in this bill we are 
saying, you are going to have to go through the administrative process. 
You are going to have to go through options that are available to you 
at the local level.
  We say, you will have to appeal to the planning commission after you 
are denied. You have to then make an application for a waiver to the 
local zoning board. You have to seek review by the local elected 
governing board. But then at the end of that process after, you have 
gone through those steps, and in some cases you have to file a second 
application, after you have gone through all that, we are simply saying 
you should not have to go to State court to litigate the case there, 
but should be able to go to Federal court to have your Federal, and 
remember, it is a Federal constitutional right we are talking about 
here, should be able to go to Federal court to have a decision made 
regarding your Federal constitutional right.

                              {time}  1615

  One of the great ironies that has struck me in the course of the 
discussion over this issue is this, if a claim involving a taking is 
filed in State court, and the local government prefers for that case to 
be heard in Federal court, the local government has the right to have 
that case removed from State court to Federal court, and they do it.
  That is a tactic that local governments will use to slow down the 
process, because once the case is going to State court, they will jump 
in and say let us move it to another forum. They have got the right to 
do that as a local government when the landowner does not have the 
right in the first place to go to Federal court.
  Now, one would think that is so bizarre, that somebody might be 
making

[[Page H1104]]

it up. If my colleagues have questions about that, I refer them to the 
case that was decided by the Supreme Court in 1997, the City of Chicago 
v. International College of Surgeons case.
  That case says exactly what I have just explained, that a local 
government which has been sued in State court where a claim is raised, 
a Federal claim is raised of a Federal taking, has the right to go to 
the Federal district court and have that case removed from the State 
court to the Federal court.
  Now, explain to me how it is fair that the local government can 
decide that the matter is going to be litigated in Federal court when 
the aggrieved property owner does not have the right to go to Federal 
court in the first place.
  I suggest to my colleagues that is an absurd rule in the law of this 
land. It is a rule that this Congress should change by passing this 
bill. We will not change it if we adopt the amendment that is offered 
by the gentleman from New York (Mr. Boehlert).
  As my colleagues consider this substitute amendment, let me urge them 
to consider a fundamental principle, which I have stated earlier in 
this debate, which I will state again, I will probably repeat before 
the debate is over, and that is people whose Federal constitutional 
rights are violated should have meaningful access to the Federal courts 
for the vindication of their Federal constitutional rights. If the 
Federal courts exist for any reason, it should be to protect Federal 
constitutional rights. Why that is controversial remains a mystery to 
me, and it will always remain a mystery to me.
  I tell my colleagues I think it is because the local governments, and 
I used to represent local governments, and I respect them, and most of 
them make reasonable decisions in the vast majority of cases, but, 
occasionally, they will step over the proper bound and will violate 
someone's constitutional rights.
  They have got a good deal under the existing system, because they can 
go to Federal court. They can take a case to Federal court if it is to 
their advantage, and they can keep it out of Federal court if it is to 
their advantage.
  I think we should have a level playing field. It ought to be a two-
way street. There is no reason there should be that kind of asymmetry 
in the system.
  So I suggest that this amendment that is being offered be rejected 
and that we move forward to the passage of the bill so that we can 
correct the very real problem that exists in the administration of 
justice in this country.
  Mr. Chairman, I reserve the balance of my time.
  Mr. DELAHUNT. Mr. Chairman, I yield 3 minutes to the gentleman from 
Oregon (Mr. Blumenauer).
  Mr. BLUMENAUER. Mr. Chairman, I thank the gentleman from 
Massachusetts for yielding me this time.
  Mr. Chairman, I think I have spent more time than anybody in this 
Chamber working with people around the country, in Florida, in Georgia, 
in the Northwest who are concerned about the livability of their 
community. That is my focus.
  The notion that somehow that we are going to deal on these extreme 
takings cases, and that is what we need to focus on, misses the point 
entirely about the impact that this legislation would have.
  The things that people care about in communities around the country 
are the impacts on small communities and a whole host of areas that are 
in a gray area, where it is not cut and dry.
  I personally believe that, oftentimes, the decision making process is 
too uneven, is too political. That is why, State after State after 
State, is starting now to establish comprehensive land use planning 
processes from Tennessee, Oregon, Wisconsin. Georgia is now looking in 
metropolitan Atlanta because of the nightmare they have with sprawl and 
unplanned growth.
  This legislation would undercut those efforts whenever people feel 
that they can have an opportunity to circumvent it. They do not have to 
perfect appeals.
  The gentleman keeps talking about how they have to go through the 
process again and file applications. That is simply pushing paper. That 
is an application fee. It does not require an extensive effort.
  If the gentleman reads the bill, he finds out there is a further 
exemption where, if people feel that the application or the 
reapplication or waiver would be futile, that they do not have to go 
through that process at all. That is absolutely the wrong approach to 
take.
  The gentleman from New York (Mr. Boehlert), the author of this 
amendment, has pioneered a bipartisan effort to reach Superfund 
compromise. If we would have that same sort of spirit to deal with 
those few problems where there are legitimate issues about streamlining 
the process, come together, I think we could improve the process 
without going to the extremes of turning it around.
  This turns it around. It places small and medium-sized jurisdictions 
at the mercy of people who will file these expensive appeals. It is 
going to back up the courts if they use it. It is not going to be any 
faster. It will, in fact, wear down. Remember the vast majority of 
jurisdictions in this country have fewer than a couple of thousand 
constituents.
  I, in the past, have enjoyed working with the home builders trying to 
refine these efforts. They are doing a great job now I think of 
negotiating with the administration on Brownfield legislation.
  We ought to take that approach, solve a problem rather than opening a 
floodgate, undercutting State and local efforts, and doing something 
that has no chance of being passed through this body and signed by the 
President, and is only going to inflame the opposition that people have 
to local efforts that do not support planned thoughtful growth.
  Mr. BOEHLERT. Mr. Chairman, I yield 2\1/2\ minutes to the 
distinguished gentleman from Maryland (Mr. Gilchrest).
  Mr. GILCHREST. Mr. Chairman, I thank the gentleman from New York for 
yielding me this time.
  Mr. Chairman, I want to compliment the gentleman from Florida (Mr. 
Canady) on his attempt in the legislation to hold onto one of the 
foundations of this country, and that is the hallmark of private 
property rights.
  But I want to make another suggestion on another hallmark of America 
and our freedom, and that is respect for one's neighbor, respect for 
the air one's neighbor breathes, the water he drinks, the dust around 
his property, the noise, the traffic, the odor, et cetera, et cetera, 
et cetera; that what one does on one's property does not adversely 
affect the quality of life for one's neighbor to use his property.
  Now, there was also another fundamental in our democratic process 
which is embedded in the Constitution; and that is, if one's property 
is taken away for the public good, one is to be compensated at fair 
market value.
  But now listen to this, what else is there in one's constitutional 
right in America? It is this. When one's property is regulated to 
prevent harm to one's neighbor from that dust or that odor or that 
inability to have a water management plant or storm water management 
plant or whatever, should one be compensated? The basic answer through 
our court system, through our legislation is no.
  Let me give my colleagues two quick examples in my district. There 
was a 54-acre plot of land purchased for the purpose of bringing in 
out-of-State trash to be put on this land and then called a rubble 
fill. The local zoning board said, no, you cannot do it. It was 
appealed to the zoning appeals board. They said, no, you cannot do it. 
It was then taken to the State court; and the State court said, no, it 
will adversely affect your community for a number of reasons: Truck 
traffic, noise, dust, you name it.
  The premise in this, and there was another example that I could use, 
almost the exact same thing with a sludge storage facility, to bring in 
out-of-State sludge to be stored on a 300-acre farm that only needed 
sludge, if they were going to use it, every third or fourth year. They 
were going to store thousands of tons of sludge. The zoning appeals 
board said no. The State court said no. They took it to Federal court.
  If they could jump from the zoning appeals board to the Federal 
court, would the judge, in this case the judge lives in the community 
because it is a circuit court judge, would he have an understanding of 
the need for the neighbors in his community? I would

[[Page H1105]]

say the answer is no. I say to my colleagues, support the Boehlert-
Delahunt substitute.
  Mr. CANADY of Florida. Mr. Chairman, may I inquire of the Chair 
concerning the amount of time remaining.
  The CHAIRMAN. The gentleman from Florida (Mr. Canady) has 21\1/2\ 
minutes remaining. The gentleman from New York (Mr. Boehlert) has 7\1/
2\ minutes remaining. The gentleman from Massachusetts (Mr. Delahunt) 
has 12 minutes remaining.
  Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I 
may consume.
  Mr. Chairman, the gentleman from Maryland (Mr. Gilchrest) raised some 
interesting points, but I do not think they have anything to do with 
this bill because he was talking about land uses, where a local 
government makes a decision and they are not going to be approved. 
Those did not involve takings of the property.
  We are talking about situations under this bill where there is a 
constitutional violation, a taking. If one has some doubt about it, 
look in the bill on page 4. The operative language is, any claim or 
action brought under section 42 U.S.C. 1983 to redress the deprivation 
of a property right or privilege secured by the Constitution.
  That only comes up when the local government decides that they are 
going to impose a restriction that deprives the landowner of any 
beneficial economic use of the land.
  Now, that is what we are dealing with here. I tell my colleagues I 
believe in local control. But I do not think that the neighbors in a 
community have the right to use the government to take someone else's 
property for the benefit of the community without paying for it. That 
is all we are saying here.
  Mr. GILCHREST. Mr. Chairman, will the gentleman yield?
  Mr. CANADY of Florida. I yield to the gentleman from Maryland.
  Mr. GILCHREST. Mr. Chairman, I will say the rubble fill operator 
stood to make literally millions of dollars on the property, but it 
would have damaged.
  Mr. CANADY of Florida. Mr. Chairman, the important thing to 
understand, some people in the land use context do assert that they 
should have the right to the highest and best economic use of their 
property, but they do not, and they should not. Zoning has never 
permitted that. The Supreme Court does not provide for that. That is 
not the law of the land. It should not be the law of the land.
  So what the gentleman from Maryland is talking about has nothing to 
do with the legal realities of what we are dealing with here. What we 
are talking about are those extreme cases where the government 
overreaches and denies all economically beneficial use of the land 
basically where they tell people they are going to turn their private 
property into a public preserve. That is not right.
  Mr. Chairman, I yield 4 minutes to the gentleman from Louisiana (Mr. 
Tauzin).
  (Mr. TAUZIN asked and was given permission to revise and extend his 
remarks.)
  Mr. TAUZIN. Mr. Chairman, I thank the gentleman from Florida for 
yielding me this time.
  Mr. Chairman, let me be, perhaps, very clear about what this bill is 
not about so we do not get confused as we almost just did. It is not 
about zoning laws. Zoning laws under Federal court decisions are not 
takings. The reason they are not takings is all land owners benefit 
mutually from zoning laws. The government is not taking away one's 
value there. It is enhancing the general value of all properties zoned 
one way or another in that zoning condition.
  We are not talking about nuisance laws. Nuisance laws are being held 
by the courts not to be takings.
  We are talking about the kind of laws in which the general public 
benefits from, but a single landowner or class of landowners has to 
sacrifice his property for.
  Dolan v. The City of Tigard is the best case on record. In that case, 
the City of Tigard, a local authority, tried to tell a landowner that 
we will only give you a building permit, which he was entitled to, if 
you give us some of your land for a green space and a running back.
  Now, the court, after 10 years of litigation, finally held to that 
local authority, the Supreme Court rule did not have the right to take 
that man's and that woman's property in the course of giving them or 
not giving them a building permit without paying them just 
compensation. That was a taking.
  This bill is all about making sure that wherever Federal civil rights 
violations of property takings occur, be they by Federal authorities or 
State authorities, that one has the right at least to go to Federal 
court and get one's Federal civil rights on property adjudicated.
  I want to make that point again. The court in Dolan v. The City of 
Tigard made it very clear that the fifth amendment protection against 
government at any level taking your one's rights without paying one, 
that fifth amendment right is a civil right.
  The court said it is no different, no distant relative to any other 
civil rights in the Bill of Rights, whether they be the right of free 
speech or the right of assembly or the right of religion.
  The court in that decision said, in effect, that the right of Mr. 
Dolan and his wife to be protected against their own local government 
was not a local decision to be decided in State court. It was involving 
a civil right guaranteed under the Bill of Rights of our Constitution.

                              {time}  1630

  And the Supreme Court of our land finally settled it.
  Now, why did it take 10 years? Because they had to go through this 
entire appeal process for all the court system. All the gentleman from 
Florida (Mr. Canady) is doing is saying where this federally guaranteed 
right ought to be protected for the citizens of this land, they at 
least ought to have the Federal courts to go to to protect them. That 
is all this bill does.
  When the right to go to Federal Court is taken away because it 
happens to be a State authority that took the property, or because it 
happens to be a local or county or parish authority that took that 
property, when that right is taken away to go to Federal Court, the 
landowner is condemned to 10 years of litigation.
  There was another case in Texas that took 10 years, and it finally 
ended up in the court of claims and the government lost because they 
had taken the full value of a property owner's rights in a lot in a 
subdivision that they had declared a wetland. In that case the court 
begged Congress to do something about this. Nobody in our country ought 
to have to wait 10 years to go to court to get an answer as to whether 
or not the government took their property.
  This bill is all about process. It is not about defining takings, it 
is not about saying when a taking occurs, it is not about saying what 
conditions under which a taking occurs are going to apply in the law of 
the land. It is simply about process. And if we deny people process to 
get their federally guaranteed civil rights adjudicated, we are denying 
them their rights. If it takes 10 years to get some court to finally 
tell a landowner that the government ought to pay the full value, not 
the value that is left over after the landowner has been regulated to 
death, then something is wrong in America.
  This amendment ought to be defeated. This bill ought to be passed.
  Mr. DELAHUNT. Mr. Chairman, I yield 2 minutes to the gentleman from 
Maine (Mr. Baldacci).
  (Mr. BALDACCI asked and was given permission to revise and extend his 
remarks.)
  Mr. BALDACCI. Mr. Chairman, I thank the gentleman from Massachusetts 
(Mr. Delahunt) for yielding me this time, and I rise in favor of this 
amendment.
  I rise in defense of the people of the 2nd District of Maine, and 
especially the loggers, the farmers, and the fishermen of Washington 
County. Unemployment there recently nudged above 10 percent. The 
traditional uses of land, the jobs they depend upon, and the families 
that need those paychecks are under fire. I have to take a stand on 
their behalf.
  This amendment gets at the issue at heart, to be able to have a 
response to Federal action that is being taken in terms of listing. It 
gives the people of Washington County and the people of eastern Maine 
an opportunity for their day in court. They cannot afford to have 
expensive attorneys on retainers

[[Page H1106]]

for long periods of time. This amendment allows them to have that 
process, to be expedited, to be able to be heard. It gets at exactly 
the issue before us: Federal action, Federal Court, expedited review.
  Mr. Chairman, my constituents feel besieged by a Federal proposal to 
list as endangered Atlantic salmon in the rivers of the region. A 
listing would strain the economy which is based on natural resources. 
Moreover, the listing threat is unwarranted on the merits. It lacks 
sound science, and it fails to recognize strong state and local 
conservation efforts.
  I have heard from people whose livelihoods depend on the land and 
water--from the working forests and blueberry barrens inland to the 
salmon pens along the coast. They are crying out for help, for a way to 
protect the natural environment while at the same time preserving jobs 
and a way of life.
  I have heard them. I agree that the proposed listing is wrong and 
will unfairly hurt my constituents. Therefore, I have to use any tool 
at my disposal to send a message that this process is wrong.
  I have focused on the provisions of H.R. 2372 that provide that any 
property right infringed by a Federal action would be ripe for 
adjudication upon a final decision by the Federal Government. This 
change would ensure that the people of downeast Maine would not be 
stuck in limbo by endless appeals but rather would have a 
straightforward process to seek redress.
  The legislation being considered today is not perfect, and I will 
support attempts by my colleagues to make it better. I believe Mr. 
Boehlert's amendment most succinctly addresses both my concerns and 
those of my constituents. He narrows the focus of the bill to the 
federal issues, and I will support him.
  However, at the end of the day, I will support final passage of this 
legislation whatever its form. I believe this bill takes an important 
step in protecting the rights of my constituents.
  Mr. BOEHLERT. Mr. Chairman, I yield 3 minutes to the gentleman from 
Iowa (Mr. Ganske).
  Mr. GANSKE. Mr. Chairman, I will vote against this bill if the 
Boehlert amendment fails.
  How many times have my fellow Republicans stood on this floor and 
argued the benefits of local control? It seems to me that I have heard 
my fellow Republican colleagues argued forcefully for States' rights 
and local control when it concerns welfare reform, school vouchers, 
flexibility for crime prevention funding, and all sorts of things. Yet 
here we are today debating a bill that would take crucial power away 
from State and local governments, overwhelm the Federal judicial system 
with local land-use cases and possibly endanger public safety.
  My fellow House conservatives, who are the champions of State power, 
would, in this bill, federalize countless quintessentially local cases. 
And for the life of me I cannot understand how the industries that 
support this bill think that this would benefit them.
  First, they may very well find that they do not get speedier 
resolution of these disputes in Federal Court because the Federal 
courts are already clogged with drug cases. If my colleagues think the 
wait in Federal court is long now, just wait until local land-use cases 
are in Federal courts primarily.
  I just met with the Federal judges in my State, in my district. They 
stressed how they are swamped with current jurisdiction. They do not 
want new jurisdiction. I urge every Member to meet with their own 
Federal judges.
  Second, we just had a big debate in the Senate about how liberal some 
Federal jurisdictions are. Last year, I received a letter from an 
attorney in Iowa who works in the property rights area for home 
builders, who said there is no evidence that developers' claims would 
receive any more favorable hearing in Federal courts than in local 
jurisdictions.
  This is borne out by the statement of Judge Frank Easterbrook of the 
7th Circuit Court of appeals who said, ``Federal courts are not boards 
of zoning appeals. This message, oft repeated, has not penetrated the 
consciousness of property owners who believe that Federal judges are 
more hospitable to their claims than are State judges. Why they should 
believe this, we haven't a clue.'' This seems to me like a pretty clear 
message that the Federal courts may not be all that sympathetic to 
developers.
  And here is something else for my conservative colleagues to ponder. 
If this bill becomes law, it sets a precedent. What if in future years 
a liberal Congress decides that there will be no development of 
property outside of those areas already developed as determined by 
Federal law? Do we really want Federal Government primarily involved 
from the get-go in local land-use decisions? I certainly do not think 
so.
  The base bill would encourage the belief that Federal courts ought to 
run local government. I urge my fellow conservatives to vote for the 
Boehlert amendment and vote against the base bill if it does not pass.
  Mr. CANADY of Florida. Mr. Chairman, I yield 4 minutes to the 
gentleman from Georgia (Mr. Barr).
  (Mr. BARR of Georgia asked and was given permission to revise and 
extend his remarks.)
  Mr. BARR of Georgia. Mr. Chairman, let me get this straight, my 
colleagues. The author of this amendment says that the underlying 
proposal, the underlying bill here, reminds him of Alice in Wonderland. 
Well, maybe he is familiar with a version of Alice in Wonderland from 
upstate New York; but it sure is not the version of Alice in Wonderland 
that we are familiar with down in Georgia. As a matter of fact, his 
amendment is as much like the looking glass in Alice in Wonderland as 
the looking glass was.
  Let us look at what the gentleman who is proposing this gutting 
amendment is really saying. This is his amendment. It says: ``Strike 
all after the enacting clause.'' Strike it. Wipe it out. All of its 
guarantees, all of its process, all of its substance. Strike it out. 
And then let us replace it with something that he calls the Private 
Property Rights Implementation Act of 2000. He very generously steals 
the title of the gentleman from Florida (Mr. Canady), but that is the 
last similarity between these two pieces of paper.
  He is saying that the only property rights that individuals will have 
for a reasonable, expedited, fair appeal to Federal Court, to assert a 
Federal guaranteed right, is if the Federal Government is coming in and 
taking property, as if it does not matter, in this Alice in Wonderland 
world of his, that some other government authority is coming in and 
snatching the property away. That is okay in his Alice in Wonderland 
world. Only can an individual assert their right in a reasonably, fair, 
and expedited manner so that it makes sense if it is the Federal 
Government coming in.
  That is wrong. That is as if the gentleman were saying let us 
implement rights regarding the first amendment or the fourth amendment, 
and then we look and see what the gentleman from New York is saying, 
and he is saying an individual can go into Federal court only if it is 
the Federal Government taking away the right to free speech, or the 
right to free assembly, or the right to due process, or the right to 
equal protection, or the right to counsel, or the right to confront 
witnesses.
  It makes no more sense to apply that limited, unreasonable, and 
unfair standard to property rights than it would to apply the standard 
embodied in this amendment, this gutting amendment, to private property 
rights.
  The proposal that we are debating today, the underlying bill offered 
by the gentleman from Florida, the distinguished chairman of the 
Subcommittee on the Constitution, and which has been already passed by 
this body by a very large majority, stands for fundamental equal 
protection, due process, fairness, and expedited review of a Federal 
right in Federal Court. The amendment proposed by the gentleman from 
New York, that he erroneously characterizes as legitimate and fair 
implementation of rights, guts our constitution.
  I would urge all of my colleagues to sift through the rhetoric, the 
cloud, the sky-is-falling rhetoric, defeat this amendment which guts 
the bill, and stand on this floor and use their voting cards to say 
that if an individual's property is taken, that they have a right to 
assert that in the form of their choosing, not the form chosen by the 
gentleman from New York.
  Mr. BOEHLERT. Mr. Chairman, I yield myself 30 seconds.
  The language in the substitute only guts the bill if the goal is to 
undermine local government. The language in the substitute is identical 
to the way sections 3 and 4 were presented to this House less than 3 
years ago, language that was written, as they themselves

[[Page H1107]]

admit, by the National Association of Home Builders. It is hard to 
understand why they would claim their own language was meaningless.
  And as for striking all after the enacting clause, that is what all 
substitutes do under all circumstances.
  Mr. DELAHUNT. Mr. Chairman, I yield myself such time as I may 
consume.
  I am pleased to join with the gentleman from New York in offering 
this amendment in the nature of a substitute. Specifically, the 
substitute would eliminate those portions of the bill that confer upon 
large developers, and let us be candid, that is what we are really 
talking about here, large developers, the right to go directly to 
Federal Court to resolve purely local land disputes that have always, 
always, been handled at the State and local level.
  Land use is, as the gentleman from Iowa said, quintessentially a 
local issue, a local matter; and it has been under local and State 
control since the beginning of the Republic. I think I heard a quote 
from one of the previous speakers that quoted a particular conservative 
Federal judge saying Federal courts are not boards of zoning appeals. 
Let us not denigrate them.
  The bill before us would allow developers to bypass local zoning 
boards, local health departments, and local courts in their efforts to 
win at all cost. It would do so by sweeping aside long-established 
judicial and constitutional principles that require Federal courts to 
give State and local authorities the opportunity to decide such local 
matters for themselves.
  The question was raised, why is this so controversial, because it 
enforces a right? It is controversial because it sweeps away two 
fundamental principles of our American jurisprudence: the abstention 
doctrine and the issue of rightness. That is why it is controversial. 
Because it absolutely impacts everything that we have embraced to this 
point in time since the beginning of the Republic as far as our 
jurisprudence is concerned.
  The bill would inevitably result in lower environmental health and 
safety standards as local authorities seek to avoid exposure to costly 
lawsuits. By federalizing literally thousands of these cases, the bill 
would encourage developers to sue rather than negotiate with local 
officials and neighboring landowners. The resulting litigation would 
impose huge costs on local governments that, candidly, they cannot 
afford.
  Let us remember, Mr. Chairman, that 97 percent of the cities and 
towns in America have populations under 10,000; 52 percent have 
populations under 1,000. Virtually without exception these small 
communities are forced to hire outside expensive legal counsel each 
time they are sued, imposing large and unanticipated costs on municipal 
budgets. Even then these communities are no match for corporate giants 
and large developers.
  If the bill is allowed to go through without this amendment, we will 
be giving enormous leverage to developers and denying ordinary citizens 
and their elected representatives effective access to the courts.

                              {time}  1645

  That is what this underlying bill would do. And that is why it is 
opposed by a variety of groups that have already been enumerated: the 
National League of cities, they are concerned about the local State/
Federal relationship and that is why they oppose it; the National 
Association of Towns and Townships; the National Association of 
Counties; the National Conference of State Legislatures; the U.S. 
Conference of Mayors, all of whom are concerned about the core 
principle at stake here, which is the principle of federalism; the 
Conference of State Chief Justices; the Judicial Conference 
representing the Federal judiciary, because they are aware of fact that 
they cannot handle an increased backlog that this proposal, this 
underlying bill, would clearly generate.
  The AFL-CIO is opposed to this bill because, in committee, the 
majority would have denied an exemption to the bill which would have 
allowed cases involving public health and public safety being exempted; 
and that is the reason that organized labor is opposed to this bill.
  Apart from its effects on local communities, the bill, as I 
indicated, would overwhelm Federal courts that are already staggering 
under the burden of their existing caseloads.
  Now, one might suppose that such a proposal as this was generated by 
those who favor a larger role in the Federal Government, but that is 
not the case. The authors of the bill are the very individuals whom The 
Washington Post referred to yesterday morning as ``self-proclaimed 
champions of State power.''
  One might suppose that this proposal was generated by those who 
advocate a larger role for the Federal judiciary. But again, that is 
not the case. The proponents and authors of the bill are the very 
individuals who regularly come to the well of this House and rail 
against judicial activism by unelected Federal judges.
  Only last Congress, they were on the floor attempting to pass a 
measure that was called the Judicial Reform Act, which would have 
prohibited Federal judges from ordering a State or local government to 
obey environmental protection, civil rights, or other laws if doing so 
would cost them any money.
  The gentleman from New York will remember that measure because it was 
an amendment which we offered together that brought about its much 
deserved defeat.
  What that bill attempted to do was to strip the Federal courts of 
jurisdiction or violations of Federal law that were indisputably within 
their proper sphere of authority.
  What this bill attempts to do is to transfer to those very courts 
jurisdiction over violations of State and local laws that have never 
been within the scope of their authority. Well, so much for federalism. 
So much for local control.
  So, Mr. Chairman, if my colleagues are concerned about unfunded 
mandates because it would impose additional costs upon local 
governments, vote for this substitute. If they are concerned about 
limited government and local control, vote for the substitute. If my 
colleagues are concerned about judicial intervention by unelected 
judges, vote for the substitute.
  So, for all these reasons, I urge my colleagues to support the 
substitute and oppose this reckless and irresponsible bill.
  Mr. Chairman, I reserve the balance of my time.
  Mr. CANADY of Florida. Mr. Chairman, may I inquire of the Chair 
concerning the amount of time remaining?
  The CHAIRMAN. The gentleman from Florida (Mr. Canady) has 12 minutes 
remaining. The gentleman from New York (Mr. Boehlert) has 4 minutes 
remaining. The gentleman from Massachusetts (Mr. Delahunt) has 3\1/2\ 
minutes remaining.
  Mr. CANADY of Florida. Mr. Chairman, I yield 3\1/2\ minutes to the 
gentleman from Texas (Mr. Stenholm).
  (Mr. STENHOLM asked and was given permission to revise and extend his 
remarks.)
  Mr. STENHOLM. Mr. Chairman, I rise to express my strong opposition to 
the Boehlert amendment and urge my colleagues to oppose any efforts to 
delete provisions which provide access to the Federal courts for 
property owners pursuing takings claims against local governments.
  Currently, property owners do not have the option of directly 
pursuing a fifth amendment claim in Federal court. They must exhaust 
all possible State and local administrative remedies first, which is an 
expensive and time consuming process that may leave owners in 
administrative limbo for years. On average, it takes 8 to 10 years for 
property owners to get a hearing on facts of their cases. That is just 
not right.
  I am a strong advocate of the traditional and historic rights and 
responsibilities of State and local governments. I support the position 
that decisions affecting local communities are best made at the local 
level. However, individual private property owners seem to have no 
recourse in land-use disputes currently. Federal involvement is 
outlined in H.R. 2372 and constitutionally is needed to protect their 
rights.
  I want to make sure individual property owners are heard regardless 
of whether there disagreement is with local, State or Federal 
governments. The Boehlert amendment would gut significant protections 
when the taking was made by State and local governments.

[[Page H1108]]

  The base bill should be left intact to remedy this situation by 
defining issue when a government's agency decision is final so that 
owners do not encounter an infinite cycle of appeals. The bill does not 
change the way local, State, or Federal agencies resolve disputes with 
property owners.
  H.R. 2372 is not targeted at local government, nor does it take away 
control of local zoning decisions from local officials. If anything, it 
is targeted at Federal courts for wasting time and money by delaying 
consideration of these very important cases.
  By simply providing clearer language for Federal courts on when a 
final agency action has taken place, the courts have no reason not to 
hear the case on its merits.
  Furthermore, H.R. 2372 does not permit Federal courts to get involved 
in the land use decision-making process, nor does it change the way 
agencies resolve disputes. Property owners can get into Federal court 
only after local government has reached a final decision. A final 
decision is reached only after the property owner makes a series of 
applications and appeals through the local planning and zoning process.
  The legislation requires a property owner to pursue only Federal 
constitutional issues in Federal court, a function our Federal court 
system has always performed.
  H.R. 2372 does not give the Federal judiciary any more or less power 
than it currently has. The Federal contract now has and always has had 
the responsibility to review the constitutionality of actions taken by 
all levels of government.
  Property owners do not want centralized authority over land-use 
decisions. Indeed, that is more often the position of those opposed to 
property rights legislation. H.R. 2372 neither defines for a court when 
an unconstitutional taking has occurred, nor does it weaken any 
environmental statute.
  While I have a great deal of respect for the advocates of the 
substitute, the Boehlert amendment is far more sweeping and has a far 
greater effect than acknowledged by its sponsors.
  This amendment would not only render the bill useless but also set 
back property rights protections for the current already challenged 
status. This amendment protects the rights of the bureaucracy over the 
rights of the individual. This reform is simply about fairness.
  For the sake of property owners, I hope H.R. 2372 will become law. I 
urge my colleagues to oppose the Boehlert amendment, pass H.R. 2372 
ensuring meaningful access to Federal courts for Americans whose 
Federal constitutional rights may have been violated.
  Mr. BOEHLERT. Mr. Chairman, I yield 2 minutes to the distinguished 
gentleman from Delaware (Mr. Castle), the former governor of Delaware.
  Mr. CASTLE. Mr. Chairman, I thank the gentleman for yielding me the 
time.
  Mr. Chairman, I do support the Boehlert-Delahunt amendment to this. I 
support it in its own right. I support it if it guts the bill. I 
support it under any conditions because I oppose the bill quite simply.
  I find this amazing. Maybe the Democrats want to watch the NCAA for a 
couple of minutes while I talk, because I think I am aiming this mostly 
at Republicans until I heard the gentleman from Texas (Mr. Stenholm). 
And that is that we are essentially mainstreaming this whole issue of 
land usage if there is any indication of a taking whatsoever to the 
Federal courts.
  Now, we are the party that has complained about lawyers. We are the 
party that has complained about courts. We are the party that has 
complained about Federal courts.
  I do not know what it is like in every other State in the United 
States of America, but in the State of Delaware, and I think this is 
probably true of almost all of our States, we have a lot of processes 
for handling local land-use issues. And there is a good reason for 
that.
  These are the people who know what to do with it. It is why they are 
so opposed to this legislation. They have handled it before. The 
elected officials there, the appointed officials there have hearings. 
They have expertise, they have knowledge, they have technical ability 
to be able to handle the matters which come before them with respect to 
large land-use planning, zoning decisions, and dealing with land in 
general.
  Our constituents, our neighbors have a right to be heard. Are they 
going to be heard by the Federal court judges who could care less about 
this issue, who do not want anything to do with this issue, who 
probably do not have a background in this issue, or do they want to be 
heard by people like us, their fellow elected officials and the other 
local people who are there? The answer is simple. They would prefer to 
have it done at the local level.
  What we have in place now at the local level with appeals to the 
State courts and then to the Federal court if indeed some of these 
violations take place is exactly what it should be.
  Let me just say this: Just the mere threat of going to the Federal 
court at some point by a large developer or by a large landowner is 
probably going to be enough in many cases to upset the apple cart 
altogether, and that too would be wrong.
  So it is for all these reasons that all this opposition exists. I 
hope all of us will listen to that. Vote for the Boehlert-Delahunt 
amendment and do not vote for this legislation.
  Mr. CANADY of Florida. Mr. Chairman, I yield 1 minute to the 
gentleman from California (Mr. Cunningham).
  Mr. CUNNINGHAM. Mr. Chairman, I would correct the gentleman that we 
are the party that is against liberal lawyers. We are the party against 
the socialists that want to take our property. We are against the 
people that deny our rights to fight for our private property.
  I would tell the gentleman from Iowa (Mr. Ganske) that he has got 
people in Iowa, he is a doctor, maybe he works out of a little brick 
house, but he wants to give his farmers the right to take it to a 
Federal Government if some rat at a local government overrides their 
rights. That is all we are asking for is to take it to the Federal 
level.
  I would say to the gentleman who offered the amendment, they got 
milk, they got religion, the California Desert Plan, the California 
Central Valley Water Project. All of these were Federal intervention, 
not local control. We had eight farmhouses that burned to the ground 
because they could not disk around their property. We wanted local 
control.
  This gives the private property owner the right and the ability to 
take it to the Federal Government when local overrides their civil 
rights.
  I oppose this amendment and support the bill strongly. This is 
California. Look at what is controlled.
  Mr. DELAHUNT. Mr. Chairman, I yield 30 seconds to the gentleman from 
North Carolina (Mr. Watt), the ranking member of the Subcommittee on 
the Constitution.
  Mr. WATT of North Carolina. Mr. Chairman, I rise in hardy support of 
the Boehlert-Delahunt substitute. This may be the most direct vote we 
have taken in this Congress on State rights and local rights and this 
whole issue.
  What this amendment does is it strikes out all of the references to 
local decisions and makes this about Federal decisions. Those are the 
decisions that ought to be in Federal court. The people who support 
States' rights ought to be thinking about it in that way.
  Mr. DELAHUNT. Mr. Chairman, I yield such time as he may consume to 
the gentleman from Michigan (Mr. Conyers), the ranking member of the 
Committee on the Judiciary.
  (Mr. CONYERS asked and was given permission to revise and extend his 
remarks.)
  Mr. CONYERS. Mr. Chairman, I want to commend my colleagues on both 
sides of the aisle for this substitute, particularly the gentleman from 
New York (Mr. Boehlert) and the gentleman from Massachusetts (Mr. 
Delahunt).
  H.R. 2372 would radically unbalance the playing field between local 
governments and large landowners. It allows big developers to threaten 
local governments with expensive litigation in federal court if the 
localities do not approve their plans.
  For example, a large developer may apply for a permit to build 800 
homes on a parcel of land. A zoning official may deny that request, and 
a zoning board may as well. Under the bill, if that zoning board is 
elected, the matter is then ripe for Federal district court. The costs 
of litigating this issue in Federal court would overwhelm--if not 
bankrupt--many small towns and counties.

[[Page H1109]]

  Ninety-seven percent of the cities and towns in America have 
populations under 10,000. Virtually without exception, these towns have 
no full time legal staff. As a result, these small communities are 
forced to hire outside legal counsel each time they are sued--imposing 
large and unexpected burdens on small governmental budgets.
  The bottom line is that these localities can't afford a Federal court 
battle, so under H.R. 2372, they would be pressured into approving 
plans that are not in the interests of the entire community.
  The bill also undermines the ability of locally elected officials to 
protect public health and safety, safeguard the environment, and 
support the property values of all the residents of the community. 
Because a large developer can threaten a local community with Federal 
court litigation, local officials may be forced into the position of 
either having to approve their projects or face daunting legal 
expenses. Developers would have less incentive to resolve their 
disputes with neighbors or negotiate for a reasonable out-of-court 
settlement. The costs of defending unjustified federal takings 
litigation would threaten local community fire, police, and 
environmental protection services.
  The substitute offered by Representatives Boehlert and Delahunt would 
remedy this glaring problem with the bill. By limiting the bill's scope 
to Federal takings, only, the substitute protects the independent 
decisionmaking of local officials. We want our local communities to 
make their decisions of the merits--not based on whether they can 
afford to fight a lawsuit in Federal court.
  It is ironic, indeed, that the majority purports to respect ``States' 
rights'' yet supports legislation that would undermine local 
decisionmaking and authority in an area traditionally left to local 
control.
  The substitute also eliminates H.R. 2372's onerous and over-
burdensome requirement that a Federal agency give notice to the owners 
of private property whenever an agency's action may ``affect'' the use 
of that property. The Department of Justice has stated that this 
mandate could apply to countless Federal programs and regulatory 
actions that prohibit illegal activity or control potentially harmful 
conduct.
  For example, a Federal prohibition on flying an unsafe airplane 
``limits'' the use of the plane. Emission controls for a hazardous 
waste incinerator ``limit'' the use of the incinerator, and so on. It 
is also unclear how property owners could be identified--let alone 
notified--in cases where Federal action affects large numbers of 
people. The Federal Government would need to keep a ``Big Brother'' 
data base of property owners--just to comply with this portion of H.R. 
2372. The substitute wisely eliminates this unwieldy requirement.
  I urge my colleagues to vote ``yes'' on the Boehlert-Delahunt 
substitute.
  Mr. BOEHLERT. Mr. Chairman, I yield 15 seconds to the gentleman from 
Iowa (Mr. Ganske) to respond to the comments of the gentleman from 
California (Mr. Cunningham).
  Mr. GANSKE. Mr. Chairman, I would respond to my colleague from 
California by noting that, if somebody wants to put a huge hog lot 
operation in some place in some county in Iowa, those local inhabitants 
want to be able to take this issue to State court first.
  The CHAIRMAN. The gentleman from Florida (Mr. Canady) has 7\1/2\ 
minutes remaining.

                              {time}  1700

  Mr. CANADY of Florida. Mr. Chairman, I yield 3 minutes to the 
gentleman from Maryland (Mr. Hoyer).
  Mr. HOYER. Mr. Chairman, I rise in opposition to this Boehlert 
amendment. I have the greatest respect for both of the sponsors of this 
amendment; but as my friend from Texas said, I believe this effectively 
guts the underlying bill. Indeed, I think that is its intent.
  The fifth amendment of the Constitution prohibits the Government from 
taking private property without just compensation. This prohibition is 
applicable to local governments, of course, as all of us know through 
the 14th amendment.
  I think that many of us are in agreement that a problem exists in the 
way that takings cases are adjudicated.
  Let me say that for the most part I have opposed the efforts on the 
other side of the aisle to gut environmental protections. I support 
substantively those provisions in local, State and Federal law. 
However, it now takes on average 10 years for the average takings case 
to be heard. Because of this delay, an unbelievable 80 percent of the 
cases are never heard on their merits.
  Robert Kennedy was quoted, and others have been as well, that justice 
delayed is justice denied.
  I believe that with takings cases, it is clear that justice is being 
delayed and denied. Therefore, I suggest to my colleagues this is not 
about States' rights or Federal rights. This is not about liberals or 
conservatives. This is about whether in the United States of America 
when an individual feels aggrieved by their government at whatever 
level that government happens to be, that they have an opportunity for 
relief and redress; that they can appeal in a timely fashion to have 
the government's actions adjudged by an independent judiciary.
  Now, because this is a constitutional right, it seems to me right and 
proper that they have access in a timely way to their Federal 
judiciary. Therefore, although I am in disagreement with most of my 
friends on this issue, which I perceive to be a process issue, an issue 
of not denying interminably the ability of Americans to seek redress in 
the courts, not a substantive issue as to the underlying environmental 
protections, which I support; but I very strongly support this bill on 
the process grounds that government ought not to, by constant and 
interminable delay, deny to any citizen, no matter how poor or how 
rich, the right to have their rights adjudicated in the courts of this 
land.
  Therefore, I rise in opposition to my friend's amendment and in 
strong support of the underlying bill, and I thank the gentleman from 
Florida (Mr. Canady) for yielding the time.
  Mr. BOEHLERT. Mr. Chairman, I yield myself 30 seconds.
  Mr. Chairman, I just would like to reiterate that it is a myth that 
it takes 10 years to resolve takings disputes. The National Association 
of Home Builders manufactured this total misleading fact by using only 
14 Federal appellate cases over a 9-year period. So that is absolutely 
wrong, as also is that 83 percent figure. That involved only 33 cases, 
29 of which were dismissed by the Court because the claimants' lawyer 
refused to follow State procedures for seeking compensation before 
going to the Federal court. That is the myth. This is a reality.
  Mr. CANADY of Florida. Mr. Chairman, I yield 1 minute to the 
gentleman from California (Mr. Pombo).
  Mr. POMBO. Mr. Chairman, I thank the gentleman from Florida (Mr. 
Canady) for yielding me this time.
  Mr. Chairman, it is not a myth. It is a reality. What this bill is 
all about is protecting the constitutionally guaranteed rights of the 
individual and that is what we are trying to do.
  I was trying to follow along with this debate, and I ran across a 
letter that was sent out by a large fund-raising organization that 
masquerades as an environmental group known as the Sierra Club.
  One of the things that they point out in their letter is that a 
recent poll determined, so now that they have everybody's attention, 
that it would allow industry and developers to bypass local public 
health and land protections. It goes on to talk about waste dumps, 
incinerators, urban sprawl. It sounds very much like the argument for 
this amendment and against the bill.
  The truth of the matter is, there is nothing in this bill that in any 
way takes over local land-use control. That is just a scare tactic that 
they are trying to throw up that has nothing to do with this bill. What 
this bill is about is protecting the individuals' constitutionally 
guaranteed private property rights, and that is what scares the hell 
out of the proponents of this amendment.
  Mr. BOEHLERT. Mr. Chairman, would the gentleman from Massachusetts 
(Mr. Delahunt) yield the time he has remaining to me?
  Mr. DELAHUNT. Mr. Chairman, I yield the remaining time to the 
gentleman from New York (Mr. Boehlert).
  The CHAIRMAN. The gentleman from New York (Mr. Boehlert) now controls 
4 minutes.
  Mr. BOEHLERT. Mr. Chairman, the gentleman from New York yields 1\1/2\ 
minutes to the distinguished gentleman from Connecticut (Mr. Shays).
  Mr. SHAYS. Mr. Chairman, sometimes local zoning decisions reduce the 
value of property and sometimes local zoning decisions increase the 
value of property. Sometimes it is perceived as a takings. Sometimes it 
is perceived as a givings. Property owners take certain risks.

[[Page H1110]]

  I agree with editorial criticism that points out this bill undermines 
the ability of literally every single community in the United States to 
control its own development at a time when traffic congestion, sprawl, 
open space, the availability and quality of drinking water, and other 
land-use issues are taking on increased visibility and importance.
  I believe in local control of education. I believe in local control 
of zoning. That is why I support the Boehlert amendment, because it 
narrows this bad bill.
  Mr. CANADY of Florida. Mr. Chairman, I yield 2 minutes to the 
gentleman from Florida (Mr. Boyd).
  (Mr. BOYD asked and was given permission to revise and extend his 
remarks.)
  Mr. BOYD. Mr. Chairman, I thank my friend, the gentleman from Florida 
(Mr. Canady), for yielding me this time.
  Mr. Chairman, I stand in opposition to the Boehlert substitute to 
H.R. 2372. The substitute strips the bill of its primary purpose, that 
is, ensuring that property owners can have their fair day in court.
  Today, property owners seeking just compensation for their takings 
claims face endless rounds of expensive, administrative, and judicial 
appeals. Certainly, local land-use decisions should be handled at the 
local level; but when those decisions infringe upon federally-
constitutionally guaranteed rights, or when agencies leave land-use 
claims in regulatory limbo, property owners should be able to 
expeditiously defend their rights in Federal court.
  H.R. 2372 does not give Federal courts new authority over questions 
that should be handled in State courts. It simply provides a procedural 
method to ensure a decision is reached on the facts of the case without 
spending 10 years in litigation to get there.
  The Boehlert substitute on the other hand would codify the status 
quo. Even worse, the substitute establishes a dangerous precedent of 
requiring Federal courts to handle the same constitutional claim 
differently depending upon who the defendant is.
  I hope my colleagues will defeat the Boehlert substitute and pass a 
bill that opens the courthouse door to property owners seeking 
protection of their fifth amendment rights.
  The CHAIRMAN. The Chair would advise that the gentleman from New York 
(Mr. Boehlert) has 3 minutes remaining, and the gentleman from Florida 
(Mr. Canady) has 1\1/2\ minutes and the right to close.
  Mr. BOEHLERT. Mr. Chairman, I yield myself such time as I may 
consume.
  Mr. Chairman, the supporters of this bill keep claiming that the bill 
is different this year, but those differences are more apparent than 
real and some of them change the bill for the worse. None of the 
language about appeals at the local level means anything, because the 
threat of Federal courts will still loom behind them. The appeal 
process will not encourage a developer to negotiate, as current rules 
do, because the developer will know that he can just bide his time and 
then threaten to take the municipality to Federal court.
  Under the bill, the developer can simply submit the exact same 
proposal three times, remain intransigent, evade all the existing local 
and State forums, and threaten to go to Federal court.
  I urge my colleagues not to be fooled by the procedural scaffolding 
that has been added to hide the real intent and impact of this bill.
  There is a fundamental principle guiding our actions, and that 
fundamental principle is simply this: local zoning matters should be 
the purview of local government. That is why so many organizations 
oppose H.R. 2372 and stand with me; religious groups, United States 
Catholic Conference, the National Council of Churches of Christ, 
Evangelicals for Social Action, Religious Action Center of Reformed 
Judaism; environmental groups, including the League of Conservation 
Voters, which is the amalgam of all the environmental organizations. 
Incidentally, on fund-raising the Sierra Club is pikers compared to the 
National Association of Home Builders. State and local governments, the 
National Conference of State Legislatures, the National League of 
Cities, the National Association of Counties. It goes on and on. The 
Judicial Conference of the United States, chaired by Chief Justice 
William Rehnquist; the Conference of State Chief Justices; the American 
Federation of State, County and Municipal Employees; AFL-CIO; religious 
organizations, court organizations, labor organizations, environmental 
groups, State and local governments, because they share an abiding 
faith in the fundamental principle that local zoning matters should be 
the purview of local governments. People who are living in the 
neighborhood, people whose daily lives are impacted by these decisions, 
not some distant people far off, removed in the Nation's capital but 
people right in the neighborhood.
  The fact of the matter is, if this bill passes, intimidation will be 
the rule of the day and town after town, municipality after 
municipality will capitulate because they cannot face the prospect of 
lengthy, costly litigation in some far, distant court. They want to 
decide for themselves at the local level, and we want to help them 
preserve this sacred fundamental principle.
  I urge my colleagues to support the Boehlert-Delahunt amendment and 
to oppose the final bill if that Boehlert-Delahunt amendment does not 
get the necessary majority vote.
  Mr. CANADY of Florida. Mr. Chairman, I yield myself the balance of my 
time.
  Mr. Chairman, I urge the Members of the House to reject this 
amendment which would gut the bill. Let me point out, again, that this 
bill is not about local zoning decisions that reduce the value of 
property. This is about local zoning decisions that destroy the value 
of property; local zoning decisions that tell the owner of the property 
that that owner is deprived of any viable, beneficial economic use of 
the land.
  This bill is about giving access to the Federal courts of this land 
to Americans whose property has been taken by regulatory action in 
violation of the Constitution of the United States.
  The glory of this country is that we have a constitution. The glory 
of this country is that we protect the rights of the people of this 
country. We have a 14th amendment.
  In the days after the Civil War, that 14th amendment was enacted to 
ensure that we had uniform protection for certain basic rights across 
the land that did not exist before the 14th amendment was passed. That 
is what we are talking about here today, giving reality to the promise 
of the 14th amendment, ensuring that all Americans will have access to 
the Federal courts to protect their Federal constitutional rights. That 
should not be controversial. That is not trumping any right that should 
not be trumped.
  The Constitution should be honored here. We should recognize that the 
Constitution requires that we give meaningful access to the courts; and 
if we wish to see that constitutional rights are respected, as they 
should be, we will reject the amendment offered by the gentleman from 
New York (Mr. Boehlert) and move forward to the passage of this bill 
which will open up the courthouse doors to those who have suffered a 
deprivation of their constitutional rights.
  Mrs. BIGGERT. Mr. Chairman, I rise today in support of the Boehlert 
amendment, and in opposition to H.R. 2372.
  I am a strong supporter of private property rights, but I believe 
local land-use decisions are exactly that--local. In disputes regarding 
local zoning rules, the Federal court should not be the court of first 
resort, but rather the court of last resort.
  Local zoning boards and planning commissions are rightfully 
responsible for regulating local land use, and have been for centuries. 
They balance the interests of property owners with community values, 
local circumstances, and the interests of neighboring property owners.
  As a former local plan commission chairman, I know that negotiation 
is key to finding just the right balance. But this bill eliminates any 
incentive for negotiation at the local level, tipping the scale against 
budget-strapped localities.
  It also removes accountability. Local zoning boards and planning 
commissions are accountable to locally elected officials and, 
ultimately, local residents.
  Can a Federal judge make the same claim? I don't believe so.
  Federal land use decisions that involve the taking of private 
property appropriately fall under the purview of the Federal Government 
and the Federal courts. In disputes regarding

[[Page H1111]]

the Federal taking of private property, the Federal court should be the 
court of first resort. The Boehlert amendment recognizes this 
principle, and preserves bill language giving property owners expedited 
access to federal courts.
  In its current form, this bill usurps state and local authority, and 
threatens our system of federalism. The Boehlert amendment corrects 
this situation and strengthens private property rights, and I would 
urge my colleagues to support it.
  Mr. CANADY of Florida. Mr. Chairman, I yield back the balance of my 
time.
  The CHAIRMAN. The question is on the amendment in the nature of a 
substitute offered by the gentleman from New York (Mr. Boehlert).
  The question was taken; and the Chairman announced that the noes 
appeared to have it.


                             Recorded Vote

  Mr. BOEHLERT. Mr. Chairman, I demand a recorded vote.
  A recorded vote was ordered.
  The vote was taken by electronic device, and there were--ayes 179, 
noes 234, not voting 21, as follows:

                             [Roll No. 53]

                               AYES--179

     Abercrombie
     Ackerman
     Allen
     Andrews
     Baird
     Baldacci
     Baldwin
     Barrett (WI)
     Bass
     Bateman
     Bereuter
     Bilbray
     Blagojevich
     Blumenauer
     Boehlert
     Bonior
     Borski
     Boucher
     Brady (PA)
     Brown (FL)
     Brown (OH)
     Capps
     Capuano
     Cardin
     Carson
     Castle
     Clay
     Clayton
     Clyburn
     Conyers
     Cooksey
     Costello
     Coyne
     Cummings
     Davis (FL)
     Davis (IL)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Deutsch
     Dicks
     Dingell
     Dixon
     Doggett
     Ehlers
     Engel
     Eshoo
     Evans
     Farr
     Fattah
     Filner
     Forbes
     Ford
     Frank (MA)
     Frelinghuysen
     Ganske
     Gejdenson
     Gephardt
     Gilchrest
     Gilman
     Goss
     Greenwood
     Gutierrez
     Hall (OH)
     Hinchey
     Hoeffel
     Holt
     Horn
     Inslee
     Jackson (IL)
     Jackson-Lee (TX)
     Johnson (CT)
     Johnson, E.B.
     Jones (OH)
     Kanjorski
     Kaptur
     Kelly
     Kennedy
     Kildee
     Kilpatrick
     Kleczka
     Kucinich
     LaFalce
     Lantos
     Larson
     Lazio
     Leach
     Lee
     Levin
     Lipinski
     Lofgren
     Lowey
     Luther
     Maloney (CT)
     Maloney (NY)
     Markey
     Matsui
     McCarthy (MO)
     McDermott
     McGovern
     McKinney
     McNulty
     Meehan
     Meek (FL)
     Meeks (NY)
     Menendez
     Metcalf
     Millender-McDonald
     Miller (FL)
     Miller, George
     Minge
     Mink
     Moakley
     Mollohan
     Moore
     Moran (VA)
     Morella
     Nadler
     Napolitano
     Neal
     Oberstar
     Obey
     Olver
     Owens
     Pallone
     Pastor
     Payne
     Pelosi
     Pomeroy
     Porter
     Portman
     Price (NC)
     Ramstad
     Rangel
     Regula
     Reyes
     Rivers
     Rodriguez
     Roemer
     Roukema
     Roybal-Allard
     Sabo
     Sanders
     Sawyer
     Saxton
     Schakowsky
     Serrano
     Shaw
     Shays
     Sherman
     Slaughter
     Smith (NJ)
     Smith (WA)
     Snyder
     Stabenow
     Strickland
     Stupak
     Thurman
     Tierney
     Towns
     Udall (CO)
     Udall (NM)
     Upton
     Velazquez
     Visclosky
     Walsh
     Waters
     Watt (NC)
     Waxman
     Weiner
     Weldon (PA)
     Wexler
     Weygand
     Wise
     Wolf
     Woolsey
     Wynn
     Young (FL)

                               NOES--234

     Aderholt
     Baca
     Bachus
     Baker
     Ballenger
     Barcia
     Barr
     Barrett (NE)
     Bartlett
     Barton
     Becerra
     Bentsen
     Berkley
     Berry
     Bilirakis
     Bishop
     Bliley
     Blunt
     Boehner
     Bonilla
     Bono
     Boswell
     Boyd
     Brady (TX)
     Bryant
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Campbell
     Canady
     Cannon
     Chabot
     Chambliss
     Clement
     Coble
     Coburn
     Collins
     Combest
     Condit
     Cox
     Cramer
     Crowley
     Cubin
     Cunningham
     Danner
     Davis (VA)
     Deal
     DeLay
     DeMint
     Diaz-Balart
     Dickey
     Dooley
     Doolittle
     Doyle
     Dreier
     Duncan
     Dunn
     Edwards
     Ehrlich
     Emerson
     English
     Etheridge
     Everett
     Ewing
     Fletcher
     Foley
     Fossella
     Fowler
     Franks (NJ)
     Frost
     Gallegly
     Gekas
     Gibbons
     Gillmor
     Gonzalez
     Goode
     Goodlatte
     Goodling
     Gordon
     Graham
     Granger
     Green (TX)
     Green (WI)
     Gutknecht
     Hall (TX)
     Hansen
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Herger
     Hill (IN)
     Hill (MT)
     Hilleary
     Hilliard
     Hobson
     Hoekstra
     Holden
     Hooley
     Hostettler
     Houghton
     Hoyer
     Hulshof
     Hunter
     Hutchinson
     Isakson
     Istook
     Jefferson
     Jenkins
     John
     Johnson, Sam
     Jones (NC)
     Kind (WI)
     King (NY)
     Kingston
     Knollenberg
     Kolbe
     Kuykendall
     LaHood
     Lampson
     Largent
     Latham
     LaTourette
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas (KY)
     Lucas (OK)
     Manzullo
     Martinez
     Mascara
     McCarthy (NY)
     McCrery
     McHugh
     McInnis
     McIntosh
     McIntyre
     McKeon
     Mica
     Moran (KS)
     Murtha
     Nethercutt
     Ney
     Northup
     Norwood
     Nussle
     Ortiz
     Ose
     Oxley
     Packard
     Pascrell
     Paul
     Pease
     Peterson (MN)
     Peterson (PA)
     Petri
     Phelps
     Pickering
     Pickett
     Pitts
     Pombo
     Pryce (OH)
     Quinn
     Radanovich
     Rahall
     Reynolds
     Riley
     Rogan
     Rogers
     Rohrabacher
     Ros-Lehtinen
     Rothman
     Royce
     Ryan (WI)
     Ryun (KS)
     Salmon
     Sanchez
     Sandlin
     Sanford
     Scarborough
     Schaffer
     Scott
     Sensenbrenner
     Sessions
     Shadegg
     Sherwood
     Shimkus
     Shows
     Shuster
     Simpson
     Sisisky
     Skeen
     Smith (MI)
     Smith (TX)
     Souder
     Spence
     Spratt
     Stearns
     Stenholm
     Stump
     Sununu
     Sweeney
     Talent
     Tancredo
     Tanner
     Tauscher
     Tauzin
     Taylor (MS)
     Taylor (NC)
     Terry
     Thomas
     Thompson (CA)
     Thompson (MS)
     Thornberry
     Thune
     Tiahrt
     Toomey
     Traficant
     Turner
     Vitter
     Walden
     Wamp
     Watkins
     Watts (OK)
     Weldon (FL)
     Weller
     Wicker
     Wilson
     Wu
     Young (AK)

                             NOT VOTING--21

     Archer
     Armey
     Berman
     Biggert
     Chenoweth-Hage
     Cook
     Crane
     Hastings (FL)
     Hinojosa
     Hyde
     Kasich
     Klink
     Lewis (GA)
     McCollum
     Miller, Gary
     Myrick
     Rush
     Skelton
     Stark
     Vento
     Whitfield

                              {time}  1740

  Messrs. LEWIS of California, ORTIZ, SPRATT, BACHUS, DICKEY, CANNON, 
HILLIARD, and BECERRA changed their vote from ``aye'' to ``no.''
  Mr. BILBRAY changed his vote from ``no'' to ``aye.''
  So the amendment in the nature of a substitute was rejected.
  The result of the vote was announced as above recorded.
  The CHAIRMAN. The question is on the committee amendment in the 
nature of a substitute, as amended.
  The committee amendment in the nature of a substitute, as amended, 
was agreed to.
  The CHAIRMAN. Under the rule, the Committee rises.
  Accordingly, the Committee rose; and the Speaker pro tempore (Mr. 
Hastings of Washington) having assumed the chair, Mr. LaTourette, 
Chairman of the Committee of the Whole House on the State of the Union, 
reported that that Committee, having had under consideration the bill 
(H.R. 2372) 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; to prevent Federal courts from abstaining from exercising 
Federal jurisdiction in actions where no State law claim is alleged; to 
permit certification of unsettled State law questions that are 
essential to resolving Federal claims arising under the Constitution; 
and to clarify when government action is sufficiently final to ripen 
certain Federal claims arising under the Constitution, pursuant to 
House Resolution 441, he reported the bill back to the House with an 
amendment adopted by the Committee of the Whole.
  The SPEAKER pro tempore. Under the rule, the previous question is 
ordered.
  Is a separate vote demanded on the amendment to the committee 
amendment in the nature of a substitute adopted by the Committee of the 
Whole? If not, the question is on the committee amendment in the nature 
of a substitute.
  The committee amendment in the nature of a substitute was agreed to.
  The SPEAKER pro tempore. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed and read a third time, and was 
read the third time.


               Motion to Recommit Offered by Mr. Conyers

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

       Mr. Conyers moves to recommit the bill H.R. 2372 to the 
     Committee on the Judiciary with instructions to report the 
     same back to the House forthwith with the following 
     amendment:

[[Page H1112]]

       Add at the end the following:

     SEC.   . LIMITATIONS ON APPLICATION.

       This Act and the amendments made by this Act do not apply 
     with respect to claims against a municipality, county, or 
     similar unit of local government arising out of an action in 
     that municipality, county, or unit--
       (1) to protect the public from prostitution or illegal 
     drugs;
       (2) to control adult book stores and the distribution of 
     pornography;
       (3) to protect against illegal ground water contamination, 
     the operation of an illegal waste dump, or similar 
     environmental degradation; or
       (4) that is a voter initiative or referendum to control 
     development that threatens to overburden community resources.

  Mr. CONYERS (during the reading). Mr. Speaker, I ask unanimous 
consent that the motion to recommit be considered as read and printed 
in the Record.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Michigan?
  There was no objection.
  The SPEAKER pro tempore. The gentleman from Michigan (Mr. Conyers) is 
recognized for 5 minutes on his motion to recommit.
  Mr. CONYERS. Mr. Speaker, my motion to recommit would narrow the bill 
so that it does not interfere with the actions by local governments of 
certain specific actions; namely, four:
  One, this bill should not interfere with the actions by local 
governments to protect the public from prostitution and illegal drugs.
  Two, we should not interfere with actions by local governments to 
control adult bookstores and the distribution of pornography.

                              {time}  1745

  Three, we should not interfere with the actions of local governments 
to protect against illegal groundwater contamination or the operation 
of an illegal waste dump.
  Nor, four, should we interfere with local governments that try to 
prevent actions that arise from a voter initiative or a referendum to 
limit out of control development. We want to prevent local governments 
from being precluded from actions that arise from a voter initiative or 
referendum to limit out of control development.
  Now, which Member among us wants to make it more difficult for local 
governments to take action to limit illegal drug use or prostitution? 
The people this bill protects are not just innocent landowners, they 
are also purveyors of pornography and common criminals who are misusing 
their property.
  So I believe that, in these cases, local communities should be able 
to enact reasonable land use policies that protect their citizens. For 
example, this motion to recommit would help the City of Minneapolis, 
which successfully fought a court battle with the owners of a sauna in 
which numerous prostitution arrests had occurred. The sauna owners 
challenged the City's order to shut it as a taking of property. The 
City was able to defend itself in State court; but under this bill, 
this would have become a Federal court fight, far more expensive for 
the City to defend if they could have afforded it.
  The same thing happened similarly in Miami where the City closed a 
motel with a history of repeated illegal drug activity and 
prostitution. The owner of the motel challenged the City's action under 
a taking. But the Florida State court denied their claim. But under 
this measure, H.R. 2372, the City would have been forced to defend the 
case before a Federal judge having far less of an understanding of the 
needs of local citizens.
  So join me and others and many organizations that support these 
views. Vote yes on a common sense motion to recommit this bill, and 
bring it out as one that would be far more acceptable to far more local 
governments.
  The SPEAKER pro tempore (Mr. Hastings of Washington). Does the 
gentleman from Florida (Mr. Canady) rise in opposition to the motion to 
recommit?
  Mr. CANADY of Florida. I do, Mr. Speaker.
  The SPEAKER pro tempore. The gentleman from Florida (Mr. Canady) is 
recognized for 5 minutes.
  Mr. CANADY of Florida. Mr. Speaker, I rise to urge the Members of the 
House to reject this motion to recommit. Like most of the arguments 
that have been made against this bill, this motion to recommit has 
nothing to do with the substance or purpose of the bill.
  I just ask the Members to look at what we have before us. There is a 
provision here that deals with protecting the public from prostitution 
or illegal drugs. There is nothing in the bill before the House that 
would in any way interfere with the ability of any local government to 
protect the public from prostitution or illegal drugs. That is obvious.
  This is an effort to divert attention from the real issue which is 
now before the House as we move toward passage of this bill, and that 
issue is whether American citizens and others in this country who have 
their property taken by the action of government should have meaningful 
access to the Federal courts.
  Protecting the public from prostitution or illegal drugs is not a 
taking. As a matter of fact, if one uses property for such illegal 
purposes, it is subject to forfeiture and confiscation by the 
government. Those laws are constitutional and valid. Nothing in this 
bill has anything to do with that.
  The same thing could be said about the provision controlling adult 
book stores and distribution of pornography. The interesting thing 
about that is, on that point, controlling an adult book store and 
distribution property does not constitute a taking of property.
  But I will tell my colleagues, under the rules that now exist in the 
Federal system, if someone feels that they have been restricted in such 
a business and their First Amendment rights have been violated, they go 
straight to Federal court. That happens under the existing law. But 
this bill has nothing to do with that at all.
  On with the other provisions here. There is nothing in this bill that 
undermines the ability of local government to protect against illegal 
groundwater contamination, illegal dumping, and so on, because actions 
that government takes in that regard do not constitute takings of 
property.
  So I would ask that the Members of the House focus on the purpose of 
this bill, understand that this is just an effort to divert the House 
from understanding the purpose of the bill, and let us move forward to 
reject this motion to recommit and pass the bill and establish our 
support for the principle, which should be uncontroversial in this 
country, that those people whose Federal constitutional rights have 
been violated have a right to have their day in Federal court.
  The SPEAKER pro tempore. All time has expired.
  Without objection, the previous question is ordered on the motion to 
recommit.
  There was no objection.
  The SPEAKER pro tempore. The question is on the motion to recommit.
  The question was taken; and the Speaker pro tempore announced that 
the noes appeared to have it.


                             Recorded Vote

  Mr. CONYERS. Mr. Speaker, I demand a recorded vote.
  A recorded vote was ordered.
  The SPEAKER pro tempore. Pursuant to clause 9 of rule XX, the Chair 
will reduce to 5 minutes the minimum time for any electronic vote on 
the question of passage.
  The vote was taken by electronic device, and there were--ayes 155, 
noes 254, not voting 25, as follows:

                             [Roll No. 54]

                               AYES--155

     Abercrombie
     Ackerman
     Allen
     Andrews
     Baird
     Baldacci
     Baldwin
     Barcia
     Barrett (WI)
     Becerra
     Bentsen
     Blagojevich
     Blumenauer
     Bonior
     Borski
     Boucher
     Brady (PA)
     Brown (FL)
     Brown (OH)
     Capps
     Capuano
     Cardin
     Carson
     Clay
     Clayton
     Clyburn
     Conyers
     Costello
     Coyne
     Crowley
     Cummings
     Davis (IL)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Deutsch
     Dicks
     Dingell
     Dixon
     Doggett
     Edwards
     Engel
     Eshoo
     Etheridge
     Evans
     Farr
     Fattah
     Filner
     Forbes
     Ford
     Gejdenson
     Gephardt
     Gonzalez
     Gutierrez
     Hill (IN)
     Hilliard
     Hinchey
     Hoeffel
     Holt
     Hooley
     Inslee
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson, E. B.
     Jones (OH)
     Kanjorski
     Kaptur
     Kennedy
     Kildee
     Kilpatrick
     Kind (WI)
     Kleczka
     Kucinich
     Lantos
     Larson
     Lee
     Levin
     Lipinski
     Lofgren
     Lowey
     Luther
     Maloney (CT)
     Maloney (NY)
     Markey
     Matsui
     McCarthy (MO)
     McCarthy (NY)
     McDermott
     McGovern
     McKinney

[[Page H1113]]


     McNulty
     Meehan
     Meek (FL)
     Meeks (NY)
     Menendez
     Millender-McDonald
     Miller, George
     Minge
     Mink
     Moakley
     Mollohan
     Moore
     Nadler
     Napolitano
     Neal
     Oberstar
     Obey
     Olver
     Owens
     Pallone
     Pascrell
     Pastor
     Pelosi
     Peterson (MN)
     Phelps
     Pomeroy
     Price (NC)
     Rahall
     Rangel
     Reyes
     Rivers
     Rodriguez
     Roybal-Allard
     Sabo
     Sanders
     Sawyer
     Schakowsky
     Scott
     Serrano
     Sherman
     Slaughter
     Smith (WA)
     Spratt
     Stabenow
     Strickland
     Stupak
     Tauscher
     Thompson (CA)
     Thompson (MS)
     Thurman
     Tierney
     Towns
     Udall (CO)
     Udall (NM)
     Velazquez
     Visclosky
     Waters
     Watt (NC)
     Waxman
     Weiner
     Wexler
     Wise
     Woolsey

                               NOES--254

     Aderholt
     Armey
     Baca
     Bachus
     Baker
     Ballenger
     Barr
     Barrett (NE)
     Bartlett
     Barton
     Bass
     Bateman
     Bereuter
     Berkley
     Berry
     Bilbray
     Bilirakis
     Bishop
     Bliley
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bono
     Boswell
     Boyd
     Brady (TX)
     Bryant
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Campbell
     Canady
     Cannon
     Castle
     Chabot
     Chambliss
     Clement
     Coble
     Coburn
     Collins
     Combest
     Condit
     Cooksey
     Cox
     Cramer
     Cubin
     Cunningham
     Danner
     Davis (FL)
     Davis (VA)
     Deal
     DeLay
     DeMint
     Diaz-Balart
     Dickey
     Dooley
     Doolittle
     Doyle
     Dreier
     Duncan
     Dunn
     Ehlers
     Ehrlich
     Emerson
     English
     Everett
     Ewing
     Fletcher
     Foley
     Fossella
     Fowler
     Frank (MA)
     Franks (NJ)
     Frelinghuysen
     Frost
     Gallegly
     Ganske
     Gekas
     Gibbons
     Gilchrest
     Gillmor
     Gilman
     Goode
     Goodlatte
     Goodling
     Gordon
     Goss
     Graham
     Granger
     Green (TX)
     Green (WI)
     Gutknecht
     Hall (OH)
     Hall (TX)
     Hansen
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Herger
     Hill (MT)
     Hilleary
     Hobson
     Hoekstra
     Holden
     Horn
     Hostettler
     Houghton
     Hoyer
     Hulshof
     Hunter
     Hutchinson
     Isakson
     Istook
     Jenkins
     John
     Johnson (CT)
     Johnson, Sam
     Jones (NC)
     Kelly
     King (NY)
     Kingston
     Knollenberg
     Kolbe
     Kuykendall
     LaHood
     Lampson
     Largent
     Latham
     LaTourette
     Lazio
     Leach
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas (KY)
     Lucas (OK)
     Manzullo
     Martinez
     Mascara
     McCrery
     McHugh
     McInnis
     McIntosh
     McIntyre
     McKeon
     Metcalf
     Mica
     Miller (FL)
     Moran (KS)
     Morella
     Murtha
     Nethercutt
     Ney
     Northup
     Norwood
     Nussle
     Ortiz
     Ose
     Oxley
     Packard
     Paul
     Pease
     Peterson (PA)
     Petri
     Pickering
     Pickett
     Pitts
     Pombo
     Porter
     Portman
     Pryce (OH)
     Quinn
     Radanovich
     Ramstad
     Regula
     Reynolds
     Riley
     Roemer
     Rogan
     Rogers
     Rohrabacher
     Ros-Lehtinen
     Rothman
     Roukema
     Royce
     Ryan (WI)
     Ryun (KS)
     Salmon
     Sanchez
     Sandlin
     Sanford
     Saxton
     Scarborough
     Schaffer
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Shays
     Sherwood
     Shimkus
     Shows
     Shuster
     Simpson
     Sisisky
     Skeen
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Snyder
     Souder
     Spence
     Stearns
     Stenholm
     Stump
     Sununu
     Sweeney
     Talent
     Tancredo
     Tanner
     Tauzin
     Taylor (MS)
     Taylor (NC)
     Terry
     Thomas
     Thornberry
     Thune
     Tiahrt
     Toomey
     Traficant
     Turner
     Upton
     Vitter
     Walden
     Walsh
     Wamp
     Watkins
     Watts (OK)
     Weldon (FL)
     Weldon (PA)
     Weller
     Weygand
     Wicker
     Wilson
     Wolf
     Wu
     Young (AK)
     Young (FL)

                             NOT VOTING--25

     Archer
     Berman
     Biggert
     Chenoweth-Hage
     Cook
     Crane
     Greenwood
     Hastings (FL)
     Hinojosa
     Hyde
     Kasich
     Klink
     LaFalce
     Lewis (GA)
     McCollum
     Miller, Gary
     Moran (VA)
     Myrick
     Payne
     Rush
     Skelton
     Stark
     Vento
     Whitfield
     Wynn

                              {time}  1809

  Mr. GANSKE and Mr. SHAYS changed their vote from ``aye'' to ``no.''
  So the motion to recommit was rejected.
  The result of the vote was announced as above recorded.
  The SPEAKER pro tempore (Mr. Hastings of Washington). The question is 
on the passage of the bill.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.
  Mr. CONYERS. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. This will be a 5-minute vote.
  The vote was taken by electronic device, and there were--yeas 226, 
nays 182, not voting 26, as follows:

                             [Roll No. 55]

                               YEAS--226

     Aderholt
     Armey
     Baca
     Baker
     Baldacci
     Ballenger
     Barr
     Barrett (NE)
     Bartlett
     Barton
     Bateman
     Berkley
     Berry
     Bilirakis
     Bishop
     Bliley
     Blunt
     Boehner
     Bonilla
     Bono
     Boswell
     Boyd
     Brady (TX)
     Bryant
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Campbell
     Canady
     Cannon
     Chabot
     Chambliss
     Clement
     Coble
     Coburn
     Collins
     Combest
     Condit
     Cramer
     Cubin
     Cunningham
     Danner
     Davis (VA)
     Deal
     DeLay
     DeMint
     Diaz-Balart
     Dickey
     Dooley
     Doolittle
     Doyle
     Dreier
     Duncan
     Dunn
     Edwards
     Ehrlich
     Emerson
     English
     Etheridge
     Everett
     Ewing
     Fletcher
     Foley
     Ford
     Fossella
     Fowler
     Franks (NJ)
     Frost
     Gallegly
     Gekas
     Gibbons
     Gillmor
     Goode
     Goodlatte
     Goodling
     Gordon
     Graham
     Granger
     Green (TX)
     Green (WI)
     Gutknecht
     Hall (OH)
     Hall (TX)
     Hansen
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Herger
     Hill (IN)
     Hill (MT)
     Hilleary
     Hilliard
     Hobson
     Hoekstra
     Holden
     Hostettler
     Houghton
     Hoyer
     Hulshof
     Hunter
     Hutchinson
     Isakson
     Jefferson
     Jenkins
     John
     Johnson, E. B.
     Johnson, Sam
     Jones (NC)
     King (NY)
     Kingston
     Knollenberg
     Kolbe
     Kuykendall
     LaHood
     Lampson
     Largent
     Latham
     LaTourette
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas (KY)
     Lucas (OK)
     Maloney (NY)
     Manzullo
     Martinez
     Mascara
     McCrery
     McHugh
     McInnis
     McIntosh
     McIntyre
     McKeon
     Meeks (NY)
     Mica
     Miller (FL)
     Moran (KS)
     Murtha
     Nethercutt
     Ney
     Northup
     Norwood
     Nussle
     Ortiz
     Ose
     Oxley
     Packard
     Pease
     Peterson (PA)
     Petri
     Phelps
     Pickering
     Pickett
     Pombo
     Pryce (OH)
     Radanovich
     Reynolds
     Riley
     Roemer
     Rogan
     Rogers
     Rohrabacher
     Ros-Lehtinen
     Rothman
     Royce
     Ryan (WI)
     Ryun (KS)
     Salmon
     Sandlin
     Sanford
     Scarborough
     Schaffer
     Scott
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Sherwood
     Shimkus
     Shows
     Shuster
     Simpson
     Sisisky
     Skeen
     Smith (MI)
     Smith (TX)
     Souder
     Spence
     Stearns
     Stenholm
     Stump
     Sununu
     Sweeney
     Talent
     Tancredo
     Tanner
     Tauzin
     Taylor (MS)
     Taylor (NC)
     Terry
     Thomas
     Thompson (MS)
     Thornberry
     Thune
     Tiahrt
     Toomey
     Traficant
     Turner
     Upton
     Vitter
     Walden
     Wamp
     Watkins
     Watts (OK)
     Weldon (FL)
     Weller
     Weygand
     Wicker
     Wilson
     Young (AK)
     Young (FL)

                               NAYS--182

     Abercrombie
     Ackerman
     Allen
     Andrews
     Bachus
     Baird
     Baldwin
     Barcia
     Barrett (WI)
     Bass
     Becerra
     Bentsen
     Bereuter
     Bilbray
     Blagojevich
     Blumenauer
     Boehlert
     Bonior
     Borski
     Boucher
     Brady (PA)
     Brown (FL)
     Brown (OH)
     Capps
     Capuano
     Cardin
     Carson
     Castle
     Clay
     Clayton
     Clyburn
     Conyers
     Cooksey
     Costello
     Coyne
     Crowley
     Cummings
     Davis (FL)
     Davis (IL)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Deutsch
     Dicks
     Dingell
     Dixon
     Doggett
     Ehlers
     Engel
     Eshoo
     Evans
     Farr
     Fattah
     Filner
     Forbes
     Frank (MA)
     Frelinghuysen
     Ganske
     Gejdenson
     Gephardt
     Gilchrest
     Gilman
     Gonzalez
     Goss
     Gutierrez
     Hinchey
     Hoeffel
     Holt
     Hooley
     Horn
     Inslee
     Jackson (IL)
     Jackson-Lee (TX)
     Johnson (CT)
     Jones (OH)
     Kanjorski
     Kaptur
     Kelly
     Kennedy
     Kildee
     Kilpatrick
     Kind (WI)
     Kleczka
     Kucinich
     LaFalce
     Lantos
     Larson
     Lazio
     Leach
     Lee
     Levin
     Lofgren
     Lowey
     Luther
     Maloney (CT)
     Markey
     Matsui
     McCarthy (MO)
     McCarthy (NY)
     McDermott
     McGovern
     McKinney
     McNulty
     Meehan
     Meek (FL)
     Menendez
     Metcalf
     Millender-McDonald
     Miller, George
     Minge
     Mink
     Moakley
     Mollohan
     Moore
     Moran (VA)
     Morella
     Nadler
     Napolitano
     Neal
     Oberstar
     Obey
     Olver
     Owens
     Pallone
     Pascrell
     Pastor
     Pelosi
     Peterson (MN)
     Pitts
     Pomeroy
     Porter
     Portman
     Price (NC)
     Quinn
     Rahall
     Ramstad
     Rangel
     Regula
     Reyes
     Rivers
     Rodriguez
     Roukema
     Roybal-Allard
     Sabo
     Sanchez
     Sanders
     Sawyer
     Saxton
     Schakowsky
     Serrano
     Shays
     Sherman
     Slaughter
     Smith (NJ)
     Smith (WA)
     Snyder
     Spratt
     Stabenow
     Strickland
     Stupak
     Tauscher
     Thompson (CA)
     Thurman
     Tierney
     Towns
     Udall (CO)
     Udall (NM)
     Velazquez
     Visclosky
     Walsh
     Waters
     Watt (NC)
     Waxman
     Weiner
     Weldon (PA)
     Wexler
     Wise
     Wolf
     Woolsey
     Wu
     Wynn

                             NOT VOTING--26

     Archer
     Berman
     Biggert
     Chenoweth-Hage
     Cook
     Cox
     Crane
     Greenwood
     Hastings (FL)
     Hinojosa
     Hyde
     Istook

[[Page H1114]]


     Kasich
     Klink
     Lewis (GA)
     Lipinski
     McCollum
     Miller, Gary
     Myrick
     Paul
     Payne
     Rush
     Skelton
     Stark
     Vento
     Whitfield

                              {time}  1816

  So the bill was passed.
  The result of the vote was announced as above recorded.
  A motion to reconsider was laid on the table.
  Stated for:
  Mr. HYDE. Mr. Speaker, on rollcall No. 55, had I been present, I 
would have voted ``yea.''
  Mr. COX. Mr. Speaker, on rollcall No. 55, had I been present, I would 
have vote ``yea.''

                          ____________________