[Congressional Record (Bound Edition), Volume 145 (1999), Part 1]
[Senate]
[Pages 1081-1082]
[From the U.S. Government Publishing Office, www.gpo.gov]



               THE PRIVATE PROPERTY FAIRNESS ACT OF 1999

  Mr. HAGEL. Mr. President, I have introduced S. 246, the Private 
Property Fairness Act of 1999. This bill will help ensure that when the 
Government issues regulations for the benefit of the public as a whole, 
it does not saddle just a few landowners with the whole cost of 
compliance. This bill will help enforce the U.S. Constitution's 
guarantee that the Federal Government cannot take private property 
without paying just compensation to the owner.

[[Page 1082]]

  Recent record low prices received by American agricultural producers 
has prompted great concern about the future of family farmers and 
ranchers. What we must remember is that government regulations are 
unfairly burdening this vital sector--hitting family farmers the 
hardest.
  The dramatic growth in Federal regulation in recent decades has 
focused attention on a very murky area of property law, a regulatory 
area in which the law of takings is not yet settled to the satisfaction 
of most Americans.
  The bottom line is that the law in this area is unfair. For example, 
if the Government condemns part of a farm to build a highway, it has to 
pay the farmer for the value of his land. But if the Government 
requires that same farmer stop growing crops on that same land in order 
to protect endangered species or conserve wetlands, the farmer gets no 
compensation. In both situations the Government has acted to benefit 
the general public and, in the process, has imposed a cost on the 
farmer. In both cases, the land is taken out of production and the 
farmer loses income. But only in the highway example is the farmer 
compensated for his loss. In the regulatory example, the farmer, or any 
other landowner, has to absorb all of the cost himself. This is not 
fair.
  The legislation I am introducing today is an important step toward 
providing relief from these so-called regulatory takings. My bill is a 
narrowly tailored approach that will make a real difference for 
property owners across America. It protects private property rights in 
two ways. First, it puts in place procedures that will stop or minimize 
takings by the Federal Government before they occur. The Government 
would have to jump a much higher hurdle before it can restrict the use 
of someone's privately owned property. For the first time, the Federal 
Government will have to determine in advance how its actions will 
impact the property owner, not just the wetland or the endangered 
species. This bill also would require the Federal Government to look 
for options other than restricting the use of private property to 
achieve its goal.
  Second, if heavy Government regulations diminish the value of private 
property, this bill would allow the landowners to plead their case in a 
Federal district court, instead of forcing them to seek relief. This 
bill makes the process easier, less costly, and more accessible and 
accountable so all citizens can fully protect their property rights.
  For too long, Federal regulators have made private property owners 
bear the burdens and the costs of Government land use decisions. The 
result has been that real people suffer.
  Joe Jeffrey is a farmer in Lexington, NE. Like most Americans, he is 
proud of his land. He believed his property was his to use and control 
as he saw fit. So, after 12 years of regulatory struggles, Mr. Jeffrey 
got fed up and decided to lease out his land. The Central Nebraska 
Public Power and Irrigation District now has use of the property for 
the next 17 years. The Government's regulatory intrusion left Mr. 
Jeffrey few other options.
  Joe Jeffrey first met the U.S. Fish and Wildlife Service and the Army 
Corps of Engineers in 1987. Mr. Jeffrey's introduction to the long arm 
of the Federal bureaucracy was in the form of wetlands regulations. Mr. 
Jeffrey was notified that he had to destroy two dikes on his land 
because they were constructed without the proper permits. Nearly 2 
years later, the corps partially changed its mind and allowed Mr. 
Jeffrey to reconstruct one of the dikes because the corps lacked 
authority to make him destroy it in the first place.
  Then floods damaged part of Mr. Jeffrey's irrigated pastureland and 
changed the normal water channel. Mr. Jeffrey set out to return the 
channel to its original course by moving sand that the flood had 
shifted. But the Government said ``no.'' The corps told him he had to 
give public notice before he could repair his own property.
  Then came the Endangered Species Act.
  Neither least terns nor piping plovers--both federally protected 
endangered species--have ever nested on Mr. Jeffrey's property. But 
that didn't stop the regulators. The U.S. Fish and Wildlife Service 
wanted to designate Mr. Jeffrey's property as ``critical habitat'' for 
these protected species.
  The bureaucrats could not even agree among themselves on what they 
wanted done. The Nebraska Department of Environmental Control wanted 
the area re-vegetated. But the U.S. Fish and Wildlife Service wanted 
the area kept free of vegetation. Mr. Jeffrey was caught in the middle.
  This is a real regulatory horror story. And there's more.
  Today--12 years after his regulatory struggle began--Mr. Jeffrey is 
faced with eroded pastureland that cannot be irrigated and cannot be 
repaired without significant personal expense. The value of Mr. 
Jeffrey's land has been diminished by the Government's regulatory 
intrusion--but he has not been compensated. In fact, he has had to 
spend money from his own pocket to comply with the regulations. The 
Fish and Wildlife Service asked Mr. Jeffrey to modify his center pivot 
irrigation system to negotiate around the eroded area--at a personal 
cost of $20,000. And the issue is still not resolved.
  Mr. President, we do not need more stories like Joe Jeffrey's in 
America. Our Constitution guarantees our people's rights. Congress must 
act to uphold those rights and guarantee them in practice, not just in 
theory. Government regulation has gone too far. We must make it 
accountable to the people. Government should be accountable to the 
people, not the people accountable to the Government.
  What this issue comes down to is fairness. It is simply not fair and 
it is not right for the Federal Government to have the ability to 
restrict the use of privately owned property without compensating the 
owner. It violates the principles this country was founded on. This 
legislation puts some justice back into the system. It reins in 
regulatory agencies and gives the private property owner a voice in the 
process. It makes it easier for citizens to appeal any restrictions 
imposed on their land or property. It is the right thing to do. It is 
the just and fair thing to do.

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