[Senate Report 105-242]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 316
105th Congress                                                   Report
                                 SENATE

 2d Session                                                     105-242
_______________________________________________________________________


 
         THE PRIVATE PROPERTY RIGHTS IMPLEMENTATION ACT OF 1998

                                _______
                                

                  July 8, 1998.--Ordered to be printed

_______________________________________________________________________


Mr. Hatch, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 1534]

    The Committee on the Judiciary, to which was referred the 
bill (H.R. 1534) 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, having considered the same, reports 
favorably thereon, with an amendment in the nature of a 
substitute, and recommends that the bill, as amended, do pass.


                                CONTENTS

                                                                   Page
  I. Purposes and summary.............................................6
 II. Legislative history..............................................7
III. Background and the need for legislation..........................8
 IV. Critics' contentions concerning the ``ripeness'' sections of the 
     bill............................................................19
  V. Section-by-section analysis.....................................24
 VI. Cost estimate...................................................26
VII. Regulatory impact statement.....................................28
VIII.Minority views of Senators Leahy, Kennedy, Biden, Kohl, Feinstein, 
     Feingold, Durbin, and Torricelli................................29
 IX. Changes in existing law made by the bill, as reported...........59

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Citizens Access to Justice Act of 
1998''.

SEC. 2. FINDINGS.

  Congress finds that--
          (1) property rights have been abrogated by the application of 
        laws, regulations, and other actions by all levels of 
        government that adversely affect the value and the ability to 
        make reasonable use of private property;
          (2) certain provisions of sections 1346 and 1402 and chapter 
        91 of title 28, United States Code (commonly known as the 
        Tucker Act), that delineate the jurisdiction of courts hearing 
        property rights claims, frustrate the ability of a property 
        owner to obtain full relief for violation founded upon the 
        fifth and fourteenth amendments of the United States 
        Constitution;
          (3) current law--
                  (A) has no sound basis for splitting jurisdiction 
                between two courts in cases where constitutionally 
                protected property rights are at stake;
                  (B) adds to the complexity and cost of takings and 
                litigation, adversely affecting taxpayers and property 
                owners;
                  (C) forces a property owner, who seeks just 
                compensation from the Federal Government, to elect 
                between equitable relief in the district court and 
                monetary relief (the value of the property taken) in 
                the United States Court of Federal Claims;
                  (D) is used to urge dismissal in the district court 
                in complaints against the Federal Government, on the 
                ground that the plaintiff should seek just compensation 
                in the Court of Federal Claims;
                  (E) is used to urge dismissal in the Court of Federal 
                Claims in complaints against the Federal Government, on 
                the ground that the plaintiff should seek equitable 
                relief in district court; and
                  (F) forces a property owner to first pay to litigate 
                an action in a State court, before a Federal judge can 
                decide whether local government has denied property 
                rights safeguarded by the United States Constitution;
          (4) property owners cannot fully vindicate property rights in 
        one lawsuit and their claims may be time barred in a subsequent 
        action;
          (5) property owners should be able to fully recover for a 
        taking of their private property in one court;
          (6) certain provisions of section 1346 and 1402 and chapter 
        91 of title 28, United States Code (commonly known as the 
        Tucker Act) should be amended, giving both the district courts 
        of the United States and the Court of Federal Claims 
        jurisdiction to hearall claims relating to property rights in 
complaints against the Federal Government;
          (7) section 1500 of title 28, United States Code, which 
        denies the Court of Federal Claims jurisdiction to entertain a 
        suit which is pending in another court and made by the same 
        plaintiff, should be repealed;
          (8) Federal and local authorities, through complex, costly, 
        repetitive and unconstitutional permitting, variance, and 
        licensing procedures, have denied property owners their fifth 
        and fourteenth amendment rights under the United States 
        Constitution to the use, enjoyment, and disposition of, and 
        exclusion of others from, their property, and to safeguard 
        those rights, there is a need to determine what constitutes a 
        final decision of an agency in order to allow claimants the 
        ability to protect their property rights in a court of law;
          (9) a Federal judge should decide the merits of cases where a 
        property owner seeks redress solely for infringements of rights 
        safeguarded by the United States Constitution, and where no 
        claim of a violation of State law is alleged; and
          (10) certain provisions of sections 1343, 1346, and 1491 of 
        title 28, United States Code, should be amended to clarify when 
        a claim for redress of constitutionally protected property 
        rights is sufficiently ripe so a Federal judge may decide the 
        merits of the allegations.

SEC. 3. PURPOSES.

  The purposes of this Act are to--
          (1) establish a clear, uniform, and efficient judicial 
        process whereby aggrieved property owners can obtain 
        vindication of property rights guaranteed by the fifth and 
        fourteenth amendments to the United States Constitution and 
        this Act;
          (2) amend the Tucker Act, including the repeal of section 
        1500 of title 28, United States Code;
          (3) rectify the unduly onerous and expensive requirement that 
        a property owner, seeking redress under section 1979 of the 
        Revised Statutes of the United States (42 U.S.C. 1983) for the 
        infringement of property rights protected by the fifth and 
        fourteenth amendments of the United States Constitution, is 
        required to first litigate Federal constitutional issues in a 
        State court before obtaining access to the Federal courts; and
          (4) provide for uniformity in the application of the ripeness 
        doctrine in cases where constitutionally protected property 
        rights are allegedly infringed, by providing that a final 
        agency decision may be adjudicated by a Federal court on the 
        merits after--
                  (A) the pertinent government body denies a meaningful 
                application to develop the land in question; and
                  (B)(i) the property owner seeks a waiver by or brings 
                an appeal to an administrative agency from such denial; 
                and
                  (ii) such waiver or appeal is not approved.

SEC. 4. DEFINITIONS.

  In this Act, the term--
          (1) ``agency action'' means any action, inaction, or decision 
        taken by a Federal agency or other government agency that at 
        the time of such action, inaction, or decision adversely 
        affects private property rights;
          (2) ``district court''--
                  (A) means a district court of the United States with 
                appropriate jurisdiction; and
                  (B) includes the United States District Court of 
                Guam, the United States District Court of the Virgin 
                Islands, or the District Court for the Northern Mariana 
                Islands;
          (3) ``Federal agency'' means a department, agency, 
        independent agency, or instrumentality of the United States, 
        including any military department, Government corporation, 
        Government-controlled corporation, or other establishment in 
        the executive branch of the United States Government;
          (4) ``owner'' means the owner or possessor of property or 
        rights in property at the time the taking occurs, including 
        when--
                  (A) the statute, regulation, rule, order, guideline, 
                policy, or action is passed or promulgated; or
                  (B) the permit, license, authorization, or 
                governmental permission is denied or suspended;
          (5) ``private property'' or ``property'' means all interests 
        constituting property, as defined by Federal or State law, 
        protected under the fifth and fourteenth amendments to the 
        United States Constitution; and
          (6) ``taking of private property'', ``taking'', or ``take'' 
        means any action whereby restricting the ownership, 
        alienability, possession, or use of private property is an 
        object of that action and is taken so as to require 
        compensation under the fifth amendment to the United States 
        Constitution, including by physical invasion, regulation, 
        exaction, condition, or other means.

SEC. 5. PRIVATE PROPERTY ACTIONS.

  (a) In General.--An owner may file a civil action under this section 
to challenge the validity of any Federal agency action as a violation 
of the fifth amendment to the United States Constitution in a district 
court or the United States Court of Federal Claims.
  (b) Concurrent Jurisdiction.--Notwithstanding any other provision of 
law and notwithstanding the issues involved, the relief sought, or the 
amount in controversy, the district court and the United States Court 
of Federal Claims shall each have concurrent jurisdiction over both 
claims for monetary relief and claims seeking invalidation of any Act 
of Congress or any regulation of a Federal agency affecting private 
property rights.
  (c) Election.--The plaintiff may elect to file an action under this 
section in a district court or the United States Court of Federal 
Claims.
  (d) Waiver of Sovereign Immunity.--This section constitutes express 
waiver of the sovereign immunity of the United States with respect to 
an action filed under this section.
  (e) Appeals.--The United States Court of Appeals for the Federal 
Circuit shall have exclusive jurisdiction of any action filed under 
this section, regardless of whether the jurisdiction of such action is 
based in whole or part under this section.
  (f) Statute of Limitations.--The statute of limitations for any 
action filed under this section shall be 6 years after the date of the 
taking of private property.
  (g) Attorneys' Fees and Costs.--The court, in issuing any final order 
in any action filed under this section, shall award costs of litigation 
(including reasonable attorneys' fees) to any prevailing plaintiff.

SEC. 6. JURISDICTION OF UNITED STATES COURT OF FEDERAL CLAIMS AND 
                    UNITED STATES DISTRICT COURTS.

  (a) United States Court of Federal Claims.--
          (1) Jurisdiction.--Section 1491(a) of title 28, United States 
        Code, is amended--
                  (A) in paragraph (1) by amending the first sentence 
                to read as follows: ``The United States Court of 
                Federal Claims shall have jurisdiction to render 
                judgment upon any claim against the United States for 
                monetary relief founded either upon the Constitution or 
                any Act of Congress or any regulation of an executive 
                department or upon any express or implied contract with 
                the United States, in cases not sounding in tort, or 
                for invalidation of any Act of Congress or any 
                regulation of an executive department under section 5 
                of the Citizens Access to Justice Act of 1998.'';
                  (B) in paragraph (2) by inserting before the first 
                sentence the following: ``In any case within its 
                jurisdiction, the Court of Federal Claims shall have 
                the power to grant injunctive and declaratory relief 
                when appropriate.''; and
                  (C) by adding at the end the following new 
                paragraphs:
          ``(3) In cases otherwise within its jurisdiction, the Court 
        of Federal Claims shall also have supplemental jurisdiction, 
        concurrent with the courts designated under section 1346(b), to 
        render judgment upon any related tort claim authorized under 
        section 2674.
          ``(4) In proceedings within the jurisdiction of the Court of 
        Federal Claims which constitute judicial review of agency 
        action (rather than de novo proceedings), the provisions of 
        section 706 of title 5 shall apply.
          ``(5) 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 to use the property 
                has been submitted but has not been approved, and the 
                party seeking redress has applied for one appeal or 
                waiver which has not been approved, 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, if it cannot provide the relief 
        requested, or if application or reapplication to use the 
        property would be futile. Nothing in this paragraph alters the 
        substantive law of takings of property, including the burden of 
        proof borne by the plaintiff.''.
          (2) Pendency of claims in other courts.--
                  (A) In general.--Section 1500 of title 28, United 
                States Code is repealed.
                  (B) Technical and conforming amendment.--The table of 
                sections for chapter 91 of title 28, United States 
                Code, is amended by striking out the item relating to 
                section 1500.
  (b) District Court Jurisdiction.--
          (1) Citizen access to justice action.--Section 1346(a) of 
        title 28, United States Code, is amended by adding after 
        paragraph (2) the following:
          ``(3) Any civil action filed under section 5 of the Citizens 
        Access to Justice Act of 1998.''.
          (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 to use the property has been 
        submitted but has not been approved, and the party seeking 
        redress has applied for one appeal or waiver which has not been 
        approved, 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, if it cannot provide the relief requested, or if application 
or reapplication to use the property would be futile.
  ``(3) Nothing in this subsection alters the substantive law of 
takings of property, including the burden of proof borne by the 
plaintiff.''.
  (c) District Court Civil Rights Jurisdiction; Abstention.--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 where no 
claim of a violation of a State law, right, or privilege is alleged, 
and where a parallel proceeding in State court arising out of the same 
operative facts as the district court proceeding is not pending.
  ``(d) Where 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 
        regarding the extent of permissible uses on the property that 
        has been allegedly infringed or taken;
          ``(ii)(I) one meaningful application, as defined by the 
        locality concerned within that State or territory, to use the 
        property has been submitted but has not been approved, and the 
        party seeking redress has applied for one appeal or waiver 
        which has not been approved, where 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 the locality 
        concerned within that State or territory, to use the property 
        has been submitted but has not been approved, 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 not approved, 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 or waiver with respect to the disapproval, 
                which has not been approved, where the applicable 
                statute, ordinance, custom, or usage provides a 
                mechanism of appeal or waiver by an administrative 
                agency; and
          ``(iii) in a case involving the uses of real property, where 
        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.
    ``(B) The party seeking redress shall not be required to apply for 
an appeal or waiver described in paragraph (1)(B) 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 this subsection, a final decision shall not 
require the party seeking redress to 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. 7. DUTY OF NOTICE TO OWNERS.

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

SEC. 8. RULES OF CONSTRUCTION.

    Nothing in this Act shall be construed to interfere with the 
authority of any State to create additional property rights.

SEC. 9. EFFECTIVE DATE.

    This Act shall take effect on the date of enactment of this Act and 
shall apply to any agency action that occurs on or after such date.

                        I. Purposes and Summary

    H.R. 1534 primarily addresses the problem of providing 
property owners fair access to Federal courts to vindicate 
their Federal constitutional rights. The bill is thus merely 
procedural and does not create new substantive rights.
    In situations where other than fifth amendment property 
rights are sought to be enforced (such as first amendment 
rights, for example), aggrieved parties generally may file in a 
single Federal forum without having to exhaust State and local 
procedures. This is not the case for property owners. Often 
they must exhaust all State remedies with the result that they 
may have to wait for over a decade before their rights are 
allowed to be vindicated in Federal court--if they get there at 
all. Moreover, the Federal jurisdiction over property rights 
claims against Federal agencies and executive branch 
departments is in a muddle. In these types of cases, property 
owners face onerous procedural hurdles unique in Federal 
litigation.
    Consequently, H.R. 1534 has two purposes. The first is to 
provide private property owners claiming a violation of the 
fifth amendment's taking clause some certainty as to when they 
may file the claim in Federal court. This is accomplished by 
addressing the procedural hurdles of the ripeness and 
abstention doctrines which currently prevent them from having 
fair and equal access to Federal court. H.R. 1534 defines when 
a final agency decision has occurred for purposes of meeting 
the ripeness requirement and prohibits a Federal judge from 
abstaining from or relinquishing jurisdiction when the case 
does not allege any violation of a State law, right, or 
privilege. Thus, H.R. 1534 serves as a vehicle for overcoming 
judicial reluctance to review takings claims based on the 
ripeness and abstention doctrines.
    The second purpose of the bill is to clarify the 
jurisdiction between the Court of Federal Claims in Washington, 
DC, and the regional Federal district courts over Federal fifth 
amendment takings claims. The Tucker Act grants the Court of 
Federal Claims exclusive jurisdiction over takings claims 
seeking compensation. Thus, property owners seeking equitable 
relief must file in the appropriate Federal district court. 
This division between law and equity is archaic and results in 
burdensome delays as property owners who seek both types of 
relief are ``shuffled'' from one court to the other to 
determine which court is the proper forum for review. H.R. 1534 
resolves this matter by simply giving both courts concurrent 
jurisdiction over takings claims, thus allowing both legal and 
equitable relief to be granted in a single forum.

                        II. Legislative History

    H.R. 1534 was introduced into the 105th Congress by 
Representative Elton Gallegly on May 6, 1997. Two hundred and 
thirty-seven Congressmen joined Representative Gallegly as 
cosponsors, 133 of whom were former State and local 
officeholders. H.R. 1534 was referred to the House Committee on 
the Judiciary Subcommittee on Courts and Intellectual Property. 
The Subcommittee held a legislative hearing on H.R. 1534 on 
September 25, 1997. Testimony was received from five witnesses, 
who collectively, represented Federal and State attorneys 
general offices, the National Association of Home Builders, and 
a preeminent land-use professor. On September 30, 1997, the 
Subcommittee on Courts and Intellectual Property met in open 
session and ordered reported the bill, H.R. 1534, as amended. 
On October 7, 1997, the House Committee on the Judiciary met in 
open session and ordered reported favorably the bill, H.R. 
1534, with amendment, by a recorded vote of 18 to 10. On 
October 22, 1997, the House as a whole considered and accepted 
a manager's substitute to H.R. 1534. An additional amendment, 
offered by Representative Traficant, was passed by the House. 
The House then passed H.R. 1534 as amended by a recorded vote 
of 248 to 178. On October 23, 1997, the House requested the 
concurrence of the Senate.
    Coinciding with the House's consideration of H.R. 1534, the 
Senate Committee on the Judiciary considered concurrent 
legislation introduced on September 23, 1997, by Senators 
Coverdell and Landrieu, S. 1204, the ``Property Owners' Access 
to Justice Act,'' and related legislation introduced on October 
6, 1997, by Chairman Hatch and Senator Reid, S. 1256, the 
``Citizen Access to Justice Act''. Thirty-one Senators 
cosponsored S. 1204 and 11 Senators cosponsored S. 1256. On 
October 7, 1997, the Committee held a hearing on the property 
rights issues addressed by the bills and heard testimony from 
Congressman Lamar Smith; mayor Hal Daub, mayor of Omaha, NE; 
Mayor Larry Curtis, mayor of Ames, IA; Mr. Jeff Garvin, 
attorney and representative of Florida property owner, Mr. 
Richard Reahard; Mr. John Delaney, a respected Washington, DC, 
property rights attorney; and Mrs. Nancie Marzulla, president, 
Defenders of Property Rights.
    H.R. 1534 was referred to the Senate Committee on the 
Judiciary on November 13, 1997. On February 26, 1998, a motion 
to favorably report a substitute for H.R. 1534, offered by 
Chairman Hatch, was approved 10 to 8 by the Judiciary 
Committee. Chairman Hatch's substitute bill included the 
substance of H.R. 1534, as passed by the House, and 
incorporated additional language which resolves a Federal court 
jurisdictional problem known as the ``Tucker Act Shuffle.''

              III. Background and the Need for Legislation

                      a. The ``ripeness'' problem

    The U.S. Constitution protects individuals from having 
their private property ``taken'' by the Government without 
receiving just compensation. U.S. Constitution, amendment V. A 
complex body of law has developed from the takings clause of 
the fifth amendment and is used by Federal courts to determine 
whether a ``taking'' has occurred. In conjunction with this 
complex body of takings law, an equally complex set of 
procedural doctrines has also developed for use by Federal 
courts to determine whether the core substantive issues 
involved in the takings claim are ready to be heard. These 
procedural doctrines are known as the doctrines of ``ripeness'' 
and ``abstention.''
    Under current case law, a takings claim must be ``ripe'' in 
order to be heard in Federal court. In a key decision entitled 
Williamson County Planning Comm'n v. Hamilton Bank of Johnson 
City, 473 U.S. 172, 87 L.Ed. 2d 126, 105 S. Ct. 3108 (1985), 
the Supreme Court attempted to clarify the principles of the 
ripeness doctrine. The Court stated that a takings claimant 
must show: (1) that there has been issued a ``final decision 
regarding the application of the regulations to the property at 
issue'' from ``the government entity charged with implementing 
the regulations,'' id. at 186, and (2) that the claimant 
requested ``compensation through theprocedures the State has 
provided for doing so.'' Id. at 194. A takings plaintiff must meet both 
requirements before the case will be considered ripe for Federal 
adjudication; if either has not been met, then the claimant will be 
procedurally barred from bringing such a claim in Federal court.
    Unfortunately, the lower court decisions which subsequently 
have attempted to apply the ripeness principles set forth in 
Williamson County have only served to create much confusion 
over when a claim becomes ripe. Property owners have been left 
with no clear understanding of how many proposals or 
applications must be submitted before their takings claim would 
be considered ripe. For example, in Southview Assocs. v. 
Bongartz, 980 F.2d 84, 92 (2d Cir. 1992), cert. denied, 507 
U.S. 987 (1993), the court decided a takings claim was not ripe 
because the landowner ``did not attempt to modify the location 
of the units or otherwise seek to revise its application.'' The 
court failed to decide how many reapplications would be 
necessary to reach the merits.
    In Schulze v. Milne, 849 F.Supp. 708 (N.D. Cal. 1994), 
aff'd in part, rev'd in part on other grounds, 98 F.3d 1346 
(9th Cir. 1996), property owners submitted a total of thirteen 
(13) revised plans over 3 years to renovate their home. Each 
time they submitted a plan ``in compliance with all applicable 
zoning laws,'' local officials nonetheless ``refused to approve 
the plan, and instead informed plaintiffs that there were 
additional requirements, not found in any zoning or other 
statutes, which plaintiffs had yet to meet.'' Id., 849 F. Supp. 
at 709. The Committee believes that these examples poignantly 
illustrate the current confusion concerning when a claim 
becomes ripe. The current state of disarray that Federal judges 
and private landowners alike find themselves in can be fixed by 
the establishment of a set of objective criteria so that all 
parties will be able to easily discern when a Government land-
use decision is final. The Committee notes that this bill will 
bring that confusion to an end by clearly defining when a 
Federal takings claim becomes ripe for adjudication and how 
many final decisions are required before the claim may proceed 
in Federal court
    Additionally, much confusion has existed over the second 
prong of Williamson County: namely, the requirement that a 
property owner must exhaust all compensation remedies available 
under State law. This prong acts to prevent Federal courts from 
reaching a final decision until the State court definitively 
rules that it will not entertain a compensation remedy. This 
problem is exemplified in Santa Fe Village Venture v. City of 
Albuquerque, 914 F. Supp. 478 (D.N.M. 1995). There, the local 
city council established a building moratorium to preclude any 
development on lands near a national monument site. Plaintiff 
had an option to purchase land within areas subject to the 
moratorium, but never exercised that option because of the 
total land use restriction. Rather, plaintiff filed a lawsuit 
in Federal district court seeking just compensation from the 
local government for its inability to develop the property. The 
first suit was dismissed on ripeness grounds because the 
property owner never sought a compensation remedy in State 
court. In other words, exhausting State compensation procedures 
was necessary to make a Federal claim ripe for resolution. The 
property owner then filed a second action for inverse 
condemnation in State court. This case was also dismissed--this 
time for lack of standing. Plaintiff returned to Federal court 
raising only Federal claims but had its case dismissed again on 
ripeness grounds because the Federal claims were not raised in 
State court despite the State court's previous adjudications. 
The Committee believes that it is these type of situations that 
this bill will resolve by removing the confusion of the State 
exhaustion requirement.
    The Committee takes notice of a landmark study in this area 
prepared by Gregory Overstreet, who concluded that federal 
judges had avoided reaching a determination on the merits in a 
takings claim for ripeness reasons in over 94 percent of all 
takings cases litigated between 1983-88. See Gregory 
Overstreet, The Ripeness Doctrine of the Takings Clause: A 
Survey of Decisions Showing Just How Far Federal Courts Will Go 
To Avoid Adjudicating Land Use Decisions, 10 J. Land Use & 
Envt'l. L. 91, 92, n. 3 (1994). The Committee also notes that 
according to a more recent study prepared by the law firm of 
Linowes and Blocher LLP of Silver Spring, MD, and incorporated 
into the Record for this bill, over 80 percent of the takings 
cases originating in the U.S. district courts between 1990-97 
were dismissed before the merits were ever reached due to the 
ripeness doctrine. Many of these dismissals were tantamount to 
the termination of the claim because the landowner lacked 
adequate financial resources to fund an appeal. For those 
landowners who could afford the high expenses of an appeal, the 
survey showed that more than half of the takings claims were 
still dismissed. Of those appellate cases that did pass the 
ripeness test, 60 percent were remanded for more litigation on 
the merits. These results underscore the need for this 
legislation.
    Furthermore, the Committee notes that a Federal court may 
also abstain from hearing a takings case under the judicially 
created doctrine of ``abstention.'' This doctrine allows 
Federal judges to exercise discretion in deciding whether or 
not to accept cases that are properly under the court's 
jurisdiction. Federal courts are reluctant to adjudicate State 
political and judicial controversies, so a Federal court will 
usually abstain anytime that a claim presents a Federal 
question that would not need to be resolved if an underlying 
challenged State action of an unsettled State law issue were 
determined. Railroad Commission of Texas v. Pullman Co., 312 
U.S. 496 (1941). Federal courts also abstain from hearing cases 
which touch on sensitive state regulatory issues which are best 
left to the State courts. Burford v. Sun Oil Co., 319 U.S. 315 
(1943).
    Additionally, Federal judges often use the abstention 
doctrines to refer takings cases back to State courts before 
reaching the merits of the fifth amendment claims. This bill 
remedies the current abuse of abstention by requiring that 
Federal courts adjudicate the merits of an aggrieved property 
owner's claims where those claims are solely based on Federal 
law. On the contrary, if a property owner also raises claims 
involving State constitutional, statutory or common law claims 
pendent to the Federal claims, then the property owner may not 
use this bill and the Federal court may properly abstain in 
that type of situation.
    The Committee emphasis that control over land use lies and 
will remain in the hands of local entities. Private property 
owners must submit a land-use proposal to the local agency for 
approval which, for many applicants, is the beginning of a 
negotiation process regarding the permitted land uses. However, 
this process can take years for property owners who are left in 
regulatory limbo due to the local entities'' failure to make a 
final decision as to what land use is permitted. Consequently, 
property owners are not able to use or develop their land and 
are effectively denied their fifth amendment rights.
    While this result could be construed as a fifth amendment 
taking, the Committee recognizes that the applicant is, for all 
practical purposes, unable to file a claim in Federal court to 
enforce these constitutional guarantees because local land-use 
authorities do not want to be sued in Federal court and can 
abuse the system by purposely withholding a final agency 
decision. To further frustrate the problem, the Federal court 
decisions interpreting the Supreme Court's ``ripeness'' 
definition are conflicting and confusing, providing little 
guidance to property owners as to when a case is ``ripe'' for 
Federal adjudication.
    Moreover, the Committee notes that Federal judges are often 
reluctant to get involved in land-use issues. Instead, they 
usually dismiss takings cases back to State court based on the 
abstention doctrines or the lack of ripeness. Unfortunately, 
the overwhelming majority of property owners do not have the 
time and money necessary to pursue their case through the State 
court and then refile it in Federal court. The extensive use of 
the abstention doctrines by the federal courts to avoid land-
use cases, even ones involving only a Federal claim, has 
created a blockade denying aggrieved land owners access to the 
Federal court system.
    This problem is exemplified by the situation presented in 
Suitum v. Tahoe Regional Planning Agency, 80 F.3d 359 (9th Cir. 
1996), vacated and remanded, 117 S. Ct. 1659 (1997). Bernadine 
Suitum, a retiree, was barred from building on her land by a 
regional planning agency. For 7 years, the Federal courts 
steadfastly refused to consider whether a taking of her 
property by the Government had occurred until the U.S. Supreme 
Court ruled in an unanimous decision that she will have the 
right to argue her case in Federal court. This elderly woman's 
plight has resulted in years of expensive litigation just to 
have the opportunity to present the merits of her case to a 
Federal judge. Unfortunately, this situation is far from rare 
for many takings claimants.
    Another procedural tool that has been used to construct a 
barrier to property owners seeking remedies in Federal court 
has been the use of the doctrines of res judicata and 
collateral estoppel by Federal judges. Res judicata, also known 
as claim preclusion, acts as a bar to further claims brought by 
a party on the same claim where a final judgment on the merits 
has already been reached. Claim preclusion prevents parties 
from relitigating claims that were already raised or could have 
been raised in an earlier lawsuit. Similarly, collateral 
estoppel, also known as issue preclusion, prevents a plaintiff 
from relitigating issues that were already decided by a State 
court. Consequently, a Federal court could preclude a property 
owner from bringing an otherwise ripe claim in Federal court 
because a final determination had already been reached in a 
State court proceeding. That is, a strict adherence to the 
Williamson County prongs could prove tantamount to the nails in 
the coffin box of the property owner's ripe takings claim. 
However, by removing the State exhaustion requirement from the 
ripeness landscape, this bill effectively solves all res 
judicata and collateral estoppel problems.
    Interestingly, claimants alleging violations of other 
fundamental rights do not encounter these same procedural 
barriers when attempting to bring meritorious actions in 
Federal court. In those situations, ripeness, abstention, and 
res judicata are often inapplicable. This places fifth 
amendment claimants in an inferior position to their first 
amendment counterparts. However, the Supreme Court has 
expressly stated that the fifth amendment is ``as much a part 
of the Bill of Rights as the first amendment or the Fourth 
Amendment [and] should [not] be relegated to the status of a 
poor relation.'' Dolan v. Tigard, 512 U.S. __ 114 S. Ct. 2309, 
2320 (1994). The Committee concurs, and believes that the 
rights of the fifth amendment should not be inferior to those 
of the first amendment or to any other fundamental guarantee 
contained in the Bill of Rights.
    H.R. 1534 seeks to address these procedural blockades and 
offer property owners more certainty as to the Federal 
adjudicatory process governing takings claims. More 
specifically, H.R. 1534 accomplishes this by defining when a 
final agency decision takes place and prohibiting Federal 
judges from invoking the abstention doctrine to avoid cases 
that involve only fifth amendment takings claims.
    Additionally, H.R. 1534 maintains the traditional 
interpretations of the abstention doctrine which keep the 
Federal courts free from being thrust into controversies 
surrounding State and local issues by limiting its scope only 
to actions involving Federal claims. As the proposed language 
indicates, usage of this act by a claimant is optional. That 
is, H.R. 1534 allows a claimant the opportunity to bring a 
claim in Federal court if she so chooses, but does not mandate 
such an avenue of jurisdiction. H.R. 1534 simply allows every 
citizen her right to bring a Federal takings claim into Federal 
court to be decided on the merits. It is important to note that 
if a claimant brings a takings claim that is joined to other 
State claims, a Federal court would be able to abstain: for 
example, a takings claim accompanied by a State constitutional 
claim, a claim of ultra vires conduct, or abuse of discretion 
would not be able to reach the merits in Federal court without 
a State court first deciding the merits of the State claims.
    The Committee believes that H.R. 1534 accomplishes its 
goals in a manner that will not crowd the Federal dockets. 
Under the provisions of this bill, a claimant is required to 
obtain as few as three and as many as five decisions by local 
entities before her claim will be ripe for review by a Federal 
court. Thus, the claimant must spend adequate time pleading her 
case before the local authorities and must obtain the necessary 
denials from them; until she satisfies these prerequisites, her 
claim will be barred from the Federal courts.
    Some have argued that the second prong of Williamson County 
mandates as a matter of constitutional law that property owners 
exhaust State compensation remedies before seeking Federal 
court redress. This conclusion is buttressed by their claim 
that a taking does not occur on a State or local level until 
the State or locality has had the opportunity to afford 
compensation to the property owner.
    The Committee disagrees with both these contentions. First, 
Williamson County was decided before the remedy for a Federal 
taking was clarified. It is outdated. When Williamson County 
was decided in 1985, the Court viewed the remedy for takings to 
be invalidation of the offending statute or rule. In other 
words, compensation was not considered the remedy for a taking 
under the U.S. Constitution. That changed in 1987, with First 
English Evangelical Lutheran Church of Glendale v. County of 
Los Angeles, 482 U.S. 304 (1987), where the Supreme Court 
finally held that the Federal remedy for a taking is 
compensation. Now that this Federal remedy has been clarified, 
there is no reason to compel a citizen to litigate State court 
remedies in State court first.
    Second, and consequently, the second prong of Williamson 
County is now merely prudential in nature. This conclusion is 
buttressed by the Supreme Court's most recent takings and 
ripeness decision, where the Court described Williamson 
County's requirements as ``two independent prudential hurdles . 
. . '' Suitum v. Tahoe Regional Planning Agency, 117 S. Ct. 
1659, 1666 (1997). In other words, the requirement of 
exhaustion of State or local compensation procedures is a 
court-created barrier which Congress may alter. Simply put, 
initial State court litigation is not compelled by the 
Constitution.
    Third, the Williamson County second prong is only dicta, 
and, therefore, not binding authority. The main issue in 
Williamson County concerned the first element of ripeness, 
i.e., whether the land use agency rendered a ``final 
decision.'' The ensuing discussion on compensation ripeness was 
neither essential nor necessary to support the decision. Thus, 
it was mere dicta.
    Fourth, the text of the takings clause does not require 
that property owners must exhaust State or local compensation 
procedures. The drafters and ratifiers of the 5th and 14th 
amendments to the Federal Constitution did not intend such a 
result: The text of the takingsclause states: ``[N]or shall 
private property be taken for public use, without just compensation.'' 
Thus, the fifth amendment clearly creates a Federal remedy for a 
taking. There is no basis to believe that the drafters and ratifiers 
intended State court litigation as a prerequisite to vindicate that 
Federal remedy. State court litigation puts the cart before the horse: 
Compensation is simply a computation of the amount owed for a taking. 
It makes no sense to sue in State court first, until liability for the 
Federal taking has been determined.
    Fifth, preclusion doctrines, as mentioned above, bar any 
Federal takings suit in Federal court if a plaintiff must sue 
in State court first. A property owner in this circumstance 
would never get to Federal court to vindicate the property 
owner's rights. It is doubtful that this was the intent of the 
drafters and ratifiers who promulgated and adopted Federal 
rights amendments and established the Federal forums to protect 
them. Yet being barred from the Federal court house is exactly 
what happened in Dodd v. Hood River, 136 F.3d 1219 (9th Cir. 
1998). Because the issues in both the State and Federal 
proceedings were similar, collateral estoppel prevented the 
plaintiffs from relitigating their case in Federal court. 
Precisely the same situation occurred recently in Wilkinson v. 
Pitkin County, 1998 WL 216085 (10th Cir. May 4, 1998). The 
court noted:

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

Wilkinson, at n. 4.
    The Committee also notes that other constitutional rights 
hinge on State or local issues, but do not require initial 
State litigation. Many provisions in the Bill of Rights also 
hinge on the resolution of issues concerning State or local 
law. There are no similar ripeness barriers requiring citizens 
to go to State court first to address the constitutionality of 
Government actions that infringe upon the speech, religion, or 
privacy rights protected in the Constitution.
    Furthermore, the Supreme Court in Loretto v. Teleprompter 
Manhattan CATV Corp., 458 U.S. 419, 437, n. 15 (1982), held 
that takings could occur regardless of whether the property has 
increased in value. In this case the Court found a taking where 
cable was laid pursuant to a New York statute, which 
undoubtedly increased the value of the building. The Supreme 
Court found a taking and remanded the compensation issue to the 
lower court.
    The Committee believes that this holding is contrary to the 
position of the bill's critics that takings analysis require, 
as a matter of law, that compensation be determined before a 
governmental action can be considered an unconstitutional 
taking. Under Loretto, a court could find that there has been a 
taking--a significant interference with property rights--yet 
award no compensation. It is still considered an 
unconstitutional taking. Consequently, the compensation 
requirement of the takings clause is merely a remedy that may 
or may not be awarded in a State or Federal court, depending on 
the fairness of the situation.
    Buttressing this conclusion is the recent Supreme Court 
decision in Phillips v. Washington Legal Foundation, No. 96-
1578 (June 15, 1998). In Phillips, the Court held that interest 
accruing from interest bearing lawyers trust accounts (Interest 
On Lawyers Trust Account (IOLTA)) is property within the 
meaning of the fifth amendment. Although the Court left open 
whether the adequacy of compensation must be determined before 
a constitutional takings is considered to occur, Phillips slip 
op. at 7, n.4, it is interesting to note that as a practical 
matter the Court first determined whether there was a property 
interest and, thereafter, remanded the case to determine 
whether there was a taking, and if so, the amount of just 
compensation.
    The Court in effect applied a three-part test: (1) whether 
a property interest exists; (2) whether the property interest 
has been significantly interfered with; and (3) if a property 
interest has been taken, the determination of just 
compensation. The Committee believes that this approach belies 
the argument that a Federal court cannot hear takings claims 
before a State determines compensation. Indeed, this was the 
position of the dissent, who argued that the issue of 
compensation is not separate and distinct from the issue of 
disposition and use of property. Phillips, slip op. at 4 
(Souter, J., dissenting).
    Furthermore, in Eastern Enterprises v. Apfel, No. 97-42 
(U.S. June 25, 1998), decided on the next to last day of the 
1997-98 Supreme Court term, the Court faced the issue of 
whether the Coal Industry Retiree Health Benefit Act (``Coal 
Act'), which established a mechanism to fund health care for 
retirees, could be applied retroactively to a company that no 
longer mined coal and had withdrawn from the Coal Act funding 
scheme pursuant to terms of a prior negotiated agreement. Four 
Justices held that the application of the Coal Act violated the 
takings clause of the fifth amendment. Eastern Enterprises, 
slip op. at 1-37 (plurality opinion of O'Connor, Rehnquist, 
Scalia, and Thomas, J.J.). One Justice held that retroactive 
application of the act violated the due process clause. Eastern 
Enterprises, slip op. at 1-7 (Kennedy, J., concurring and 
dissenting in part).
    In reaching its conclusion, the plurality grappled with the 
ripeness issue of whether a litigant, such as the petitioner in 
the case, is barred from seeking equitable relief in Federal 
district courts. The Tucker Act confers exclusive jurisdiction 
on the Court of Federal Claims to hear claims for compensation 
under the takings clause of the fifth amendment, and it was 
argued, much like critics of this bill, that a claim for 
equitable or other relief under the takings clause is 
hypothetical until compensation is first determined by a court. 
The Supreme Court noted that the court of appeals were divided 
on the issue and that the Supreme Court's precedents were 
seemingly contradictory. Eastern Enterprises, slip op. at 19 
(plurality opinion of O'Connor, J.).
    For instance, the Supreme Court in First Evangelical 
Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 
304, 314 (1987), observed that ``the fifth amendment does not 
prohibit the taking of private property, but instead places a 
condition [just compensation] on the exercise of that power.'' 
Yet in Duke Power Company v. Carolina Environmental Study 
Group, Inc., 438 U.S. 59, 70 n. 15 (1978), the Supreme Court 
held that a district court may exercise jurisdiction over 
declaratory judgment actions pursuant to a takings clause 
claim, even when no attempt to seek compensatory relief has 
been made in the Court of Federal Claims. Significantly, the 
Eastern Enterprises plurality noted that the Supreme Court had 
granted equitable relief without discussing the applicability 
of the Tucker Act, and, thus, decided the issue sub silento 
that an unconstitutional taking could occur without a 
determination of compensation. Eastern Enterprises, slip op. at 
19-20 (plurality opinion of O'Connor, J.), citing Babbitt v. 
Youpee, 519 U.S. 234, 243-245 (1997); Concrete Pipe & Products 
of Cal. v. Construction Laborers Pension Trust for Southern 
Cal., 508 U.S. 602, 641-647 (1993); Hodel v. Irving, 481 U.S. 
704, 716-718 (1987).
    Based on the above, the Committee believes that a Federal 
court may decide takings issues before compensation is 
ascertained. Indeed, the Court of Appeals for the Second 
Circuit characterized the contrary language in First 
Evangelical Lutheran Church, quoted above, as obiter dicta. See 
In re Chateaugay Corp., 53 F. 3d 478, 492 (2d Cir. 1995).
    Finally, the Committee notes that Federal courts have more 
than adequate experience in the appraisal of value as the many 
takings and inverse condemnation claims heard by these courts 
demonstrate. Consequently, Federal courts, as well as State 
courts, are appropriate forums to determine compensation. 
Indeed, this was the intent of the framers and ratifiers of the 
5th and 14th amendments.

                 b. The ``Tucker Act Shuffle'' problem

    Under current law, property owners may not seek to 
invalidate Federal Government action without first seeking 
compensation in the U.S. Court of Federal Claims. If the 
property owner chooses to file in the Court of Federal Claims, 
the property owner will first have to defeat the Government's 
usual proffered motion: that the landowner's claim is really 
for invalidation, not compensation, and, therefore, should be 
dismissed as outside the Court of Federal Claims' jurisdiction. 
If the property owner attempts to avoid this problem by filing 
a claim for invalidation in the district court and a 
compensation claim in the Court of Federal Claims, both suits 
are subject to dismissal--the first as ``premature'' or 
``unripe'' and the second because the Court of Federal Claims, 
under 28 U.S.C. 1500, ``shall not have jurisdiction over a 
claim, for or in respect to which the plaintiff has [a suit or 
process] pending in any other court.'' Keene Corporation v. 
United States, 500 U.S. 200, 207 (1993) (U.S. Court of Federal 
Claims lacks jurisdiction to hear any case which has been filed 
in another court).
    The Committee notes that nothing like this procedural 
nightmare exists for claimants seeking to enforce any other 
type of constitutional right. When the claim is for property 
rights, however, courts too often turn a deaf ear. This unequal 
access to justice for fifth amendment claimants ignores the 
Supreme Court's admonition in Dolan v. City of Tigard:

          We see no reason why the Takings Clause of the Fifth 
        Amendment, as much a part of the Bill of Rights as the 
        First Amendment or Fourth Amendment, should be 
        relegated to the status of a poor relation in these 
        comparable circumstances.

Dolan, 512 U.S. 374, 392 (1993).
    Simply put, the scales of justice are unfairly tipped in 
favor of the Government when citizens are faced with the threat 
of losing their property rights due to Federal Government 
infringement. Not only are the laws drafted to ease the 
litigation burden of the Government, but the costs of takings 
litigation can range in the hundreds of thousands or even 
millions of dollars, too high for the average citizen to bear. 
Consequently, the Committee believes that many citizens faced 
with a property rights claim cannot pursue a legal remedy under 
the fifth amendment. The Government, on the other hand, does 
not face a similar impediments, and generally is able to pursue 
a vigorous defense of the case without constraint. Adding to 
the hardship for the individual, procedural hurdles often bar 
litigation on the merits of a property rights claim for 
anywhere from 10 years or longer. Justice delayed is justice 
denied.
    The ``Tucker Act Shuffle'' is one of those hurdles. Simply 
put, this hurdle shuffles property owners back and forth 
between different Federal courts until their resources are 
completely exhausted. The ``Tucker Act Shuffle'' is possible 
because of the split powers of the Federal courts in property 
rights cases. If a property owner seeks injunctive relief, or a 
court order declaring the Government's action invalid, the 
property owner must file suit in the local U.S. district court. 
If the property owner merely seeks compensation as guaranteed 
by the fifth amendment, he must file in the U.S. Court of 
Federal Claims, located in Washington, DC. If the property 
owner wishes both injunctive or compensation relief, the 
property owner would have to file two separate lawsuits in two 
separate courts, being careful to avoid the pitfalls of 28 
U.S.C. 1500, which prevents the property owner from pursuing 
both suits at the same time.
    The provisions of this bill granting concurrent 
jurisdiction between the Federal district courts and the Court 
of Federal Claims resolves this matter. The fifth amendment of 
the Constitution guarantees property owners the right to be 
paid for their land if the Government takes it from them. In 
1922, the Supreme Court held that, in addition to eminent 
domain, takings occur when the Government regulation ``goes too 
far.'' This ``regulatory'' taking is no different from a 
situation where Government takes land outright. Thus, the 
property owner suffering from onerous regulation must be 
compensated. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 
(1922). Government agencies, however, rarely volunteer to pay 
for taken land. The property owner almost always must go to 
court to vindicate the owner's property rights.
    The U.S. Court of Federal Claims has jurisdiction to hear 
cases involving ``claims against the United States founded * * 
* upon the U.S. Constitution,'' as provided in the Tucker Act, 
28 U.S.C. 1491. The district courts have jurisdiction over 
actions ``to compel an officer or employee of the United States 
or any agency thereof to perform any duty owed the plaintiff '' 
as provided in 28 U.S.C. 1367. The Court of Federal Claims does 
not have jurisdiction to issue injunctive relief or to 
invalidate actions of Congress or executive agencies, while the 
district court lacks the jurisdiction to award just 
compensation due under the fifth amendment. Finally, the Court 
of Federal Claims lacks jurisdiction over any case which is 
pending in the district court, pursuant to 28 U.S.C. 1500.
    The Committee finds that regardless of which claim a 
property owner pursues, and no matter in which type of court 
the property owner pursues that claim, the Government's general 
practice is to defend itself by arguing that the petitioner 
should instead be in a different court. If the case is 
dismissed and refiled in any other court, the Government's 
defense will be that the original court had the proper 
jurisdiction. This creates a vicious cycle that effectively 
prevents property owners from vindicating their rights. The 
Committee notes the late Justice Brennan's observation and 
warning that the procedural difficulty in vindicating 
constitutional rights ``exacts a severe penalty from citizens 
for their attempt to exercise rights of access to the Federal 
courts granted them by Congress to deny them that promptness of 
decision which in all judicial actions is one of the elements 
of justice.'' County of Allegheny v. Frank Mashuda Co., 360 
U.S. 185 (1959). The Committee believes that Congress should 
not tolerate any longer this denial of justice wrought by the 
confusion in our courts.
    Moreover, the Committee believes that section 1500 should 
be repealed. The Court of Federal Claims lacks jurisdiction to 
hear any case which is pending in another court at the same 
time under 28 U.S.C. 1500, irrespective to the relief sought.
    Thus, because the property owner cannot receive injunctive 
relief in the Court of FederalClaims, the property owner 
effectively must choose between pursuing a compensation claim in that 
court or a claim for injunctive relief in the district court. The 
property owner cannot pursue both, even though both claims might be 
viable either together or in the alternative. The Committee finds that 
this arbitrarily forced choice effectively places the property owner 
between a rock and a hardplace when seeking to uphold the owner's 
constitutional rights.
    Section 1500 when first adopted in 1887 served a legitimate 
and necessary purpose--to prevent ``double-dipping'' by 
plaintiffs seeking duplicative relief in differing courts. 
Nevertheless, the Committee notes that over the last century 
the courts have adopted procedural rules and doctrines, such as 
res judicata, and rules for consolidation which render section 
1500 obsolete. Since it has outlived its usefulness, and serves 
primarily as an obstacle to property rights claimants, the 
Committee believes that section 1500 should be repealed.
     The Committee would like to address the contention made by 
the Department of Justice that granting an article I court--
such as the Court of Federal Claims--authority to declare acts 
unconstitutional is itself unconstitutional. The conclusion 
that the U.S. Court of Federal Claims, an article I court, can 
decide the constitutionality of Government acts is based on 
sound jurisprudence, decades of historical usage, and Supreme 
Court precedents. First and foremost, all Federal officers take 
an oath to support and defend the Constitution of the United 
States. Within the power and responsibility of any Federal 
officer is the duty to uphold the Constitution. In terms of the 
role of a judge of any court--be it an Article I or an article 
III court--a judge must always determine the constitutionality 
of the case brought before him. Indeed, no judge can, within 
the dictates of his oath of office, knowingly enforce or uphold 
an unconstitutional statute.
    Several recent decisions of the U.S. Supreme Court uphold 
the broad authority of article I courts. For example, in 
Freytag v. Commissioner of Internal Revenue, 501 U.S. 868 
(1991), the U.S. Supreme Court carefully examined the authority 
of the U.S. Tax Court, established under article I of the 
Constitution, with authority similar to that which would be 
conferred on the Court of Federal Claims by this bill:

          Our cases involving non-Article III tribunals have 
        held that these courts exercise the judicial power of 
        the United States. In both Canter and Williams, this 
        Court rejected arguments similar to the literalistic 
        one now advanced by petitioners, that only Article III 
        courts could exercise judicial power because the term 
        ``judicial power'' appears only in Article III. In 
        Williams, this Court explained that the power exercised 
        by some non-Article III tribunals is judicial power: 
        ``The Court of Claims * * * undoubtedly * * * exercises 
        judicial power, but the question still remains--and is 
        the vital question--whether it is the judicial power 
        defined by Article III of the Constitution.''

Freytag at 889, quoting Williams v. United States, 289 U.S. 
553, 565-566 (1933); see also American Insurance Co. v. Canter, 
1 Pet. 511 (1828).
    Two years ago in United States v. International Business 
Machines Corp, 116 S.Ct. 1793 (1996), the Supreme Court upheld 
the ruling of the Court of Federal Claims that section 4371 of 
the Internal Revenue Code was unconstitutional under the export 
clause. The Committee notes that it is significant that the 
Justice Department did not challenge the jurisdiction of the 
Court of Federal Claims in either the Court of Appeals or the 
Supreme Court. This demonstrates the weakness of their present 
argument. Indeed, both the Justice Department and private 
litigants recognized as recently as last year that the Court of 
Federal Claims has the power to hear and rule on the 
constitutionality of acts of Congress and regulations that fall 
within its jurisdiction.
    Some critics have suggested that the Supreme Court's 
earlier decision on bankruptcy courts (which adjudicate private 
rights rather than public rights, such as the Court of Federal 
Claims does) calls into question this bill. Northern Pipeline 
Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982). 
In Northern Pipeline, the Supreme Court found unconstitutional 
that part of the Bankruptcy Act of 1978 that established a 
``United States bankruptcy court in each judicial district as 
an adjunct to the district court for such district.'' (Id. at 
50). Nonetheless, the Court further held that Congress can, 
consistent with article III of the Constitution, create a 
legislative court when to do so would fall within 
``historically recognized'' situations that:

          * * * represent no broad departure from the 
        constitutional command that the judicial power of the 
        United States must be vested in Art. III [458 U.S. 50, 
        64] courts * * * [Previous Court rulings] [recognize] a 
        circumstance in which the grant of power to the 
        Legislative and Executive Branches was historically and 
        constitutionally so exceptional that the congressional 
        assertion of a power to create legislative courts was 
        consistent with, rather than threatening to, the 
        constitutional mandate of separation of powers.

Id. at 64.
    Specifically, the Northern Pipeline Court explained that 
there is a historical adjudicate role of article I courts 
involving ``public rights'':

          At the same time there are matters, involving public 
        rights, which may be presented in such form that the 
        judicial power is capable of acting on them, and which 
        are susceptible of judicial determination, but which 
        congress may or may not bring within the cognizance of 
        the court of the United States, as it may deem proper.

Id. at 67 quoting Murray's Lessee v. Hoboken Land & Improvement 
Col, 18 How. 272 (1856) at 284.
    Needless to say, all claims for just compensation under the 
fifth amendment before the Court of Federal Claims involve 
``public rights''--because they are exclusively cases in which 
citizens sue the Government. Thus, legislation designed to 
allow the U.S. Court of Federal Claims to grant full remedial 
relief for fifth amendment claimants, including invalidation of 
unconstitutional government actions, is well within the ambit 
of authority of an article I court as recognized in Northern 
Pipeline.

 IV. Critics' Contentions Concerning the ``Ripeness'' Sections of the 
                                  Bill

    The Committee is cognizant that this bill is opposed by the 
Department of Justice, many localities, some interstate 
governmental associations, and certain environmental groups. 
The Committee believes that their concerns that the bill would 
hinder local prerogatives and significantly increase the amount 
of Federal litigation are highly overstated. The bill is 
carefully drafted to ensure that aggrieved property owners must 
first seek solutions on the local or State level before filing 
a Federal claim. It just sets a limit on how many procedures 
localities mayinterpose. Moreover, the Committee doubts that 
there will be a rush of new litigation flooding Federal courts. As 
explained above, it is extremely difficult to prove a takings claim, 
and this bill does not in any way redefine what constitutes a taking. 
These claims are also expensive to bring. Paradoxically, localities' 
defense of Federal actions may be lessened by the bill because 
localities already must litigate property rights claims on Federal 
ripeness grounds, which take years to resolve.
    The Committee notes that once many State officials, 
localities, and State and trade organizations really examine 
the measure, many become the bill's supporters. Those 
supporting the bill or increased vigilance in the property 
rights arena include the Governors of Tennessee, Wisconsin, 
Virginia, New Mexico, North Dakota, and South Carolina. They 
also include the American Legislative Exchange Council, which 
represents over 3,000 State legislators, and trade groups such 
as America's Community Bankers, the National Mortgage 
Association of America, the National Association of Home 
Builders, the National Association of Realtors, and the 
National Federation of Independent Businesses, the organ of 
small business in the United States. They also include 
agricultural interests such as the American Farm Bureau, the 
American Forest and Paper Association, the National Cattlemen's 
Beef Association, and the National Grange. Just as important, 
the Committee notes that 133 House sponsors of the House-passed 
bill were former State and local officeholders. The Committee 
believes that they would not have voted for the bill if the 
bill would conflict with local sovereignty.
    To clarify how the bill would operate and to ameliorate 
concerns arising out of the debate over this legislation, the 
Committee believes it would be useful to address various 
contentions made by critics of the bill:

Critics'' contention No. 1: Property rights litigation ordinarily 
        involves substantial questions of State law and the bill would 
        circumvent the filing of suits in State courts in the first 
        instance

    The fifth amendment is a Federal right granted by the 
Constitution and is as important as any other Federal right--
including the first and fourth amendments. Individuals who feel 
that their fifth amendment rights have been violated deserve 
the same protection in Federal court that any other Federal 
litigant would have. H.R. 1534 applies only to Federal claims 
filed in Federal court. Federal courts would still retain all 
authority to abstain in situations in which State or local 
claims are alleged in Federal court or where there are ongoing, 
parallel State court proceedings on the same set of facts. 
Furthermore, if there is a substantial and unsettled question 
of State law that is essential to the facts of the Federal 
claim, H.R. 1534 allows that question to be certified to the 
highest appellate court in the State--under whatever 
certification procedures exist in that State.
    Federal litigation based on other constitutional rights can 
also involve substantial questions of State law. For example, 
the first amendment does not protect all speech--obscene 
material is not protected. Obscenity is determined not by 
Federal statute, but by ``contemporary community standards'' 
and definitions under ``applicable State law.'' Miller v. 
California (1973). Federal courts do not require individuals 
with first amendment claims to litigate questions of obscenity 
in State court as a condition of hearing their case in Federal 
court.

Critics' contention No. 2: Because plaintiffs can circumvent State 
        courts and go directly to Federal court, the bill will force 
        States and cities to settle with plaintiffs because of the cost 
        of going to trial in Federal court

    It is highly unlikely that H.R. 1534 will result in 
frivolous suits filed by property owners simply to force a 
settlement, for several reasons. Most property owners want to 
use their land, not get compensated for having it taken from 
them. As the question implies, filing a suit in federal court 
is still an expensive proposition--for the property owner as 
well as the defending agency, even with the passage of H.R. 
1534. Lawsuits in Federal court will continue to be the option 
of last resort.
    Further, H.R. 1534 does nothing to help property owners on 
the merits of their case. It is a procedural bill that simply 
clarifies what conditions must be met for Federal court 
adjudication--it does not affect substantive takings law. The 
burden of proof that a property owner must meet to demonstrate 
a constitutional taking is still extraordinarily high, 
essentially the loss of all economically viable use of the 
property in question. Getting more expedient resolution of a 
frivolous case would not benefit an unscrupulous property owner 
in the least--that property owner would simply lose faster on 
the merits of their claim. In Federal court, defending cities 
can, and often do, request that their legal fees be paid for by 
the losing property owner. Thus, a property owner, even under 
H.R. 1534 takes an enormous risk in bringing a Federal claim in 
Federal court in property cases.

Critics' contention No. 3: Courts do not have the time and expertise to 
        resolve a potentially large number of suits involving complex 
        issues of local policy and State law

    The question of whether there will be a large number of 
suits has been answered. Complex issues of local policy and 
State law, as described earlier, can be addressed by having the 
state court certify those questions if necessary. Nonetheless, 
Federal courts frequently exercise their jurisdiction over 
other cases involving questions of State or local law--such as 
cases between citizens of different states. The fundamental 
role of the Federal courts in these issues is not to make 
zoning decisions, but to determine whether individual rights 
under the Constitution have been violated by Government 
decisions. Federal courts are extremely well qualified to 
resolve questions of constitutionality.
    Denying someone their day in court because of a busy court 
schedule, whether that concern is legitimate or not, is unfair. 
Other Federal rights are not excluded from Federal court 
because of a burdened docket--why the fifth amendment?

Critics' contention No. 4: The bill would dramatically shift authority 
        to decide local issues from State and local courts to Federal 
        courts

    H.R. 1534 would apply only to Federal claims filed in 
Federal court. The Department of Justice is correct in stating 
that local land use decisions should be made locally, not at 
the Federal level. H.R. 1534, however, does not give Federal 
courts any expanded authority to interfere in local land-use 
decisions. Violations of the fifth amendment are Federal issues 
by nature--in the same way that a Federal court would have 
jurisdiction over a case in which a local police force was 
accused of an illegal search and seizure under the fourth 
amendment. As Supreme CourtJustice William Brennan wrote in the 
San Diego Gas & Electric v. City of San Diego: ``After all, a policeman 
must know the Constitution, then why not a planner?''
    The fact that constitutional claims can arise from the 
actions of local governments does not make them less valid. 
Federal courts are uniquely qualified to rule on Federal 
claims--even those stemming from the fifth amendment.
    State and local claims should be, and will continue to be 
under H.R. 1534, handled in State, rather than Federal court. 
Federal courts should not, however, force property owners to 
resubmit their claims to State court when no State or local 
question is alleged. Only fifth amendment claims are subject to 
such treatment. H.R. 1534 simply puts property owners on a 
level playing field with other Federal litigants.

Critics' contention No. 5: The bill attempts to reduce the adverse 
        effects of its abstention ban by allowing for certification of 
        issues to State courts under narrowly defined circumstances

    To protect State sovereignty, H.R. 1534 ensures that any 
question of State or local law that is both patently unclear 
and fundamental to the merits of the case is to be remanded 
back to the State courts before the Federal court can continue. 
Currently twelve States (Arkansas, California, Illinois, 
Missouri, Nevada, New Jersey, North Carolina, Pennsylvania, 
Tennessee, Utah, Vermont, and Virginia) do not have 
certification procedures in place. The bill does not require 
any State to change its current procedures for certifying State 
or local questions for the Federal courts.
    H.R. 1534 is simply designed to instruct Federal courts to 
stop abstaining on fifth amendment claims and sending property 
owners back to State court when no State or local claim is 
alleged.

Critics' contention No. 6: The bill would allow developers and others 
        to sue local officials in Federal court without adequately 
        seeking to resolve their disputes with local officials through 
        local procedures

    Local land-use decisions should be made locally. But when 
those decisions infringe upon constitutionally guaranteed 
rights, property owners deserve the same ability to defend 
their rights in court that anyone else has--even if they are 
``developers.''
    The argument that a locality's denial of a single land-use 
proposal would tell the court very little about the kind of 
land use the locality would allow is misleading. The problem 
is, it does not tell the property owner much either. Currently, 
a property owner can go through multiple attempts to get a 
permit without ever getting a definite answer as to what the 
property owner can or cannot do on the property owner's 
property. Current law requires that a property owner get a 
definitive answer as to the allowed uses of the property before 
the owner can file a takings claim in Federal court. The 
Committee observes that Government agencies know well that as 
long as they do not give a final answer (instead, delaying 
property owner's vindication of their rights for years) they 
are practically immune.
    H.R. 1534 does not change the requirement that a final 
decision be reached before the Federal court hears a takings 
claim. It simply defines what a ``final decision'' is. The bill 
states that a property owner must get an answer from the agency 
and be rejected on an appeal or waiver attempt. This will not 
prevent a land-use dispute from being ``worked out'' at the 
local level. The Committee believes that initially it is 
essential for these disputes to be ``worked out'' at the local 
level. The problem is that often Government agencies misuse 
their authority to determine both how owner's can use their 
property and when the agency has made a ``final decision,'' 
H.R. 1534 does not force property owners to go to court; it 
simply gives them that choice--to exercise their fifth 
amendment rights, as guaranteed in the Constitution.

Critics' contention No. 7: The bill would deem ``ripe'' for 
        adjudication cases in which there is an insufficient factual 
        record for decision, thereby raising the risk of poorly 
        informed rulings

    It is difficult to understand how this lack of information 
could occur. If a property owner does not have sufficient 
evidence that an uncompensated taking has occurred, the 
property owner will lose on the merits of the case. Nothing in 
the bill changes the current burden of proof.

Critics' contention No. 8: A Federal court will not know whether the 
        State has engaged in an uncompensated taking unless the 
        claimant seeks compensation from the State

    This argument is erroneous. Federal courts are just as 
proficient in determining just compensation as their State 
counterparts in eminent domain, inverse condemnation, and other 
proceedings. Moreover, the fact that a State constitution also 
requires compensation for a Government taking does not 
supersede rights guaranteed under the Federal Constitution. It 
could not be argued, for example, that someone attempting to 
sue in Federal court on the grounds that the right to free 
speech had been violated should be required to first exhaust 
any remedy they might have under the State constitution before 
going to Federal court.

Critics' contention No. 9: The bill would disrupt the administration of 
        Federal protections

    Here, critics are trying to have things both ways. On the 
one hand, they assert that H.R. 1534 would undermine the 
principle that local land-use decisions should be made locally. 
On the other hand, they claim that Federal laws protecting the 
environment through control of local land use would be 
disrupted. Many critics seem to want Federal involvement in 
local land-use decisions if it is to ``prevent environmental 
degradation,'' but not to protect the constitutionally 
protected rights of individuals.
    The Committee notes that H.R. 1534 amends no environmental 
law or any Federal statute protecting human health and safety. 
The only way ``federal protections'' may be disrupted is that 
Federal agencies will have to think about the impact of their 
decisions on private property owners before acting. That is 
precisely the kind of ``disruption'' the authors of the Bill of 
Rights intended when they imposed limits on the power of the 
Federal Government by guaranteeing the rights of individuals.

Critics' contention No. 10: The bill would burden the already 
        overcrowded Federal docket at the expense of meritorious claims 
        by allowing unripe and unwarranted claims to proceed in Federal 
        court

    By simply calling claims unripe and unwarranted makes them 
so. There is no basis given whatsoever for this charge. Seeking 
relief in Federal court is still expensive, even if the bill 
allows better access. Combined with the significant burden of 
proof required for a property owner to win compensation, it 
seems unlikely that very many property owners without a clear-
cut case will pursue this route. But property owners should at 
least have the option, like any other individual claiming 
constitutional rights have been violated.
    In fact, passing H.R. 1534, the Committee believes, could 
help clear the court dockets. Currently, these cases are 
frequently bumped back and forth between a variety of State and 
Federal courts, all ruling as to whether or not the owner has 
standing to sue. With H.R. 1534, the issue is resolved and the 
courts can move ahead with deciding the merits of the case 
instead of wasting time on whether the property owner has the 
right to sue.
    Regardless, a crowded docket, the Committee, is no excuse 
for not protecting individual rights.

Critics' contention No. 11: Ultimately, the bill will result in an 
        additional centralization of power in an unelected Federal 
        judiciary

    H.R. 1534 does not give the Federal judiciary any more or 
less power than it currently has. The Federal court now has, 
and has always 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, like the environmental 
organizations. The role of the Federal judiciary is the same 
under H.R. 1534 as it is now--to interpret the Constitution and 
determine whether individual rights have been infringed by 
Government actions.
    The courts play the same role in fourth amendment suits, 
alleging an illegal search and seizure. The Federal courts do 
not routinely abstain their jurisdiction over such questions, 
as they do in property cases, depending on whether it was a 
local police force or the FBI that is accused.

                     V. Section-by-Section Analysis

Section 1. Short Title

    This section entitles the bill the ``Private Property 
Rights Implementation Act of 1998.''

Section 2. Findings

    This section makes a series of congressional findings with 
respect to abrogation of property rights.

Section 3. Purposes

    This section states that the purpose of this act is to 
establish a clear, uniform, and efficient judicial process for 
claims based on the 5th and 14th amendment to the Constitution 
by amending the Tucker Act and the judicial ripeness and 
abstention doctrines.

Section 4. Definitions

    This section defines pertinent terms used in the bill.

Section 5. Private property actions

    This section grants concurrent jurisdiction to the U.S. 
Court of Federal Claims and U.S. district courts over civil 
actions challenging the validity of any Federal agency action 
as a violation of the fifth amendment, whether the claimant 
seeks monetary relief or invalidation of the action. The U.S. 
Court of Appeals for the Federal Circuit shall have exclusive 
appellate jurisdiction for claims filed under this section. 
This section includes an express waiver of sovereign immunity, 
a 6-year statute of limitations, and a provision requiring an 
award of attorneys' fees and costs to any prevailing plaintiff.

Section 6. Jurisdiction of U.S. Court of Federal Claims and U.S. 
        district courts

    The jurisdiction of the Court of Federal Claims is amended 
so that in claims that are otherwise within its jurisdiction, 
the Court of Federal Claims may grant injunctive and 
declaratory relief. The Court of Federal Claims shall also have 
supplemental jurisdiction, in cases otherwise within its 
jurisdiction, over tort claims against the United States.
    Claims brought in the Court of Federal Claims or the U.S. 
district courts, arising under property rights or privileges 
secured by the Constitution, are ripe for adjudication upon a 
final decision by the United States or other State or local 
governmental entity. A final decision is made when one 
meaningful application to use the property has been submitted 
and not approved and one application for waiver or appeal has 
not been approved. In the event a State or local governmental 
entity does not approve a meaningful application to use the 
property, and the disapproval explains in writing the use, 
density, or intensity of development that would be approved, a 
second application must be submitted that takes into account 
the terms of the disapproval. A second application after an 
explained disapproval, or an application for appeal or waiver, 
is not required if a process for reapplication or appeal or 
waiver does not exist, the relief requested cannot be provided, 
or such application would be futile. In the event a State or 
local statute or ordinance provides for review of the case by 
elected officials, such review must be requested. A final 
decision under this section does not require exhaustion of 
State judicial remedies.
    A U.S. district court shall not abstain from exercising 
jurisdiction over a claim concerning the use of real property 
if such action does not include a claimed violation of a State 
law, right or privilege and a parallel proceeding in State 
court is not pending. If said claim cannot be decided without 
resolution of an unsettled question of State law, the district 
may certify the question to the State's highest appellate 
court. The district court shall maintain jurisdiction over the 
merits of the case.

Section 7. Duty of notice to owners

    This section provides that any Federal agency that takes 
action limiting the use of private property must give notice to 
the affected private property owner. The notice must include an 
explanation of rights and procedures set forth in this act.

Section 8. Rules of construction

    This act does not preempt States from creating additional 
property rights.

Section 9. Effective date

    This act shall apply to agency actions commenced on or 
after the date of enactment.

                           VI. Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 11, 1998.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1534, the Citizens 
Access to Justice Act of 1998.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Susanne S. 
Mehlman and Deborah Reis (for Federal costs), Leo Lex (for the 
State and local impact), and Matt Eyles (for the private-sector 
impact).
            Sincerely,
                                              James L. Blum
                                   (For June E. O'Neill, Director).
    Enclosure.

               CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

H.R. 1534--Citizens Access to Justice Act of 1998

    Summary: Enacting H.R. 1534 would give greater access to 
federal courts to plaintiffs making claims based on property 
owners' rights secured by the Constitution. As a result, the 
bill is likely to impose additional costs on the U.S. court 
system. While some of the affected cases could be time-
consuming and costly, CBO cannot predict the number or cost of 
such cases. Enactment of H.R. 1534 would not affect direct 
spending or receipts of the federal government, and therefore, 
pay-as-you-go procedures would not apply.
    The Fifth Amendment prohibits the taking of private 
property for public use without just compensation. This 
restriction on government action is extended to the states 
through the due process clause of the 14th Amendment. H.R. 1534 
would primarily affect takings claims directed at the 
regulatory decisions of state and local government. First, this 
bill would prohibit a Federal district court from exercising 
its current right to abstain from hearing certain takings 
claims. H.R. 1534 also would define ``final decision'' for 
these property rights claims, thereby relaxing the standards by 
which such claims are found ripe for adjudication in federal 
district courts or the U.S. Court of Federal Claims. With 
regard to district courts, the definition specifically removes 
the requirement that plaintiffs exhaust all state judicial 
remedies before proceeding to Federal court. The bill also 
would give the U.S. Court of Federal Claims and the U.S. 
district courts the authority to adjudicate all claims--whether 
for monetary or for injunctive and declaratory relief--against 
the Federal Government arising from actions of Federal agencies 
that are alleged to take private property in violation of the 
U.S. Constitution. Plaintiffs would choose which court would 
hear their claim.
    Estimated cost to the Federal Government: Most takings 
cases affected by this bill would originate from a dispute over 
a state or local land use regulation. When local regulation is 
at issue, a number of appeals to local governing boards may 
occur. When those venues are exhausted and when the claim 
asserts a taking,Federal courts often defer to state courts by 
refusing jurisdiction in such matters. The federal courts often argue 
that such cases are not ripe for federal adjudication because 
plaintiffs have not exhausted their opportunities to obtain 
compensation through the state courts. CBO expects that enacting the 
jurisdictional changes under H.R. 1534 would give plaintiffs greater 
access to Federal courts, thus imposing additional costs on the U.S. 
court system to the extent that additional takings claims are filed and 
heard in Federal courts.
    Based on information from various legal experts, CBO 
estimates that only a small percentage of all civil cases filed 
in state courts involve takings claims. Of these, CBO believes 
that only a small proportion would be tried in Federal court as 
the result of H.R. 1534, in part because State and local 
regulators may have an incentive to settle with plaintiffs in 
order to avoid a trial in Federal court. On the other hand, 
most cases that would reach trial in a Federal court as a 
result of this bill are likely to involve relatively large 
claims and could be time-consuming and costly. CBO has no basis 
for estimating the number of cases that would be affected or 
the amount of court that would result. Any such costs would 
come from appropriated funds.
    CBO does not expect that granting jurisdiction over certain 
claims against the United States to both the U.S. Court of 
Federal Appeals and U.S. district courts would have any 
significant effect on the budget because this provision would 
not affect the outcome of complaints or cause any material 
change in the caseload of the Federal court system. This bill 
could result in earlier decisions in some proceedings, which 
may change the timing of Federal court and agency costs, but we 
expect that such effects would be minimal.
    H.R. 1534 also would require the courts to award attorneys 
fees and other litigation costs to any prevailing plaintiff. 
Because litigation costs are already often awarded at the 
discretion of the courts, CBO does not expect that enacting 
H.R. 1534 would significantly change payments for such costs. 
Attorney's fees, however, are not routinely awarded; therefore, 
enacting H.R. 1534 could increase costs to Federal agencies. To 
the extent that enacting this bill results in additional cases 
involving larger claims, this provision could increase both 
litigation costs and attorney's fees paid by agencies. Such 
costs would likely come from funds subject to appropriation, 
but CBO has no basis for estimating the magnitude of any such 
new discretionary spending.
    Pay-as-you-go consideration: None.
    Intergovernmental and private-sector impact: Section 4 of 
the Unfunded Mandates Reform Act of 1995 (UMRA) excludes from 
application of that act legislative provisions that enforce 
constitutional rights of individuals. Because the changes to 
Federal jurisdiction over property rights cases could involve 
the enforcement of certain individual constitutional rights, 
H.R. 1534 may be excluded. In any event, because the changes 
only affect Federal court procedures, the bill would not impose 
any enforceable duty on State, local, or tribal governments, or 
on the private sector.
    Estimate prepared by: Federal costs: Susanne S. Mehlman and 
Deborah Reis; impact on State, local, and tribal governments: 
Leo Lex; impact on the private sector: Matt Eyles.
    Estimate approved by: Robert A. Sunshine, Deputy Assistant 
Director for Budget Analysis.

                    VII. Regulatory Impact Statement

    In compliance with paragraph 11(b)(1), rule XXVI of the 
Standing Rules of the Senate, the Committee, after due 
consideration, concludes that H.R. 1534 will impose some 
additional costs on the U.S. court system. While some cases may 
be time consuming and costly, one cannot predict the number or 
cost of such cases. Passage of H.R. 1534, however, will not 
significantly increase litigation.

                          VIII. Minority Views

  MINORITY VIEWS OF SENATORS LEAHY, KENNEDY, BIDEN, KOHL, FEINSTEIN, 
                    FEINGOLD, DURBIN, AND TORRICELLI

    We respectfully but strenuously oppose the ``Private 
Property Rights Implementation Act of 1998,'' ress. H.R. 1534, 
105th Cong. We have three basic objections to this proposed 
legislation.
    First, the proponents of H.R. 1534 have failed to identify 
any significant ``problem'' to which this sweeping legislation 
would provide a solution. The U.S. Supreme Court has carefully 
developed a set of procedural standards governing takings 
actions against local governments. These standards are 
reasonable and appropriate, provide clear guidance to 
litigants, enforce the mandate of the fifth amendment to the 
U.S. Constitution that private property not be taken for public 
use without just compensation, and recognize the legitimate 
interests of State and local governments and State courts in 
the administration of zoning and other local land use 
regulations in our Federal system. We believe these standards, 
which the Supreme Court has recently reaffirmed, are sound and 
the Congress should not attempt to change them.
    No evidence has been presented to support the thinly veiled 
suggestions by the proponents of H.R. 1534 that local 
governments are either incompetent or routinely act in bad 
faith in their dealings with developers. Nor is there any 
evidence to suggest state courts lack the competence to fairly 
and efficiently address takings claims in accordance with the 
Constitution. We categorically reject these suggestions as a 
justification for this proposed legislation.
    Likewise, the proponents of H.R. 1534 have failed to 
demonstrate a need for the major restructuring of Federal court 
jurisdiction over takings claims against the United States 
proposed in this bill. Legislation to address the so-called 
Tucker Act ``shuffle'' was developed several years ago to 
address a problem that formerly existed: namely that a litigant 
pursuing a takings claim against the United States in the Court 
of Federal Claims could be forever barred from pursuing a claim 
based on the same agency action under the Administrative 
Procedure Act in Federal district court, or, conversely, a 
litigant pursuing an APA claim in district court could be 
forever barred from pursuing his takings claim in the Court of 
Federal Claims.
    Subsequent to the development of this legislative proposal, 
this problem was eliminated by the decision of the U.S. Court 
of Appeals for the Federal Circuit in Loveladies Harbor, Inc. 
v. United States, 27 F.3d 1545 (Fed. Cir. 1994) (en banc). 
Thus, while this proposal was developed to address a legitimate 
issue, the issue has been resolved and legislation to address 
it is no longer needed.
    We recognize that there remains a separate, relatively 
narrow issue arising from the fact that an owner seeking to 
challenge Federal agency action must pursue a takings claim and 
an APA claim in separate courts. However, this issue can be 
addressed in a straightforward way without, like the majority's 
proposed ``solution,'' creating numerous other problems. 
Specifically, the problem of bifurcated jurisdiction can be 
addressed by granting the article III district courts 
jurisdiction to address takings claims against the United 
States without regard to the amount of the claim, along with 
other claims arising from the same agency action. An amendment 
offering this solution as a substitute for H.R. 992 was 
defeated in the U.S. House of Representatives by a tie vote of 
206 to 206.
    Second, we oppose this legislation because it represents 
bad public policy. In particular, the legislation would short-
circuit local administrative processes for resolving local land 
use issues by encouraging litigation at an earlier point in the 
process than permitted under existing law. Instead of trusting 
mayors, town councils, planning and zoning commissions, and 
other local officials to determine what is best for their 
communities, this bill trumps the local process and turns local 
land use issues into Federal cases. The legislation would 
increase the overall volume of litigation against local 
governments, most of which have small populations and few 
financial resources; encourage wasteful forum shopping between 
Federal and State courts; and transfer a significant volume of 
local land use litigation from State to Federal courts, 
increasing the workload of the federal courts and undermining 
the role of the federal courts, in Chief Justice Rehnquist's 
words, as a ``distinctive judicial forum of limited 
jurisdiction in our system of federalism.''
    The bill would impose significant new financial burdens on 
local governments, undermine local government's ability to 
enforce zoning and other local land-use regulations that 
protect the property values of tens of millions of American 
families, and contradict our Nation's traditional commitment to 
States and localities as the primary laboratories of our 
democracy.
    The predictable effects of the provisions concerning 
takings claims against the United States are different but 
equally harmful. The bill would dilute if not flatly violate 
article III of the Constitution, a bulwark of our system of 
separation of powers, by vesting broad new powers in an article 
I court, the Court of Federal Claims. These provisions would 
encourage forum shopping between Federal district courts and 
the Court of Federal Claims, as well as between the regional 
courts of appeal and the U.S. Court of Appeals for the Federal 
circuit. In addition, they would, at the expense of all other 
lower Federal courts, enhance the judicial authority of a few 
Federal courts on which judges appointed by the party of the 
majority predominate and who, according to some critics, do not 
reflect a balanced cross-section of judicial philosophy.
    H.R. 1534 also grants the Court of Federal Claims and the 
Federal circuit sweeping new power to invalidate nationwide a 
wide range of environmental, health, safety, consumer, labor 
and other safeguards that have been upheld by Federal district 
and appellate courts. Finally, by granting broad new powers to 
the U.S. Court of Appeals for the Federal circuit, which has 
nationwide appellate jurisdiction, to address a whole new range 
of administrative law issues on which the Federal circuit has 
no established precedent, the bill threatens to create new 
legal uncertainties about the standards governing numerous 
Federal actions and programs, to the detriment of Federal 
agencies, the public, and the regulated community.
    The far narrower and unsuccessful House substitute, which 
would have granted Federal district courts jurisdiction over 
takings cases, addresses the concern about bifurcated 
jurisdiction over claims against the United States without 
producing the many serious problems described above.
    Third, we oppose H.R. 1534 because it is very likely to be 
found unconstitutional and therefore would likely be 
ineffective in achieving its purposes. We believe the ripeness 
standards governing takings actions against local governments 
in Federal court are beyond the power of Congress to change as 
proposed by this bill. While there is room for debate on this 
point, we think the better view, supported by a careful 
analysis by the Department of Justice, is that these standards 
are constitutionally based and therefore not subject to 
legislative revision. Specifically, the Department has 
concluded that the requirement that a takings claimant seek 
compensation in State court before suing in Federal court is 
based on the fifth amendment itself; while the Congress could 
declare that takings actions are ripe even though the claimant 
has not pursued available State remedies, the Department 
believes that the only constitutional course for the courts if 
Congress were to adopt this legislation would be to dismiss 
such actions on the merits.
    Similarly, we believe that because the Supreme Court has 
said that a ``final'' government action is necessary to 
determine whether a government action has gone ``too far'' and 
compensation is due under the fifth amendment, the courts very 
likely could not resolve claims which are declared ``ripe'' by 
this bill but which fail to meet the constitutional standard of 
``finality.'' Insofar as the act seeks to vest broad powers in 
an article I court that can only be properly vested in an 
article III court, the provisions addressing takings claims 
against the United States are likely to be determined 
unconstitutional as well.
    Why is Congress considering such plainly unnecessary, 
harmful, and probably useless legislation? Proponents contend 
that this bill represents a more ``moderate'' approach to the 
concerns ostensibly addressed by the takings provision in the 
Contract with America in the 104th Congress. While we agree 
that the Contract with America takings proposal was seriously 
flawed, it at least had the virtue of focusing on Federal 
resource management programs within the responsibility of 
Congress.
    As the proponents of the Contract with America takings 
proposal constantly emphasized, that proposal would have 
imposed additional duties and liabilities on the Federal 
Government, not State or local governments. The current 
proposal, by contrast, directly affects local land-use 
regulation, a subject which the U.S. Congress has consistently 
believed should be left largely in the hands of State and local 
officials. In this important respect, this takings proposal is 
far more radical than the Contract with America takings 
proposal. Moreover, it turns the ``devolution'' philosophy so 
vigorously advanced by many members of the majority completely 
on its head. In fact, it runs counter to many of the statements 
made in previous Congresses by members of this Committee. 
During the debate on the failed takings bills of the 104th 
Congress, Senate supporters stated that takings legislation 
should only apply to the Federal Government and not impact 
State or local zoning laws. These Senators even stressed that a 
critical aspect of takings legislation in the 104th Congress 
was that it only imposed duties and liabilities on the Federal 
Government--not local governments.
    This year's effort is just the opposite. This year's effort 
is a direct and open effort to take power away from mayors and 
city councils, to take power away from local planners and 
elected local officials, and to take power away from local 
zoning boards. It shifts the power to wealthy developers who 
can afford lawyers to get them into Federal court.
    Contrary to the majority report, H.R. 1534 will have a 
significant impact on takings cases and will severely tilt the 
playing field in favor of developers. In addition to 
encouraging forum shopping between Federal and State courts and 
among the Federal district courts and the Court of Federal 
Claims, the legislation tells the States and municipalities 
that they are not competent to adjudicate their land disputes, 
and that a Federal court should be brought in at the earliest 
possible point in the litigation to save localities from their 
alleged biases.
    Developers and certain landowners, principally represented 
by the National Association of Home Builders, would benefit 
financially from this legislation. It would grant developers 
new and enlarged opportunities to sue local communities. 
Perhaps more importantly, it would provide 
developerssignificant new leverage over local communities in 
negotiations over proposed development. H.R. 1534 gives those who wish 
to make windfall profits an incentive to buy land cheaply and then take 
local authorities to Federal court and evade local zoning laws which 
``regular'' citizens must follow. For example, a half acre of land 
zoned for suburban homes might be purchased for the cost of the home 
and lot by a developer. That land would be zoned for homes to protect 
the value of all the homes of the neighbors. But the land could be 
worth many times more, $2.2 million instead of just $200,000 if a gas 
station were there instead of a home. H.R. 1534 would allow speculators 
and developers to either sue for the $2 million in lost profits by 
alleging the taking of a property interest, or sue to evade the zoning 
requirements. In addition, zoning commissioners would be taking a 
personal risk in that the action could be filed against them in their 
personal capacity for acting outside the scope of their duties since 
``violating the Constitutional rights of others'' is not an official 
function of town officials.
    The true misfortune of H.R. 1534 is that it weakens the 
home owners' ability to protect their property and its value. A 
developer might not win in any given case, but the costs of 
defending lawsuits in Federal court may just be too much too 
bear. Just the threat of litigation to protect a 
``Constitutional right'' might be enough to convince the zoning 
commission to grant a variance for the gas station. In our 
view, the balance of power between developers and local 
communities, particularly smaller cities and towns that lack 
even full-time legal counsel, is not unreasonably tilted in 
favor of the public. In any event, the proponents of this 
legislation have failed to make their case otherwise. H.R. 1534 
has generated strong opposition from groups representing State 
and local officials, religious and conservation organizations, 
as well as editorial boards ranging across the country from 
Manchester, NH, to Tuscon, AZ.
    Over 10 years ago, a group of respected land use experts 
writing in the Vermont Law Journal said that ``[a]t the present 
time, in many areas the cards are stacked against the neighbors 
and they are the ones who really need judicial help,'' and 
``any change which results in an across-the-board shift in 
power away from local government to landowners and developers 
is highly suspect.'' Norman Williams, Jr., R. Marlin Smith, 
Charles Siemon, Daniel R. Mandelker, and Richard F. Babcock, 
``The White River Junction Manifesto,'' 9 Vermont Law Review 
193, 202, 244 (1984). In view of the intervening Supreme Court 
decisions expanding local government liability under the 
takings clause, in particular First English Evangelical 
Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), 
this conclusion is even more true today than it was at the time 
it was written.
    We pledge to work with our colleagues to ensure that this 
legislative proposal is defeated.

                       Background and Current Law

    H.R. 1534 would radically change a set of well-established 
procedural standards and rules--some created by the U.S. 
Supreme Court, and others established by Congress--to guide the 
resolution of claims for ``just compensation'' under the 
takings clause of the fifth amendment against both local 
communities and the United States. We believe these standards 
and rules are clear and reasonable, and Congress should not 
attempt to change them. H.R. 1534 would not only discard these 
reasonable standards and rules, but it would introduce a whole 
new set of novel standards and rules, the meaning of which is 
obscure and which undoubtedly would require years of wasteful 
litigation in order to clarify. Contrary to the claims of 
proponents of H.R. 1534, this bill would not resolve confusion 
but instead is a prescription for confusion.

Ripeness

    The U.S. Supreme Court has developed over the years a 
detailed and carefully considered body of precedent addressing 
the issue of ``ripeness''--the question of when a controversy 
is sufficiently mature for Federal court adjudication. If an 
action is not yet ``ripe,'' a Federal court cannot hear the 
case. Ripeness doctrine is rooted in part in the provision of 
article III of the U.S. Constitution limiting the jurisdiction 
of Federal courts to actual ``cases'' and ``controversies.'' 
1 As applied to actions seeking compensation under 
the takings clause, the Supreme Court has identified two 
essential elements for a ripe claim, ``compensation'' ripeness 
and ``finality'' ripeness. In our view, these ripeness 
standards are consistent with the Constitution, properly 
prevent premature Federal court involvement in poorly defined 
disputes, and accord appropriate deference to State and local 
governments which, within our Federal system, have long had 
primary responsibility over zoning and other similar local land 
use issues.
---------------------------------------------------------------------------
    \1\ U.S. Constitution, art. III, sec. 2, cl. 1.
---------------------------------------------------------------------------
    Turning first to ``compensation'' ripeness, in Williamson 
County Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985), 
the Court explained that a takings suit against a local 
government is not ripe unless and until the claimant has 
pursued available procedures for obtaining compensation. The 
Court based this requirement on the text of the takings clause 
itself. The takings clause does not bar takings; it simply bars 
uncompensated takings. The Court reasoned that a Federal court 
cannot determine whether a local government, which is a 
subdivision of a State, has effected an uncompensated taking 
until the claimant has at least requested compensation from the 
courts of that State. If the State courts award compensation, 
then the local government cannot be said to have effected an 
uncompensated taking. If the State courts deny compensation, or 
if the State courts lack reasonable procedures for awarding 
compensation, the Federal takings claim is ripe.2
---------------------------------------------------------------------------
    \2\ While the majority report suggests that a litigant may be 
barred from pursuing a Federal taking claim in Federal court even after 
seeking available State remedies, that understanding of the Supreme 
Court's ripeness standards is contradicted by the reasoning of 
Williamson County itself. Moreover, the majority of Federal courts of 
appeal that have addressed this issue have concluded that a litigant 
who pursues available State remedies but reserves the right to later 
pursue his Federal takings claim in Federal court will be granted his 
day in Federal court. See, e.g., Front Royal & Warren County Industrial 
Park Corporation v. Town of Front Royal, 135 F.3d 275, 283 (4th Cir. 
1998); Fields v. Sarasota Manatee Airport Authority, 953 F.2d 1299, 
1305 (11th Cir. 1992).
---------------------------------------------------------------------------
    Since the majority report misinterprets and misrepresents 
the Supreme Court ruling in Williamson County, a more detailed 
discussion of the this requirement (sometimes referred to as 
the ``second prong'' of Williamson County) is warranted. 
According to the majority report ``the Williamson County second 
prong is only dicta.'' Significantly, the majority does not 
cite any support for its idiosyncratic view, which is contrary 
to the Supreme Court's Williamson County decision, and to the 
many court decisions that have uniformly interpreted the second 
prong as binding. The majority report relies heavily on what it 
terms a ``landmark study in this area prepared by Gregory 
Overstreet,'' but ignores the author's conclusion that the 
second prong is a holding and that ``nearly every circuit has 
decided at least one case holding that the state compensation 
prong is not satisfied when a property owner initially files a 
land use case in federal court, instead of pursuing state court 
relief.'' 3 Nor are we aware of any legal 
commentators who support the majority report. Even Nancie 
Marzulla of Defenders of Property Rights (whose testimony to 
the Committee supported the bill) and Roger Marzulla of 
Defenders of Property Rights reject the view articulated by the 
majority report:
---------------------------------------------------------------------------
    \3\ Gregory Overstreet, ``The Ripeness Doctrine of the Takings 
Clause,'' 10 J. Land Use & Envtl. L. 91, 116-17 (1994) (citing cases in 
n. 160).

          In Williamson County Regional Planning Commission v. 
        Hamilton Bank, the Supreme Court held that a claim was 
        not ripe for federal court review if (1) the property 
        owner had not obtained a ``final decision'' from the 
        applicable administrative agency; and (2) the property 
        owner had not first filed the claim in state court to 
        challenge the government action.4
---------------------------------------------------------------------------
    \4\ Nancie G. Marzulla and Roger J. Marzulla, ``Property Rights: 
Understanding Government Takings and Environmental Regulation,'' at 145 
(1997) (emphasis added).

    The majority report claims that the text of the takings 
clause does not require property owners to exhaust all 
administrative remedies at the State or local level. The 
majority report's assertion is contrary to what the Supreme 
Court's held was a constitutional requirement in the Williamson 
County decision. Even the Marzullas admit that ``The Court 
stated that the second prong of its ripeness requirement was 
based on the just compensation clause itself: ``The nature of 
the constitutional right therefore requires that a property 
owner utilize procedures for obtaining compensation before 
bringing a Section 1983 action.'' ' See Marzullas, supra at 
145, quoting Williamson County Regional Planning Commission v. 
Hamilton Bank, 473 U.S. 172, 194 n. 13 (1985).
    In addition, the ``finality ripeness'' requirement demands 
that, before a litigant files suit in Federal court, the local 
regulators must have arrived at a ``final, definitive 
position'' as to the degree of development allowed on the 
property. This ripeness requirement also is rooted in the 
takings clause itself. A takings claim raises the question of 
whether regulation has gone ``too far''; resolution of that 
issue, the Supreme Court reasoned, requires that a court be 
able to identify with fair precision what the community will 
(and will not) allow, which in turn requires that a developer 
pursue the local administrative process at least to the point 
of a ``final, definitive position'' on potential development. 
In order to provide more specificity to this standard, the 
Court has said that this ripeness standard requires a developer 
to pursue at least one ``meaningful'' development 
proposal.5
---------------------------------------------------------------------------
    \5\ MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 350 
n. 7 (1986)(``[P]roperty owner is of course not required to resort to * 
* * unfair procedures * * *'').
---------------------------------------------------------------------------
    What this means in practical terms is that a developer must 
participate in the local administrative process at least to the 
point of presenting a development proposal that addresses the 
legitimate issues the community has raised. In addition, the 
landowner must pursue any avenues for a variance, waiver, or 
other exemption from the land use restriction at issue. On the 
other hand, a developer is not required to go through these 
procedures to establish a ripe claim if pursuing the procedures 
would, under the circumstances, be futile.

Abstention

    H.R. 1534 also addresses Federal court abstention. 
Developed by the U.S. Supreme Court in a long series of 
decisions over the last 50 years, abstention doctrine defines 
an array of different rules for coordinating the jurisdictions 
of Federal and State courts. Abstention is a discretionary 
doctrine under which Federal judges may decline to decide cases 
which are otherwise properly before them; in other words, a 
Federal court generally will not address the abstention issue 
until it has determined that it has been presented with ripe 
claims within its jurisdiction. There are three basic 
situations in which the Supreme Court has declared abstention 
appropriate: (1) where resolution of a unsettled issue of State 
law could eliminate the need to decide a Federal constitutional 
question,6 (2) where a Federal action touches on a 
complex State regulatory scheme and concerns important issues 
of State policy more appropriately addressed by State courts; 
7 and (3) where a grant of relief by a Federal court 
would interfere with a parallel State court 
proceeding.8 While Younger-type abstention generally 
leads to dismissal of the Federal action, when a Federal court 
abstains under Pullman or Burford the usual practice is for the 
Federal court to stay the Federal case pending resolution of 
the issues referred to the State courts.9 In our 
view, each of the three types of abstention serves a highly 
valuable function in coordinating the sometimes overlapping 
jurisdictions of Federal and State courts and avoiding 
destructive and unnecessary Federal court intrusion into 
matters more appropriately handled by the State courts. While 
the abstention doctrine is sometimes applied in the land-use 
context, it represents a set of general principles and is 
applied in practice to a broad range of legal issues.
---------------------------------------------------------------------------
    \6\ Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496 (1941).
    \7\ Burford v. Sun Oil Co., 319 U.S. 315 (1943).
    \8\ Younger v. Harris, 401 U.S. 37 (1971).
    \9\ Quackenbush v. Allstate Ins. Co., 116 S.Ct. 1712 (1996).
---------------------------------------------------------------------------

Federal takings jurisdiction

    The Court of Federal Claims is the primary trial court 
responsible for resolving claims for just compensation under 
the takings clause against the United States. Created in 1887, 
the Court of Federal Claims is an article I court, that is, the 
judges appointed to this court lack the lifetime appointment 
and salary protection granted to article III judges. In 
addition to hearing takings claims, the Court of Federal Claims 
hears a broad range of other ``money'' claims against the 
United States.
    Because the Court of Federal Claims is an article I court 
with specialized jurisdiction, it lacks the authority to 
resolve a variety of other Federal claims which may arise from 
agency action generating a claim for compensation. Thus, for 
example, an action under the Administrative Procedure Act 
seeking a declaration that an agency regulation of property is 
invalid generally must be brought in a Federal district court, 
and cannot be brought in the Court of Federal Claims.
    In its justification for their sweeping change to Federal 
court jurisdiction, the majority asserts that their change is 
necessary because Government agencies rarely volunteer to pay 
for taken land and that the property owner must always go to 
court to vindicate the owner's property rights. This simply is 
not true. The Department of Justice has been working with Chief 
Judge Loren Smith and the Court of Federal Claims to streamline 
the review process for takings claims and has increased the use 
of alternative dispute resolution to avoid court litigation. In 
addition, Federal agencies frequently acknowledge the need for 
a taking--and they pay for it. Payments include fee simple land 
acquisition for new Federal buildings as well as a wide variety 
of other property interests including flood and flowage 
easements, scenic easements, and buffer zone easements for 
military installations.

                          Legislative History

    H.R. 1534 is the culmination of a new breed of takings 
bills in the 105th Congress that purport to only alter the 
judicial process and not spark the controversy that erupted in 
previous Congresses over compensation-based takings 
legislation. Although H.R. 1534 did garner a significant number 
of cosponsors as the majority states, the number of cosponsors 
who voted against the bill demonstrates that when Members 
examined the bill closely, they become opponents of the bill. 
Thirty Republican Members of the House of Representatives voted 
against H.R. 1534 on the House floor, including nine who had 
cosponsored the bill. It is also significant that the House 
defeated an amendment offered by Representative Sherwood 
Boehlert to limit the scope of H.R. 1534 to Federal actions and 
relieve local governments of a potential tidal wave of 
litigation. That this amendment failed only highlights the 
intentions of this legislation--to undermine the power of State 
and local governments to resolve land use disputes.
    When the House considered H.R. 992 on the floor, 36 
Republicans voted for the Watt-Rothman substitute amendment to 
allow takings claims to be brought in the U.S. district court, 
an article III court that has the constitutional authority to 
dispose of both the compensation issue and the legal 
substantive issue. The amendment was only defeated on a 206-to-
206 tie-vote after Speaker Newt Gingrich was forced to take the 
highly unusual step of voting on the House floor. Thirty-six 
Republicans then voted against the final passage of H.R. 992 in 
the House. Opposition to H.R. 992 even included strong 
supporters of H.R. 1534. For example, Representative Steve 
Rothman (D-NJ) was a supporter of 1534 in the Judiciary 
Committee and on the Floor, but offered the Watt-Rothman 
amendment to address concerns with H.R. 992 and then voted 
against final passage of H.R. 992. Both H.R. 1534 and H.R. 992 
passed the House by far less than the margin needed to override 
a threatened Presidential veto.
    During Senate consideration of H.R. 1534, a substitute 
amendment was accepted that combined H.R. 1534 as passed by the 
House with H.R. 992. The Senate Judiciary Committee moved the 
bill by a 10-to-8 party line vote. However, several Republicans 
joined all of the Democrats in voicing serious concerns about 
the legislation's impact on State and local decisionmaking. So 
far as we are aware, no genuine attempt has been made to 
address their fundamental concerns. As Senator DeWine stated:

          This bill will impose tremendous burdens on local 
        communities by providing such a new fast track to 
        Federal court for property owners. I think we need to 
        consider how this will affect local decision making, 
        decisions that will be made by local zoning boards, 
        decisions made by local officials. This bill would, in 
        effect, leave local land use planners with two bad 
        options--acquiesce to developers by making lenient 
        decisions, or do whatever they think necessary to 
        protect the local community and then face multiple 
        suits in Federal court without having much negotiating 
        ability with property owners.

    Senator DeWine is correct--H.R. 1534 leaves local officials 
with no good options. Senators Thompson and Specter also voiced 
fundamental concerns about this legislation.

                       Description of Legislation

    H.R. 1534 seeks to change substantially the Supreme Court's 
standards for determining whether a takings action, or any 
other action ``to redress the deprivation of a property right 
or privilege secured by the Constitution,'' is ripe for 
adjudication. The bill defines property to include ``all 
interests constituting property, as defined by Federal or State 
law, protected under the fifth and fourteenth amendments to the 
United States Constitution.''
    First, the bill completely eliminates the compensation 
ripeness requirement by attempting to overturn the U.S. Supreme 
Court's decision in Williamson County.
    Second, the bill substantially modifies the finality 
ripeness requirement. The bill states that actions are ripe in 
Federal court 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.'' 10 The bill then establishes a 
complicated three-part conjunctive test for determining whether 
a decision is ``final.'' First, the bill states that a final 
decision ``exists'' if a State or local regulator ``makes a 
definitive decision regarding the extent of permissible uses on 
the property that has been allegedly infringed or taken.'' The 
second part of the conjunctive test is in turn broken down into 
two alternative subparts. Under alternative subpart one, a 
decision is final if ``one meaningful application, as defined 
by the locality concerned within that State or territory, to 
use the property has been submitted but has not been approved, 
and the party seeking redress has applied for one appeal or 
waiver which has not been approved, where the applicable 
statute, ordinance, custom or usage provides a mechanism for 
appeal to or waiver by an administrative agency.'' 
11
---------------------------------------------------------------------------
    \10\ H.R. 1534, sec. 2 (to be codified as amended at 28 U.S.C. 
1343(e)(1)).
    \11\ H.R. 1534, sec. 2 (to be codified as amended at 28 U.S.C. 
1343(e)(2)(A) and (B)).
---------------------------------------------------------------------------
    Under alternative subpart two, a decision is final if ``one 
meaningful application, as defined by the locality concerned 
within that State or territory, to use the property has been 
submitted but has not been approved, 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,'' provided (a) that there is 
(generally) no final decision if no reapplication is submitted, 
and (b) if the reapplication is not approved, the finality 
standard is met ``if the party seeking redress has applied for 
one appeal or waiver with respect to the disapproval, which has 
not been approved, where the applicable statute, ordinance, 
custom, or usage provides a mechanism of appeal or waiver by an 
administrative agency.'' The third part of the conjunctive test 
comes into play only ``where the applicable statute or 
ordinance provides for review by elected officials.'' In that 
event, and where the case ``involv[es] the uses of real 
property,'' then the plaintiff must apply for but be denied 
review by the elected officials.
    The bill also provides that the plaintiff ``shall not be 
required to apply for an appeal or waiver'' under the three-
part test if (1) ``no such appeal or waiver is available''; (2) 
``it cannot provide the relief requested''; or (3) 
``application or reapplication to use the property would be 
futile.''
    H.R. 1534 also limits the circumstances in which Federal 
courts may exercise their discretion to abstain in favor of 
State courts. The bill provides that when a district court 
exercises jurisdiction ``in an action in which the operative 
facts concern the uses of real property,'' the district court 
``shall not abstain from exercising or relinquish its 
jurisdiction to a State court in an action where no claim of a 
violation of a State law, right, or privilege is alleged, and 
where parallel proceeding in State court arising out of the 
same operative facts as the district court is not pending.''
    At the same time, the bill limits the circumstances in 
which Federal courts may certify questions for resolution by 
State courts. The bill provides that when a district court 
exercises jurisdiction ``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.'' However, the bill prohibits 
use of this certification procedure ``unless the question of 
State law (1) will significantly affect the merits of the 
injured party's Federal claim; and (2) is patently unclear.'' 
12
---------------------------------------------------------------------------
    \12\ H.R. 1534, sec. 2 (to be codified as amended at 28 U.S.C. 
1343(d)(1)(2)).
---------------------------------------------------------------------------
    With respect to claims against the United States, the bill 
permits a claimant to file an action ``to challenge the 
validity of any Federal agency action as a violation of the 
fifth amendment to the United States Constitution in a district 
court or the United States Court of Federal Claims.'' In 
addition the bill provides, ``[n]otwithstanding any other 
provision of law,'' that ``the district court and United States 
Court of Federal Claims shall each have concurrent jurisdiction 
over both claims for monetary relief and claims seeking 
invalidation of any Act of Congress or any regulation of a 
Federal agency affecting private property rights.''
    Thus the bill expands the jurisdiction of the district 
courts (which now have jurisdiction over claims that do not 
exceed $10,000) to include all takings claims against the 
United States without regard to the amount of the claim, and 
grants new jurisdiction to the Court of Federal Claims to grant 
declaratory or injunctive relief in any action relating to 
agency action ``affecting private property rights.'' In effect, 
two court systems of concurrent jurisdiction would be created 
for challenges to Federal actions adversely affecting property 
rights. However, the bill would grant ``exclusive 
jurisdiction'' to the U.S. Court of Appeals for the Federal 
Circuit over any appeals in ``any action filed [under the 
bill], regardless of whether the jurisdiction of such action is 
based in whole or in part [on this bill].'' Other provisions of 
H.R. 1534 would give the Court of Federal Claims supplemental 
jurisdiction over ``any related tort claim,'' establish that 
the Administrative Procedure Act (APA) applies to Court of 
Federal Claims review of agency actions, and repeal 28 U.S.C. 
1500. Finally, the bill would change the ripeness finality 
standards in actions against the UnitedStates in a fashion 
similar to the changes proposed for the ripeness finality standard in 
actions against local governments.
    Last, H.R. 1534 incorporates an amendment offered by 
Representative Traficant to the House version of this bill. The 
Traficant amendment states: ``Whenever a Federal agency takes 
an agency action limiting the use of private property that may 
be affected by this Act (including the amendments made by this 
Act), the agency shall give notice to the owners of that 
property explaining their rights under this Act and the 
procedures for obtaining any compensation that may be due to 
them under this Act.''

                     Asserted Need for Legislation

    The majority cites a number of cases that purport to 
justify the radical proposals contained in H.R. 1534, but they 
do not. One basic premise of the bill is that State courts are 
incompetent or otherwise unable to consider suits for 
compensation arising out of local land use disputes. Yet the 
majority report fails to cite a single State court case to 
support this misguided notion. We agree with the views of the 
Judicial Conference and the Conference of Chief Justices that 
State courts are best-positioned to resolve most local land use 
litigation, and we should not pass Federal legislation that 
effectively strips State courts of their traditional role in 
this quintessentially local area, as H.R. 1534 would 
do.13
---------------------------------------------------------------------------
    \13\ Letter from the Judicial Conference of the United States to 
Hon. Henry Hyde (Sept. 29, 1997); letter from the Conference of the 
Chief Justices to Senator Patrick Leahy with Resolution (Feb. 13, 
1998).
---------------------------------------------------------------------------
    The majority's reliance on reported Federal court decisions 
is misleading. Most land-use disputes are resolved 
administratively, and most land-use lawsuits are brought by 
disgruntled developers. Thus, focusing exclusively on reported 
Federal court decisions gives a skewed perspective on the 
relative bargaining positions of developers, neighbors, and 
communities. As noted by five distinguished land-use experts: 
``The success of developers in dealing with the land-use system 
is not reflected in the reported decisions because the lack of 
opposition at the local level, or the impecunious circumstances 
of the protesting neighbors, make `neighbors' cases' 
comparatively infrequent. This condition of the decisional law 
obscures what is really happening at local council meetings.'' 
Norman Williams, Jr., R. Marlin Smith, Charles Siemon, Daniel 
R. Mandelker, and Richard F. Babcock, ``The White River 
Junction Manifesto,'' 9 Vermont Law Review 193, 204-205 (1984). 
The reported case law thus fails to provide evidence of a 
systemic, nationwide bias against developers that warrants a 
Federal response. To the contrary, in many cases the system is 
already largely biased in favor of developers and against 
neighboring property owners. Id. at 204-206.
    The majority report incorrectly cites Southview Associates, 
Ltd. v. Bongartz, 980 F.2d 84 (2d Cir. 1992), as an example of 
an unfair application of ripeness principles. In that case, the 
developer sued the individual members of the Vermont 
Environmental Board based on their denial of an application to 
build 33 residential units on 88.5 acres of property. The board 
denied the application because the proposed development 
violated State protections for wildlife and the environment. 
Id. at 89-92. The Court specifically found, however, that the 
board ``would be receptive to a subdivision proposal that 
placed lots in a different segment of the 88.5 acre property so 
as to minimize impact'' on environmentally sensitive areas. Id. 
at 99. The developer refused to consider such relocation. 
Instead, the developer offered an environmentally destructive 
proposal on a take-it-or-leave-it basis and then sued in 
Federal court, forsaking other options that would have allowed 
for development in a manner consistent with state Law and 
environmental protection. The trial court and the appeals court 
quite properly held that the developer should first negotiate 
in good faith with community officials before subjecting the 
board members to Federal court litigation. We do not need 
Federal legislation that would grease the litigation skids for 
those unwilling to seek reasonable compromises.
    The majority report also cites Schulz v. Milne, 849 F. 
Supp. 708 (N.D. Ca. 1994), rev'd in part, 98 F.3d 1346 (9th 
Cir. 1996), noting that the landowners in that case submitted 
thirteen revisions to the permit application. The Supreme Court 
has made clear, however, that landowners need not pursuefutile 
or unfair processes in order to ripen a claim under the fifth 
amendment. MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 
350 n. 7 (1986). The revisions to the permit application in Schulz 
resulted from a decision by the landowners to proceed in this fashion, 
not from a court-imposed requirement. The Schulz court found the 
takings claims in that case to be ripe (849 F. Supp. at 713-14), hardly 
a ruling that demonstrates a compelling need to radically alter 
ripeness doctrine.
    The majority cites certain cases for the proposition that 
takings claimant who first sues in State court might be 
precluded from raising the same claims in subsequent Federal 
court litigation.14 However, most Federal appeals 
courts allow claimants to ``reserve'' Federal constitutional 
claims so that the Federal court may address those claims once 
the state court litigation has ended. In fact, in one case 
cited by the majority report, the appeals court expressly ruled 
that such a reservation is effective. Dodd v. Hood River 
County, 59 F.3d 852, 862 (9th Cir. 1995) (declining to dismiss 
a takings claim because ``the Oregon courts sufficiently 
reserved this issue by repeatedly acknowledging that the Dodds' 
Federal constitutional claims were not before them and were 
pending in the federal district court'').15
---------------------------------------------------------------------------
    \14\ Dodd v. Hood River County, 136 F.3d 1219 (9th Cir. 1998); 
Sante Fe Village Venture v. City of Albuquerque, 914 F. Supp. 478 
(D.N.M. 1995).
    \15\ Far from closing the courthouse door as claimed by the 
majority report, the Dodd court thoroughly analyzed the takings claims 
in that case, rejecting the claims because the State environmental 
protections at issue were reasonable and legitimate, and because the 
landowners lacked any reasonable expectation of using the property in a 
manner inconsistent with these pre-existing protections. Dodd, 136 F.3d 
at 1229-30. Although the Federal courts in Dodd deferred to the State 
tribunals on one factual issue, the Federal appeals court fully 
considered the landowners' takings claim as a whole, denying the claim 
as ``a losing cause.'' Id. at 1230.
---------------------------------------------------------------------------
    Finally, the majority purports to find support in Phillips 
v. Washington Legal Foundation, No. 96-1578 (U.S. June 15, 
1998). There, the Supreme Court ruled that the property in 
question was the private property of the claimant, but it 
expressly left open the issue of whether a taking had occurred, 
and if so, whether any compensation is due. Phillips confirms 
that the issue of whether a taking has occurred may be 
analytically distinct from the issue of whether compensation is 
owed. Nothing in Phillips, however, undermines the bedrock 
principle of takings law that ``no constitutional violation [of 
the just compensation clause] occurs until just compensation 
has been denied.'' 16 The majority report insinuates 
that Williamson County is no longer good law--particularly its 
requirement that a takings claimant challenging State or local 
action first seek compensation in State court under available 
state law remedies. The Supreme Court, however, has reaffirmed 
Williamson County in many cases, as recently as the 1997 Suitum 
decision.17 None of the cases cited by the majority 
calls Williamson County into question.
---------------------------------------------------------------------------
    \16\ First English, 482 U.S. at 320 n.10; Williamson County, 473 
U.S. at 194 n.13.
    \17\ E.g., Suitum, 117 S. Ct. at 1664-65 (to have a ripe claim, a 
takings claimant challenging State or local action must seek 
``compensation through the procedures the State has provided for doing 
so''; this requirement ``stems from the Fifth Amendment's proviso that 
only takings without just compensation infringe that Amendment''; 
quoting Williamson County); Preseault v. ICC, 494 U.S. 1, 11 (1990) (a 
takings claimant ``has no claim against the Government for a taking'' 
where the State has provided an adequate process for obtaining 
compensation; quoting Williamson County); United States v. Riverside 
Bayview Homes, Inc., 474 U.S. 121, 128 (1985) (``so long as 
compensation is available for those whose property is in fact taken, 
the governmental action is not unconstitutional'; citing Williamson 
County).
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                       Concerns with Legislation

A. Local government provisions

    Most importantly of all, the proponents of H.R. 1534 have 
failed to advance any credible evidence or argument to support 
this proposal to overturn Supreme Court precedent, thoroughly 
revise existing procedural standards governing the prosecution 
of takings claims, and encourage developers to sue cities and 
towns in Federal court early and often.
    While the proponents of H.R. 1534 implicitly criticize 
State courts by attempting to evade their jurisdiction, they 
have failed to provide any evidence to support this criticism. 
In our view, State courts fairly andefficiently resolve local 
land-use issues, and the proponents of the bill have never contended 
otherwise. Instead they have presented a series of studies in support 
of the bill that are thoroughly misleading and beside the point. 
Because most land-use cases are filed in State courts, these studies 
necessarily examine only a relative handful of cases. For example, one 
of these studies, prepared by the firm of Linowes & Blocher, 
purportedly found that over 80 percent of takings cases filed in 
Federal court during a recent period were dismissed on ripeness 
grounds. In view of the Supreme Court's clearly established rule that a 
takings claimant must pursue available State procedures before a taking 
claim will be ``ripe'' in Federal court, this statistic is neither 
surprising nor significant.
    Another analysis relied on by bill supporters only looked 
at 34 cases in 6 years.18 In view of the hundreds of 
land-use decisions communities make every day, this is 
certainly not a representative sample of the cases that are 
before our courts, much less an indication of some ``crisis'' 
demanding a legislative solution. Furthermore, in 25 of the 34 
cases used in the study, the claimant failed to pursue State 
compensation remedies before going to Federal court. In one of 
the cases, a landlord's case was dismissed as unripe because he 
had failed to even apply for a ``certificate of no harassment'' 
of his tenants that was required before altering his building. 
Three other cases in the study were dismissed because the 
claimant had failed altogether to submit a sufficient land-use 
application. In four cases, the challenge was denied because 
the claimant failed to seek a compromise with the local 
authority. That leaves us with one case--where the ripeness was 
actually used to the claimant's benefit. Counter to the 
majority's assertion, this study demonstrates that Federal 
courts are appropriately following Supreme Court precedent.
---------------------------------------------------------------------------
    \18\ Blaesser article, 2 Hofstra Prop. O.L.J. 73 (1988).
---------------------------------------------------------------------------
    Nor is there any support for the proponents' suggestion 
that they are simply seeking to vindicate the right of Federal 
takings claimants to unfettered access to the Federal courts. 
In fact, the Supreme Court has explicitly rejected the idea 
that ``every person asserting a federal right is entitled to 
one unencumbered opportunity to litigate that right in federal 
court.'' Allen v. McCurry, 449 U.S. 90, 103 (1980). This 
proposition is based on the premise, which we acknowledge and 
support, that ``[s]tate courts, like federal courts, have a 
constitutional obligation to safeguard personal liberties and 
uphold federal law.'' Stone v. Powell, 428 U.S. 465, 493 n.35 
(1976). In no sense has the U.S. Supreme Court, which hardly 
could be characterized as hostile to private property rights, 
singled out the takings claimants by according them uniquely 
inferior access to Federal court. For example, the Supreme 
Court has recognized that an individual required to litigate a 
fourth amendment search and seizure claim in a State criminal 
proceeding is completely barred from asserting his 
constitutional claim in a subsequent section 1983 action in 
Federal court. Allen v. McCurry. Under Williamson County, a 
litigant with a Federal takings claim is not denied access to 
Federal court, but simply must pursue available State remedies 
before going to Federal court.
    Apart from the complete lack of factual or logical support 
for the provisions of H.R. 1534 concerning takings claims 
against local governments, the bill would inflict significant 
harms and produce numerous serious problems, as discussed 
below,
            Short circuits local administrative processes
    H.R. 1534 short circuits local administrative procedures 
for resolving land-use issues by encouraging developers to 
commence litigation at an earlier point in the process than is 
permitted under existing law. The purpose and effect of this 
bill is to truncate current administrative procedures and to 
move up the point at which developers would be permitted to 
commence litigation. The bill accomplishes this result by 
requiring that, after having filed an initial development 
application, a developer generally only would need to file--but 
apparently not await the results of--one appeal or application 
for waiver. Moreover, these limited requirements would 
apparently be made meaningless by another provision authorizing 
a developer to skip filing even one appeal or waiver 
application when the local land use authority ``cannot provide 
the relief requested,'' which would apparently be the case in 
all or virtually all cases in which the developer is seeking 
financial compensation under the fifth amendment. Thus, the 
assertion by bill supporters that the bill requires developers 
to make at least three good-faith attempts to negotiate a 
reasonable compromise is plainly incorrect.
    The net effect is that the existing authority of local 
governments to resolve local land-use issues in the community 
would be undermined and these issues would be converted into 
Federal cases. Instead of trusting mayors, town councils, 
planning and zoning commissions, and other local officials to 
determine what is best for their communities, this bill trumps 
the local process.
    The short circuiting of local administrative procedures 
would not only undermine local governments, but it also would 
seriously undermine opportunities for the public to participate 
in local land use decisionmaking affecting their communities. 
Neighbors trying to address legitimate issues raised by 
proposed development have a right to have their objections 
heard in the local administrative process. However, converting 
local land-use issues into Federal court cases would reduce and 
undermine the public's right to be heard. Indeed, the United 
States Catholic Conference and National Council of Churches of 
Christ joined with Jewish and Evangelical groups in urging the 
Senate to oppose provisions that ``favo[r] those with greater 
financial resources by turning to federal courts as the first-
line remedy * * *'' Participation in distant federal courts 
``can be a great financial burden. * * *'' and curtailing 
``local or state administrative procedures * * * effectively 
eliminates the easiest point of local citizen access to land-
use decisions. Consequently, property owners with sufficient 
financial resources will be heard--but residents affected by 
the use of that property who do not have similar financial 
resources will not.'' 19
---------------------------------------------------------------------------
    \19\ Letter to the Senate from the United States Catholic 
Conference, National Council of Churches of Christ, Coalition on the 
Environment in Jewish Life and Evangelical Environmental Network 
opposing S. 1256, the Senate companion to H.R. 1534 (Feb. 20, 1998).
---------------------------------------------------------------------------
    The House of Representatives added an additional 
administrative step before a Federal court action would become 
ripe by authorizing amunicipality to include in its disapproval 
of a proposed development its explanation ``in writing [of] the use, 
density, or intensity of development of the property that would be 
approved, with any conditions therefor.'' This extraordinary provision 
would impose an unprecedented obligation on local governments, over and 
above their normal planning and zoning responsibilities, to develop 
site-specific development plans for developers regardless of the actual 
seriousness or economic viability of the developers' proposed projects. 
This new requirement that local governments would have to follow to 
avoid precipitous filing of litigation would impose substantial new 
costs on local governments, none of which this bill would attempt to 
fund.
            Expands litigation against communities and expands 
                    developers' leverage over communities
    H.R. 1534 would greatly expand the volume of land-use 
litigation against local communities. The very purpose and 
inevitable effect of lowering existing ripeness hurdles to 
prosecution of takings claims would be to encourage the filing 
of lawsuits that might never be filed under existing law and 
therefore to increase the total volume of litigation against 
local communities. At least in the absence of a compelling 
public purpose, we oppose legislation that would simply expand 
litigation against State and local governments.
    Equally important, the heightened threat of litigation 
would significantly increase the leverage of developers over 
local communities in negotiations over land-use issues. As we 
pointed out in the hearing, the top four residential developers 
in the country have annual revenues in excess of $1 billion per 
year. Most of our small towns generate less than $10 million a 
year in tax revenues. As Mayor Curtis of Ames, IA, testified in 
the hearing, 90 percent of cities and towns in America have 
less that 10,000 people. These towns cannot support even one 
municipal lawyer, much less the number that would be required 
to battle billion-dollar developers. Under the threat of 
battling large corporate developers with deep pockets, more 
local governments would opt to settle the case at inflated 
compensation standards or let the development go ahead.
    During the past years, we have heard from mayors and 
governors across the country who are concerned about increased 
legal costs that could arise from this legislation. As 
Philadelphia Mayor Edward Rendell stated about similar 
legislation, ``it would produce more lawsuits and make 
litigation more timeconsuming and complicated, and impose 
increased costs and litigation risks on government at all 
levels.'' 20
---------------------------------------------------------------------------
    \20\ Letter to Senator Arlen Specter (Oct. 27, 1997).
---------------------------------------------------------------------------
    Municipalities with limited legal budgets would have to 
defend numerous takings claims through the process of 
discovery, pretrial motions, trial, and appeals. Facing this 
overwhelming cost, a local official may well feel pressured to 
approve development projects, despite their deficiencies and 
risks to the community. By pitting local authorities against 
corporate developers, H.R. 1534 would set up David versus 
Goliath battles where towns would be tempted to just throw down 
their swords, or in this case their environmental, public 
health and safety standards.
            Increases burdens on federal courts
    H.R. 1534 would significantly increase the workload of the 
Federal courts by encouraging the filing in Federal court of 
lawsuits which would ordinarily be filed at least in the first 
instance in State court. Also, by lowering the finality 
ripeness hurdle, the bill would encourage more frequent land-
use litigation in Federal court. In addition, the bill's 
limitations on abstention would restrict the ability of Federal 
courts to abstain in favor of State courts in cases more 
appropriately resolved in the State court system.
    This proposed expansion of Federal court jurisdiction 
raises a particular concern given the large number of vacant 
judgeships and the increasing wholesale federalization of other 
traditional areas of State law (such as criminal law 
enforcement). The Judicial Conference of the United States 
highlights the potential increased workload in its letter to 
House Judiciary Courts and Intellectual Property Subcommittee 
Chairman Coble, ``H.R. 1534 would encourage the filing of cases 
in federal court that may be either unripe or nonjusticiable or 
that might have been resolved at the state or local level. 
Furthermore, this bill is applicable to actions by federal 
agencies as well as state and local entities. This legislation, 
therefore, will undoubtably add to the workload of the federal 
courts.'' 21 This new burden would be imposed at a 
time when the Federal bench is laboring under the weight of 
some 80 unfilled vacancies.22
---------------------------------------------------------------------------
    \21\ Letter to Hon. Howard Coble (Sept. 29, 1997).
    \22\ Thirty of these vacancies have been pending for more than a 
year and a half. In the first 4 months of this year, the Senate 
confirmed only four judicial nominees. During the entire previous year 
only 17 district court judges were confirmed, and--for the first time 
in history--not a single appeals court judge was confirmed. This 
situation has resulted in an alarming backlog of over 25,000 civil 
cases, and over 10,000 criminal cases. This backlog would be greatly 
exacerbated by the avalanche of litigation that would be brought if the 
bill becomes law.
---------------------------------------------------------------------------
    The National Conference of State Legislatures recently 
emphasized the importance of this point by stating, ``the only 
certain result of [H.R. 1534] would be an additional 
centralization of power in an unelected federal judiciary at 
the expense of the states.'' (NCSL letter, Feb. 17, 1998.) 
Chief Justice Rehnquist, in his 1997 Year End Report of the 
Federal Judiciary, praised the Antiterrorism and Effective 
Death Penalty Act of 1996 because it would decrease the number 
of potential filings in Federal court. He specifically urged 
Congress to avoid legislature measures that would expand the 
workload of the Federal courts and also urged Congress to 
consider ``legislative proposals that would reduce the 
jurisdiction of Federal courts.''
    While the majority report suggests that H.R. 1534 only 
affects claims in Federal court, this most assuredly is not the 
case. Under well established rules regarding ``supplemental 
jurisdiction,'' a litigant with a Federal takings claim would 
ordinarily be expected to assert any and all State or local law 
claims along with the Federal claim in the same lawsuit in the 
same court.
            Encourages wasteful forum shopping
    H.R. 1534 would encourage wasteful judge shopping between 
Federal and State courts. Under current law, a developer suing 
a community for an alleged taking must in the first instance 
pursue available State compensation remedies. Under this bill, 
however, developers would have the option of suing a local 
community in either Federal district court or the appropriate 
State court. No valid public purpose is served by encouraging 
this type of forum shopping.
            Places increased fiscal burdens on local governments
    H.R. 1534 would impose significant new fiscal burdens on 
local communities. By short circuiting existing administrative 
procedures, and encouraging the filing of earlier and more 
frequent litigation, the bill would impose substantial 
additional litigation expenses on local communities. The bill 
would also impose additional costs on local governments by 
forcing communities to defend local land use regulations more 
frequently in relatively more expensive Federal court 
proceedings. In addition, the bill's novel mandate that local 
communities, in order to avoid precipitous litigation, prepare 
site-specific development plans for developers would impose 
significant costs on local communities.
            Undermines local zoning protections and homeowners' 
                    property rights
    H.R. 1534 would undermine zoning and other land use 
regulations which the vast majority of American property owners 
rely on to protect their investments. By encouraging more 
frequent costly litigation against local communities, and 
increasing developers' negotiating leverage over communities, 
H.R. 1534 would undermine the ability of towns and cities to 
enforce their zoning and other land use regulations. 
Undermining zoning and other similar laws would threaten the 
property values of tens of millions of American homeowners.
    The largest and most important group of property owners are 
America's homeowners. Two out of every three American families 
own their own homes. In order to preserve the value of their 
homes, homeowners rely on zoning and other laws to maintain the 
quality of the neighborhood in which they live. Takings 
litigation which challenges citizens' ability to protect their 
communities is a direct attack on these citizens' property 
rights. This is one of the many reasons the bill is opposed by 
major religious organizations, such as the U.S. Catholic 
Conference which stated, ``Given our teaching on private 
property and the common good, the U.S. Catholic Conference is 
very concerned about legislative proposals to expand vastly the 
concept of property rights in which both the social purpose of 
private ownership and the social responsibilities (and moral 
limits) of property owners are diminished.'' 23
---------------------------------------------------------------------------
    \23\ Rev. John J. McRaith, Bishop of Owensboro, KY, U.S. Catholic 
Conference.
---------------------------------------------------------------------------
    During his testimony before the House Judiciary 
Subcommittee on the Constitution, New Hampshire State Senator 
Richard Russman raised the following actual takings claims 
filed against local communities illustrate how destructive 
encouraging the filing of additional takings suits against 
cities and towns would be:
          In Tampa, FL, St. Petersburg, FL, and Mobile, AL 
        officials were sued when they tried to restrict 
        topless-dancing bars;
          A chemical company challenged Guilford County, NC, 
        denial of a permit to operate a hazardous waste 
        facility;
          A landfill operator contested a county's health and 
        safety ordinance prohibiting the construction of 
        additional landfills;
          An outdoor advertising company challenged a Durham, 
        NC, ordinance that limited the number of billboards in 
        order to preserve the character of the city;
          A gravel mine operation challenged a Hempstead, NY, 
        ordinance prohibiting excavation within two feet of the 
        groundwater table that supplied water for the 
        town.24
---------------------------------------------------------------------------
    \24\ Testimony of New Hampshire State Senator Richard Russman 
before the House Judiciary Subcommittee on the Constitution (Sept. 23, 
1997).
---------------------------------------------------------------------------
            Places rights of property owners above other civil rights 
                    plaintiffs
    As introduced in the House of Representatives, H.R. 1534 
was drafted to apply to all property-related claims, including 
claims filed under section 1983. 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 House Judiciary Subcommittee approved 
an amendment to the House bill offered by Representative 
Gallegly which limited the application of the abstention 
provisions of the bill to circumstances ``in which the 
operative facts concern the use of real property.'' Thus, while 
abstention is applied to a wide variety of different causes of 
action, H.R. 1534 would establish special restrictions on 
abstention only in cases involving real property. During House 
Committee consideration of H.R. 1534, an amendment was rejected 
to eliminate this unjustified special treatment for real-
property claims. Arguing that property claims should not be 
granted a docket preference vis a vis life, liberty and other 
civil rights claims, Representatives Conyers and Jackson Lee 
offered an amendment to strike the limitation adopted in 
Subcommittee. This amendment was defeated by a vote of 7-to-17. 
The effect of the amendment's defeat is to report a bill which 
grants ``affirmative action'' to real-property claims.
    As a result, H.R. 1534 would establish an insidious 
discrimination in the application of abstention doctrine 
depending on the type of claim asserted, and grant plaintiffs 
alleging infringements on rights in ``real property'' superior 
access to Federal court compared to other types of plaintiffs. 
Thus, individuals who invoke the civil rights laws to challenge 
police brutality claims, or unreasonable conditions in prisons 
and juvenile facilities, would continue to face application of 
normal abstention principles, but after passage of H.R. 1534, 
real property claimants would not. See House report 105-323.
    For example, abstention has been held appropriate in 
section 1983 actions involving the sixth amendment right to 
counsel,25 ``cruel and unusual punishment'' 
conditions of confinement at a juvenile facility,26 
the denial of Medicaid benefits and first amendment 
rights,27 gender-based discrimination 28 
and a parallel State court criminal proceeding.29 
H.R. 1534 would not alleviate or limit the application of the 
abstention doctrine in these cases, but would do so only in the 
case of claims involving ``real property.''
---------------------------------------------------------------------------
    \25\ Mann v. Jett, 781 F.2d 1448 (9th Cir. 1986).
    \26\ Manny v. Cabell, 654 F.2d 1280 (9th Cir. 1980).
    \27\ Winters v. Lavine, 574 F.2d 46 (2d Cir. 1978).
    \28\ Tiger Inn v. Edwards, 636 F. Supp. 787 (D.N.J. 1986).
    \29\ Heck v. Humphrey, 512 U.S. 477 (1994).
---------------------------------------------------------------------------
    Bill supporters complain that under Williamson County, 
takings claimants who challenge State or local action must 
first seek compensation in State court, while claimants under 
other constitutional provisions are not similarly required to 
file in State court. In this regard, the majority report cites 
Chief Justice Rehnquist's admonition that the just compensation 
clause is ``as much a part of the Bill of Rights as the First 
Amendment or Fourth Amendment'' and should not ``be relegated 
to the status of a poor relation * * *'' Dolan v. City of 
Tigard, 512 U.S. 374, 392 (1994). The majority's reliance on 
Dolan simply misses the point. No one disputes the importance 
of the just compensation clause. But this clause is inherently 
different from other constitutional provisions. It does not 
prohibit government conduct, but merely conditions certain 
government action on the payment of just compensation. The 
Supreme Court, including Chief Justice Rehnquist, has 
emphasized: ``[B]ecause the Fifth Amendment proscribes takings 
without just compensation, no constitutional violation occurs 
until just compensation has been denied. The nature of the 
constitutional right therefore requires that a property owner 
utilize [state] procedures for obtaining compensation before 
bringing a Sec. 1983 action.'' Williamson County, 473 U.S. at 
194 n. 13 (emphasis in original). The Williamson County 
requirement that certain takings claimants proceed in State 
court first does not diminish the importance of the fifth 
amendment, but instead fully recognizes its appropriate nature 
and scope.
    While we should not treat the fifth amendment as a ``poor 
relation,'' Dolan, 512 U.S. at 392, neither should we treat it 
as a ``rich uncle'' by affording property rights special status 
above other constitutional rights, as H.R. 1534 would do. This 
literal and symbolic moving of real property claims to the 
front of the line of civil rights claims--especially when these 
are frequently filed by relatively well-heeled developers 
against cities and towns--is simply indefensible as a matter of 
national civil rights policy. While we all believe that the 
protection of real property is an important part of our 
democracy, there is no justification for placing fifth 
amendment property rights above all other civil rights.
            Promotes judicial activism
    Another ironic aspect of this legislative proposal is that 
it would transfer substantial authority from State courts to 
the very Federal judges so often criticized by proponents of 
the bill for their supposed ``judicial activism.'' This 
legislation invites Federal judges to vigorously employ the 
takings clause to impose new financial burdens on cities and 
towns. Rebutting their own criticism of activist judges, this 
bill would encourage judges to use an exaggerated reading of 
the Federal Constitution as a justification for intervening in 
problems that belong to legislatures and city councils.
            Exceeds Congress' constitutional powers
    Finally, we oppose H.R. 1534 because it is very probably 
unconstitutional. We believe the ripeness standards governing 
takings actions against local governments in Federal court are 
beyond the power of Congress to change as proposed by this 
bill. While there is room for debate on this point, we think 
the better view, supported by a careful analysis by the 
Department of Justice, is that these standards are 
constitutionally based and therefore not subject to legislative 
revision. Specifically, the Department has concluded that the 
compensation requirement is based on the fifth amendment 
itself; while the Congress could declare that takings actions 
are ripe even though the claimant has not pursued available 
State remedies, the Department believes that the only 
constitutional course for the courts if Congress were to adopt 
this legislation would be to dismiss such actions on the 
merits. Similarly, because the Supreme Court has said that a 
``final'' government action is necessary to determine whether a 
government action has gone ``too far'' and compensation is due 
under the fifth amendment, the courts very likely could not 
resolve claims which are declared ``ripe'' by this bill but 
which fail to meet the constitutional standard of ``finality.''

B. Provisions concerning claims against the United States

    The concerns raised by the provisions of H.R. 1534 relating 
to takings claims against the United States are quite different 
from the concerns raised by the provisions addressing claims 
against local governments. Nonetheless, these provisions are 
equally objectionable as a matter of sound public policy, and 
raise serious constitutional concerns as well.
    First, the proponents of H.R. 1534 have failed to identify 
a genuine need for these provisions. Legislation to address the 
so-called Tucker Act ``shuffle'' was originally developed 
several years ago to address a problem that formerly existed: 
namely that a litigant pursuing a takings claim against the 
United States in the Court of Federal Claims could be forever 
barred from pursuing a claim based on the same agency action 
under the Administrative Procedure Act in Federal district 
court, or, conversely, a litigant pursuing an APA claim in 
district court could be forever barred from pursuing his 
takings claim in the Court of Federal Claims. Subsequent to the 
development of this legislative proposal, this problem was 
eliminated by the decision of the U.S. Court of Appeals for the 
Federal Circuit in Loveladies Harbor, Inc. v. United States. As 
explained by the Judicial Conference of the United States, the 
court in Loveladies Harbor ``held that section 1500 may be read 
narrowly to include only a claim for the same relief. Under 
that rationale, a claim for money damages may proceed in the 
Court of Federal Claims while a claim arising out of the same 
events, but seeking a different relief, may proceed in district 
court.'' Thus, while this proposal was apparently developed to 
address a legitimate issue, the issue has been resolved and 
legislation to address it is no longer needed.
    We recognize that there remains a separate, relatively 
narrow issue arising from the fact that an owner seeking to 
challenge Federal agency action must pursue a takings claim and 
an APA claim in separate courts. However, this issue can be 
addressed in a straightforward way without, like this bill, 
creating the numerous other problems described below. 
Specifically, the problem of bifurcated jurisdiction can be 
addressed simply by granting the article III district courts 
jurisdiction to address takings claims against the United 
States without regard to the amount of the claim, along with 
other claims arising from the same agency action. An amendment 
offering this solution as a substitute for H.R. 992 was 
defeated in the U.S. House of Representatives by a tie vote of 
206-to-206.
    Apart from this narrow issue, the provisions of H.R. 1534 
concerning claims against the United States do not appear to 
address any legitimate issue or problem. On the other hand, 
these provisions raise a number of substantial policy and 
constitutional concerns.
            Encourage extensive forum shopping
    These provisions would encourage wasteful forum shopping on 
substantive challenges attempting to invalidate regulations. By 
granting concurrent jurisdiction over any type of legal claim 
challenging agency action affecting private property to the 
Federal district courts and the Court of Federal Claims, these 
provisions would permit litigants to engage in tactical judge 
shopping between these two courts. Because the Court of Federal 
Claims is a court with nationwide jurisdiction, a litigant 
anywhere in the United States seeking to challenge an agency 
action could choose to bring a property-related action in the 
Court of Federal Claims or the local Federal district court. 
For example, a litigant could choose one or the other court 
depending upon the presence or absence of particular precedent 
in each court, the perceived predispositions of the judges on 
each court, and so no public purpose would be served by this 
forum shopping. On the other hand, this forum shopping would 
lead to contrary lines of precedent in different courts, 
differential administration of the law in similar cases, and 
long-term loss of confidence in the judicial system.
    The bill also would encourage forum shopping between 
different Federal courts of appeal. So long as a lawsuit were 
filed based ``in whole or part'' on this bill, appellate 
jurisdiction would lie exclusively in the U.S. Court of Appeals 
for the Federal Circuit, whether the suit were initially filed 
in a Federal district court or in the U.S. Court of Federal 
Claims. On the other hand, if jurisdiction over a suit were not 
based on this bill, and the suit were initially filed in a 
Federal district court, appellate jurisdiction would lie in the 
regular Federal regional court of appeal. Thus, by ``electing'' 
to file an action under this bill, or by choosing not to do so, 
a litigant could determine which of two Federal appeals courts 
would have appellate jurisdiction over the case. Again, no 
legitimate public purpose would be served by creating this 
option to forum shop. Instead, creating such an option have the 
same adverse effect as would creating the option to forum shop 
at the trial level.
    Finally, creating concurrent jurisdiction over a broad 
range of issues affecting private property in different trial 
courts and different courts of appeal would have the perverse 
effect of requiring a trial judge to apply different precedents 
to resolve a particular case depending upon which 
jurisdictional provisions the claimant chose to rely upon when 
he or she filed suit. This bill would routinely require the 
same Federal trial judge exercising jurisdiction in the same 
case to apply either of two interpretations of a Federal law 
depending upon which court of appeals would have appellate 
jurisdiction over the case. Thus, if a litigant chose not to 
elect to rely on this bill, the trial court would be required 
to apply relevant precedent from the appropriate regional court 
of appeal which would have appellate jurisdiction over the 
case. On the other hand, if a litigant elected to rely on this 
bill, the trial court would be required to apply relevant 
precedent from the Federal circuit which would have appellate 
jurisdiction in that circumstance. The complicated choice of 
law inquiry mandated by this bill would impose a severe, 
confusing, and useless burden on the Federal trial courts.
            Creates legal uncertainty and confusion
    By granting broad new jurisdiction to the U.S. Court of 
Appeals for the Federal Circuit, the bill also would create 
significant confusion and uncertainty about the law governing 
innumerable Federal actions and programs. The U.S. Court of 
Appeals for the Federal Circuit was created in 1982 to exercise 
nationwide appellate jurisdiction in a relatively narrow 
category of specialized subjects, including takings and other 
monetary claims against the United States and trademark and 
copyright cases. Because the court now lacks any appellate 
jurisdiction over many other types of lawsuits challenging 
Federal agency actions under the Administrative Procedure Act, 
there is little or no relevant Federal circuit precedent on 
these issues. Granting new appellate jurisdiction over these 
issues to this court of nationwide jurisdiction would encourage 
efforts to relitigate issues already resolved in other 
circuits, creating significant new confusion and uncertainty in 
the law governing numerous Federal actions and programs to the 
detriment of Federal agencies, the public, and the regulated 
community.
    Similar confusion and uncertainty would be created by the 
legislation's provisions that authorize the Court of Federal 
Claims, which also has nationwide jurisdiction, to invalidate 
Federal statutes, regulations, permit decisions, enforcement 
activities and other agency actions. This expansion of the 
Court of Federal Claims' jurisdiction would promote challenges 
to Federal Government safeguards for people, property, 
communities and the environment.
            Overrides preclusive review provisions
    Because the bill grants the Federal district courts and the 
Court of Federal Claims concurrent jurisdiction over claims 
against the United States ``[n]otwithstanding any other 
provision of law and notwithstanding the issues of law,'' the 
bill would override numerous ``preclusive review'' provisions 
assigning jurisdiction over particular claims within the scope 
of this bill to specific Federal courts. Preclusive review 
provisions are designed to put an early end to legal disputes 
over new agency rulemakings, as much for the benefit of the 
regulated community as for the benefit of the public. An 
example of the preclusive review provision is found in the 
Clean Air Act, which limits judicial review of nationally 
applicable regulations under the Act to the U.S. Court of 
Appeals for the District of Columbia, requires that petitions 
for judicial review be filed within 60 days of Federal Register 
notice, and provides that after such 60 days a regulation may 
not be challenged in an enforcement action. Other preclusive 
review provisions are found in the Safe Drinking Water Act, the 
Occupational Safety and Health Act and the Consumer Product 
Safety Act.30 Because the bill would permit actions 
to be filed in either the Court of Federal Claims or numerous 
Federal district courts, and establish a 6-year statute of 
limitation for the filing of such actions, the bill would 
destroy the prompt and definitive resolution of legal issues 
intended by the preclusive review provisions and create 
additional confusion and uncertainty about the legal rules 
governing many Federal programs.
---------------------------------------------------------------------------
    \30\ CRS Report for Congress, ``Property Rights' Bills Take a 
Process Approach: H.R. 992 and H.R. 1534,'' Sept. 22, 1997 (97-877A).
---------------------------------------------------------------------------
            Promotes judicial activism
    The bill would have the effect of subtracting from the 
authority of all other lower Federal courts and expanding the 
jurisdiction of the Court of Federal Claims and the U.S. Court 
of Appeals for the Federal Circuit, thereby promoting judicial 
activism on behalf of an exaggerated reading of the takings 
clause.
    Largely as a result of historical accident, these courts 
have a philosophical cast that is distinctive within the 
Federal judiciary. As a result of the Federal Courts 
Improvement Act of 1982, which created the U.S. Claims Court 
(now the Court of Federal Claims), President Ronald Reagan was 
able to appoint every judge on the Court of Federal Claims, and 
his appointees continue to dominate that court. The 1982 act 
also established the U.S. Court of Appeals for the Federal 
Circuit, giving Presidents Reagan and Bush the opportunity to 
make 11 appointments to this court and to name 8 of the 11 
judges currently serving on the court. Perhaps as a result of 
the unbalanced composition of these courts, certain observers 
have come to the conclusion that these courts have taken an 
unusually activist stance in attempting to expand the scope of 
the takings clause. See, e.g., Michael C. Blumm, ``The End of 
Environmental Law? Libertarian Property, Natural Law, and the 
just compensation clause in the Federal circuit, 25 Envt'l L. 
171 (1995).
    The Supreme Court has clearly established that certain 
regulations can affect takings requiring the payment of just 
compensation under the fifth amendment and we support this 
principle. However, until early in this century, the takings 
clause was not believed to reach regulations under any 
circumstances. As Justice Scalia stated in Lucas v. South 
Carolina Coastal Council, 505 U.S. 1003, 1028 n.15 (1992), 
``early constitutional theorists did not believe that the 
takings clause embraced regulations of property at all.'' 
Moreover, the Supreme Court has repeatedly recognized that the 
takings clause only applies to regulations under ``extreme 
circumstances.'' United States v. Riverside Bayview Homes, 
Inc., 474 U.S. 121, 126 (1985).
    We are deeply concerned about efforts to unreasonably 
expand the scope of the takings clause and we oppose this 
effort to reconfigure the jurisdiction of Federal courts with 
the apparent goal of encouraging this agenda.
            Raises serious constitutional problems
    Finally, these provisions are very likely unconstitutional 
because they would vest broad judicial powers in the article I 
Court of Federal Claims in violation of the requirement of 
article III of the Constitution that the judicialpower be 
placed in the hands of an independent judiciary. H.R. 1534 would grant 
the Court of Federal Claims new and sweeping jurisdiction to invalidate 
any statute or regulation ``affecting private property rights.'' 
Congress has an independent responsibility to safeguard our 
constitutional system of government and to ensure that its actions do 
not violate the Constitution.
    Article III of the Constitution provides that ``[t]he 
judicial Power of the United States, shall be vested in one 
Supreme Court, and in such inferior Courts as the Congress may 
from time to time ordain and establish.'' 31 The 
defining attributes of article III judges are life tenure and 
protected salaries, which are meant to safeguard their 
independence from the legislative branch and insulate them from 
political pressure. The Court of Federal Claims, on the other 
hand, is an administrative tribunal, or a so-called 
``legislative'' court created under article I. The judges who 
sit on the Court of Federal Claims do not have the tenure and 
salary protections of article III judges. Broad grants of 
judicial power to courts that lack the attributes of article 
III judges will be struck down by the courts as 
unconstitutional. See Northern Pipeline Constr. Co. v. Marathon 
Pipe Line Co., 458 U.S. 50 (1982).
---------------------------------------------------------------------------
    \31\ U.S. Constitution, art. III, sec. 1.
---------------------------------------------------------------------------
    It is precisely because of their independence that article 
III judges can exercise the critical responsibility of 
interpreting the Constitution and invalidating acts of Congress 
and the Executive. See Marbury v. Madison,  U.S. (1 Cranch) 
137, 177 (1803). Similar expansive judicial authority cannot 
properly be granted to article I courts.

C. Traficant amendment

    While undoubtedly well intended, the Traficant amendment 
added to H.R. 1534 during the House debate, and included in the 
Senate bill as reported by the Committee, is completely 
unworkable. Moreover, even if it could be made to work, it 
would be essentially useless and highly destructive of public 
confidence in government.
    The amendment is unworkable because it is so broad in 
scope. The amendment would require Federal agencies to give 
notice to property owners explaining their rights under the 
bill and the procedures for obtaining any compensation that may 
be due, ``[w]henever a Federal agency takes an agency action 
limiting the use of private property that may be affected by 
this Act.'' The bill defines ``private property'' for the 
purpose of this provision as including ``all interests 
constituting property, as defined by Federal or State law, 
protected under the fifth and fourteenth amendments to the 
United States Constitution.'' According to its terms, this 
amendment would impose an extraordinarily burdensome obligation 
on Federal agencies to give notice to property owners every 
time an agency acts to somehow limit or restrict rights in 
property in any fashion. This requirement would apply to all 
Federal agencies without limit and therefore would apply, for 
example, to all actions of the Federal Drug Administration 
regulating drugs, regulations of the Securities and Exchange 
Commission affecting interests in securities, safety orders 
issued by Federal aviation officials, and so on.
    While many Federal agencies have appropriate procedures for 
notifying members of the regulated community of changes in laws 
and regulations, this broad, ill-defined mandate would impose a 
sweeping new obligation on every Federal agency to provide 
notice virtually every time they act. As the Department of 
Justice noted, the Traficant amendment would ``apply to 
countless Federal protections 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 * * *'' 32 And 
it should be noted, that this amendment makes no exemptions for 
national security or threats to life, liberty or neighboring 
property. Thus, this amendment is a mandate for a massive, but 
ill-defined bureaucratic exercise.
---------------------------------------------------------------------------
    \32\ Department of Justice letter to Senator Patrick Leahy (Feb. 3, 
1998).
---------------------------------------------------------------------------
    Equally important, the notice called for by the amendment 
would serve no useful purpose for citizens. The bill would 
require agencies, every time they take an action affecting 
property within the meaning of this amendment, to give notice 
of the owners of affected property ``explaining their rights 
under this Act and the procedures for obtaining any 
compensation that may be due them under this Act.'' Because 
most regulatory actions do not effect takings, and because this 
bill does not purport to alter the substantive standards for a 
taking, this notice would be extraordinarily confusing and 
misleading to most citizens. It would create false expectations 
of an entitlement to ``compensation'' from the public treasury, 
ultimately generating public resentment and confusion.
    This amendment would be akin to mailings many Americans 
receive announcing with great fanfare that ``you may already be 
a winner,'' when in fact the chances of ``winning'' are remote, 
or the available ``prize'' is of less value than might 
initially appear. This approach is hardly a sound model for 
responsible government. Finally, since the amendment requires 
Federal agencies to give notice to all property owners affected 
by this Act, Federal agencies would have to develop a massive 
database of names and addresses of Americans and what property 
interests they have at every moment in land, buildings, 
machinery, partnerships, corporations, estates and other types 
of property.

                     Broad Opposition to H.R. 1534

    Although ours is, at least based on the recorded vote, the 
minority view on this Committee, we find ourselves surrounded 
by a broad coalition of opposition to H.R. 1534.
    A bipartisan group of 40 attorneys general (representing 37 
States and 3 territories) signed a letter in opposition to this 
legislation. They wrote, ``H.R. 1534 invades the province of 
state and local governments and directs federal judges to 
intrude into matters pending before state and local officials 
and courts.'' 33
---------------------------------------------------------------------------
    \33\ Letter from 40 attorneys general to Hon. Henry Hyde (Sept. 24, 
1997).
---------------------------------------------------------------------------
    The administration strongly opposes H.R. 1534, including 
the Tucker Act provisions derived from H.R. 992 and added to 
H.R. 1534 during markup of the bill in the Senate Judiciary 
Committee. The Attorney General, the Secretary of the Interior, 
the Secretary of Transportation, the administrator of the 
Environmental Protection Agency, and the chair of the Council 
on Environmental Quality have stated that they would recommend 
that the President veto H.R. 1534. The administration has 
followed those recommendations and pledged to veto H.R. 1534. 
As stated by Vice President Gore, ``the President has heard 
your protests, even if the Congress has not. If H.R. 1534, or 
any similar measure that would undermine local prerogatives and 
waste taxpayer money, comes to the President's desk, he will 
veto it.'' 34
---------------------------------------------------------------------------
    \34\ Statement of Vice President Gore before to State municipal 
league presidents and executive directors (Mar. 9, 1998).
---------------------------------------------------------------------------
    The Department of Justice has written a strong letter in 
opposition to this bill, citing particularly that the bill 
would: (1) dramatically shift authority to decide local issues 
from State and local to Federal courts; (2) allow developers 
and others to sue local officials in Federal court without 
adequately seeking to resolve their disputes outside the 
courtroom, thereby reducing the role of local officials in 
local decisionmaking; (3) deem ``ripe'' for adjudication cases 
in which there is an insufficient factual record for decision, 
raising the risk of poorly informed rulings; (4) disrupt the 
administration of vital Federal protections; (5) complicate 
judicial application of longstanding precedent under the just 
compensation clause of the fifth amendment 35 
regarding the relevant ``parcel as a whole''; and (6) burden 
the already overcrowded federal docket at the expense of 
meritorious claims.36 The Justice Department 
subsequently submitted detailed analysis of H.R. 1534 as it 
passed the House, which concluded that the House amendments 
``do not address the fundamental flaws inherent in the bill. In 
some important respects, the changes make the bill even more 
problematic'' 37
---------------------------------------------------------------------------
    \35\ U.S. Constitution, amend. V (``[N]or shall private property be 
taken for public use, without just compensation.'').
    \36\ Letter from the Department of Justice to Hon. Henry Hyde (Oct. 
7, 1997).
    \37\ See letter from Department of Justice to Senator Patrick Leahy 
(Feb. 3, 1998).
---------------------------------------------------------------------------
    The Conference of Chief Justices, representing the highest 
courts of all 50 States, passed a resolution that the 
Conference ``strongly believes that `takings' cases arising 
under state law should be decided on the merits in state courts 
prior to any federal court involvement; and strongly opposes 
legislation that would drastically change the traditional state 
and federal roles in `takings' cases and upset the balance of 
our federal system in an area that is fundamentally a state and 
local matter.'' 38
---------------------------------------------------------------------------
    \38\ Letter from Conference of Chief Justices to Senator Patrick 
Leahy with resolution (Feb. 13, 1998).
---------------------------------------------------------------------------
    The State chief justices are joined in opposition to the 
bill by the National Governors Association, the American 
Planning Association, the National League of Cities, the U.S. 
Conference of Mayors, the National Conference of State 
Legislatures, the National Association of Counties, the 
International Municipal Lawyers Association, and the Judicial 
Conference of the United States. The League of Cities and 
Conference of Mayors observed that H.R. 1534:

          [W]ould impose severe and unwarranted burdens on 
        America's cities and towns by greatly enhancing the 
        ability of developers and other claimants to sue cities 
        in federal court for alleged ``takings.'' Such a 
        federal action would expose local governments to 
        increased financial liability and interfere with the 
        ability of local governments to make reasonable land 
        use decisions.39
---------------------------------------------------------------------------
    \39\ Letter from the League of Cities and Conference of Mayors to 
Hon. Henry Hyde (Sept. 24, 1997).

---------------------------------------------------------------------------
    Similarly, letters from the Judicial Conference note:

          The bill would alter deeply ingrained federalism 
        principles by prematurely involving the federal courts 
        in property regulatory matters that have historically 
        been processed at the state and local levels. The bill 
        may also adversely affect the administration of justice 
        and delay the resolution of property 
        claims.40
---------------------------------------------------------------------------
    \40\ Letter from the Judicial Conference of the United States to 
Hon. Henry Hyde (Sept. 29, 1997).

    In addition, for the first time, the National Association 
of Counties is also opposing H.R. 1534 and passed a resolution 
---------------------------------------------------------------------------
that states:

          The proposed legislation infringes on a county's 
        regulatory authority and its responsibility to all 
        citizens. Local land use ordinances and environmental 
        and health regulations attempt to balance the interests 
        of all, seeking the proper blend of safety and 
        development to make our communities better places to 
        live. Communities should have the right to keep 
        factories away from residential areas and adult stores 
        away from schools. These types of decisions are best 
        made at the local level, with ample opportunity for all 
        parties to seek nonjudicial solutions.41
---------------------------------------------------------------------------
    \41\ Letter from National Association of Counties with resolution 
to Senator Patrick Leahy (April 3, 1998).

    The National Association of Towns and Townships, 
representing 11,000 local governments and many tens of 
thousands of local elected officials, stresses that the bill 
would ``involve federal courts in those disputes well before 
local governments and landowners have had the opportunity to 
fully consider the range of development alternatives that would 
be acceptable to both parties.'' 42
---------------------------------------------------------------------------
    \42\ Letter from National Association of Towns and Townships to 
Senator Patrick Leahy (Feb. 24, 1998).
---------------------------------------------------------------------------
    Major religious groups, including the U.S. Catholic 
Conference, the National Council of Churches of Christ and 
Evangelical and Jewish groups also oppose this legislation. One 
of the reasons they gave was the lack of equity to neighbors.
    Other State and local government organizations, including 
the California State Association of Counties and the League of 
California Cities also oppose this bill. In addition, a broad 
array of environmental and other national public interest 
groups oppose this bill, including the League of Women Voters, 
American Federation of State, County and Municipal Employees, 
National Wildlife Federation, League of Conservation Voters, 
Sierra Club, Center for Marine Conservation, Environmental 
Defense Fund, National Audubon Society, National Trust for 
Historic Preservation, Earthjustice Legal Defense Fund, 
Alliance for Justice, United Steelworkers of America, Izaak 
Walton League of America, Scenic America, The Wilderness 
Society, and the Natural Resources Defense Council.

                               conclusion

    We strenuously oppose this legislation. The proponents have 
failed to identify any significant problem or issue which calls 
for this type of sweeping legislative response. Moreover, the 
bill would have numerous adverse effects on local communities 
across America, tens of millions of homeowners, the regulated 
community, and the public as a whole. Finally, this 
legislation, if enacted, would probably be a gesture in 
futility because it would likely be found unconstitutional in 
several important respects.
    We do not doubt that in isolated situations, a landowner 
may face unreasonable delays and unnecessary bureaucracy in the 
local land-use planning process. But if land-use procedures in 
particular areas are in need of reform, the solution is to urge 
revision of those local laws at the local level. States and 
localities across the country are responding to the call, 
adopting permitting deadlines, streamlining application 
procedures, establishing development ombudsmen, and using other 
creative solutions to balance the rights of all affected 
citizens. We should not, however, federalize local land-use 
planning and effectively revise land-use procedures across the 
Nation in one fell swoop, as H.R. 1534 would do.
    It is a sad commentary on the state of the Congress that 
the U.S. Senate would seriously entertain this type of 
legislation, so clearly designed to advance the financial 
interest of a narrow special interest, over the objection of 
virtually every responsible institution or interest affected by 
this legislation, including but not limited to every major 
national organization representing State and local governments, 
the Administrative Office of the U.S. Courts, the Conference of 
State Chief Justices, and the U.S. Department of Justice. This 
misguided legislative effort is all the more striking because 
this attempt to federalize local issues, impose national 
standards on local governments, expand the authority and 
workload of the Federal courts, and encourage Federal judicial 
activism, flatly contradicts some of the most fervently held 
values and beliefs of the supporters of this legislation. 
Americans realize that a proper respect for property rights can 
only take place through individualized, targeted approaches to 
problems and not sweeping changes that undercut local systems 
for problem-solving.

                                   Patrick Leahy.
                                   J.R. Biden, Jr.
                                   Dianne Feinstein.
                                   Dick Durbin.
                                   Ted Kennedy.
                                   Herb Kohl.
                                   Russ Feingold.
                                   R.G. Torricelli.

                      IX. Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
H.R. 1534, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

UNITED STATES CODE

           *       *       *       *       *       *       *


TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE

           *       *       *       *       *       *       *


PART IV--JURISDICTION AND VENUE

           *       *       *       *       *       *       *


CHAPTER 85--DISTRICT COURTS; JURISDICTION

           *       *       *       *       *       *       *


Sec. 1343. Civil rights and elective franchise

    (a) The district * * *

           *       *       *       *       *       *       *

    (b) For purposes of this section--
         (1) the District of Columbia shall be considered to be 
        a State; and
         (2) any Act of Congress applicable exclusively to the 
        District of Columbia shall be considered to be a 
        statute of the District of Columbia.
    (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 where no claim of a violation of a State law, right, 
or privilege is alleged, and where a parallel proceeding in 
State court arising out of the same operative facts as the 
district court proceeding is not pending.
    (d) Where 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 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 regarding the extent of permissible uses on 
        the property that has been allegedly infringed or 
        taken;
          (ii)(I) one meaningful application, as defined by the 
        locality concerned within that State or territory, to 
        use the property has been submitted but has not been 
        approved, and the party seeking redress has applied for 
        one appeal or waiver which has not been approved, where 
        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 the 
        locality concerned within that State or territory, to 
        use the property has been submitted but has not been 
        approved, 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 not approved, 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 or 
                waiver with respect to the disapproval, which 
                has not been approved, where the applicable 
                statute, ordinance, custom, or usage provides a 
                mechanism of appeal or waiver by an 
                administrative agency; and
          (iii) in a case involving the uses of real property, 
        where 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.
    (B) The party seeking redress shall not be required to 
apply for an appeal or waiver described in paragraph (1)(B) 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 this subsection, a final decision shall 
not require the party seeking redress to 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. 1346. United States as defendant

    (a) The district courts shall have original jurisdiction, 
concurrent with the United States Court of Federal Claims, of:
          (1) Any civil * * *

           *       *       *       *       *       *       *

    (b)(1) Subject to the provisions of chapter 171 of this 
title, the district courts, together with the United States 
District Court for the District Court for the District of the 
Canal Zone and the District Court of the Virgin Islands, shall 
have exclusive jurisdiction of civil actions on claims against 
the United States, for money damages, accruing on and after 
January 1, 1945, for injury or loss of property, or personal 
injury or death caused by the negligent or wrongful act or 
omission of any employee of the Government while acting within 
the scope of his office or employment, under circumstances 
where the United States, if a private person, would be liable 
to the claimant in accordance with the law of the place where 
the act or omission occurred.

           *       *       *       *       *       *       *

    (3) Any civil action filed under section 5 of the Citizens 
Access to Justice Act of 1998.

           *       *       *       *       *       *       *

    (g) Subject to the provisions of chapter 179, the district 
courts of the United States shall have exclusive jurisdiction 
over any civil action commenced under section 453(2) of title 
3, by a covered employee under chapter 5 of such title.
    (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 to use the property 
        has been submitted but has not been approved, and the 
        party seeking redress has applied for one appeal or 
        waiver which has not been approved, 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, if it cannot provide the relief 
requested, or if application or reapplication to use the 
property would be futile.
    (3) Nothing in this subsection alters the substantive law 
of takings of property, including the burden of proof borne by 
the plaintiff.

           *       *       *       *       *       *       *


           CHAPTER 91--UNITED STATES COURT OF FEDERAL CLAIMS

Sec.
1491. Claims against United States generally; actions involving 
          Tennessee Valley Authority.
     * * * * * * *
[1500. Pendency of claims in other courts.]
     * * * * * * *

 1491. Claims against United States generally; actions involving 
                    Tennessee Valley Authority

    (a)(1) [The United States Court of Federal Claims shall 
have jurisdiction to render judgment upon any claim against the 
United States founded either upon the Constitution, or any Act 
of Congress or any regulation of an executive department, or 
upon any express or implied contract with the United States, or 
for liquidated or unliquidated damages in cases not sounding in 
tort.] The United States Court of Federal Claims shall have 
jurisdiction to render judgment upon any claim against the 
United States for monetary relief founded either upon the 
Constitution or any Act of Congress or any regulation of an 
executive department or upon any express or implied contract 
with the United States, in cases not sounding in tort, or for 
invalidation of any Act of Congress or any regulation of an 
executive department under section 5 of the Citizens Access to 
Justice Act of 1998. For the purpose of this paragraph, an 
express or implied contract with the Army and Air Force 
Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast 
Guard Exchanges, or Exchange Councils of the National 
Aeronautics and Space Administration, shall be considered an 
express or implied contract with the United States.
    (2) In any case within its jurisdiction, the Court of 
Federal Claims shall have the power to grant injunctive and 
declaratory relief when appropriate. To provide an entire 
remedy and to complete the relief afforded by the judgment, the 
court may, as an incident of and collateral to any such 
judgment, issue orders directing restoration to office or 
position, placement in appropriate duty or retirement status, 
and correction of applicable records, and such orders may be 
issued to any appropriate official of the United States. In any 
case within its jurisdiction, the court shall have the power to 
remand appropriate matters to any administrative or executive 
body or official with such direction as it may deem proper and 
just. The Court of Federal Claims shall have jurisdiction to 
render judgment upon any claim by or against, or dispute with, 
a contractor arising under section 10(a)(1) of the Contract 
Disputes Act of 1978, including a dispute concerning 
termination of a contract, rights in tangible or intangible 
property, compliance with cost accounting standards, and other 
nonmonetary disputes on which a decision of the contracting 
officer has been issued under section 6 of that Act.
    (3) In cases otherwise within its jurisdiction, the Court 
of Federal Claims shall also have supplemental jurisdiction, 
concurrent with the courts designated under section 1346(b), to 
render judgment upon any related tort claim authorized under 
section 2674.
    (4) In proceedings within the jurisdiction of the Court of 
Federal Claims which constitute judicial review of agency 
action (rather than de novo proceedings), the provisions of 
section 706 of title 5 shall apply.
    (5) 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 to use the property 
        has been submitted but has not been approved, and the 
        party seeking redress has applied for one appeal or 
        waiver which has not been approved, 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, if it cannot provide the relief 
requested, or if application or reapplication to use the 
property would be futile. Nothing in this paragraph alters the 
substantive law of takings of property, including the burden of 
proof borne by the plaintiff.

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[Sec. 1500. Pendency of claims in other courts

    [The United States Court of Federal Claims shall not have 
jurisdiction of any claim for or in respect to which the 
plaintiff or his assignee has pending in any other court any 
suit or process against the United States or any person who, at 
the time when the cause of action alleged in such suit or 
process arose, was, in respect thereto, acting or professing to 
act, directly or indirectly under the authority of the United 
States.]

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