109th CONGRESS
1st Session
H. R. 4128
IN THE SENATE OF THE UNITED STATES
November 4, 2005
Received; read twice and referred to the Committee on the Judiciary
AN ACT
To protect private property rights.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Private Property Rights Protection Act of
2005'.
SEC. 2. PROHIBITION ON EMINENT DOMAIN ABUSE BY STATES.
(a) In General- No State or political subdivision of a State shall exercise
its power of eminent domain, or allow the exercise of such power by any
person or entity to which such power has been delegated, over property to
be used for economic development or over property that is subsequently used
for economic development, if that State or political subdivision receives
Federal economic development funds during any fiscal year in which it does
so.
(b) Ineligibility for Federal Funds- A violation of subsection (a) by a
State or political subdivision shall render such State or political subdivision
ineligible for any Federal economic development funds for a period of 2
fiscal years following a final judgment on the merits by a court of competent
jurisdiction that such subsection has been violated, and any Federal agency
charged with distributing those funds shall withhold them for such 2-year
period, and any such funds distributed to such State or political subdivision
shall be returned or reimbursed by such State or political subdivision to
the appropriate Federal agency or authority of the Federal Government, or
component thereof.
(c) Opportunity to Cure Violation- A State or political subdivision shall
not be ineligible for any Federal economic development funds under subsection
(b) if such State or political subdivision returns all real property the
taking of which was found by a court of competent jurisdiction to have constituted
a violation of subsection (a) and replaces any other property destroyed
and repairs any other property damaged as a result of such violation.
SEC. 3. PROHIBITION ON EMINENT DOMAIN ABUSE BY THE FEDERAL GOVERNMENT.
The Federal Government or any authority of the Federal Government shall
not exercise its power of eminent domain to be used for economic development.
SEC. 4. PRIVATE RIGHT OF ACTION.
(a) Cause of Action- Any owner of private property who suffers injury as
a result of a violation of any provision of this Act may bring an action
to enforce any provision of this Act in the appropriate Federal or State
court, and a State shall not be immune under the eleventh amendment to the
Constitution of the United States from any such action in a Federal or State
court of competent jurisdiction. In such action, the defendant has the burden
to show by clear and convincing evidence that the taking is not for economic
development. Any such property owner may also seek any appropriate relief
through a preliminary injunction or a temporary restraining order.
(b) Limitation on Bringing Action- An action brought under this Act may
be brought if the property is used for economic development following the
conclusion of any condemnation proceedings condemning the private property
of such property owner, but shall not be brought later than seven years
following the conclusion of any such proceedings and the subsequent use
of such condemned property for economic development.
(c) Attorneys' Fee and Other Costs- In any action or proceeding under this
Act, the court shall allow a prevailing plaintiff a reasonable attorneys'
fee as part of the costs, and include expert fees as part of the attorneys'
fee.
SEC. 5. NOTIFICATION BY ATTORNEY GENERAL.
(a) Notification to States and Political Subdivisions-
(1) Not later than 30 days after the enactment of this Act, the Attorney
General shall provide to the chief executive officer of each State the
text of this Act and a description of the rights of property owners under
this Act.
(2) Not later than 120 days after the enactment of this Act, the Attorney
General shall compile a list of the Federal laws under which Federal economic
development funds are distributed. The Attorney General shall compile
annual revisions of such list as necessary. Such list and any successive
revisions of such list shall be communicated by the Attorney General to
the chief executive officer of each State and also made available on the
Internet website maintained by the United States Department of Justice
for use by the public and by the authorities in each State and political
subdivisions of each State empowered to take private property and convert
it to public use subject to just compensation for the taking.
(b) Notification to Property Owners- Not later than 30 days after the enactment
of this Act, the Attorney General shall publish in the Federal Register
and make available on the Internet website maintained by the United States
Department of Justice a notice containing the text of this Act and a description
of the rights of property owners under this Act.
SEC. 6. REPORT.
Not later than 1 year after the date of enactment of this Act, and every
subsequent year thereafter, the Attorney General shall transmit a report
identifying States or political subdivisions that have used eminent domain
in violation of this Act to the Chairman and Ranking Member of the Committee
on the Judiciary of the House of Representatives and to the Chairman and
Ranking Member of the Committee on the Judiciary of the Senate. The report
shall--
(1) identify all private rights of action brought as a result of a State's
or political subdivision's violation of this Act;
(2) identify all States or political subdivisions that have lost Federal
economic development funds as a result of a violation of this Act, as
well as describe the type and amount of Federal economic development funds
lost in each State or political subdivision and the Agency that is responsible
for withholding such funds;
(3) discuss all instances in which a State or political subdivision has
cured a violation as described in section 2(c) of this Act.
SEC. 7. SENSE OF CONGRESS REGARDING RURAL AMERICA.
(a) Findings- The Congress finds the following:
(1) The founders realized the fundamental importance of property rights
when they codified the Takings Clause of the Fifth Amendment to the Constitution,
which requires that private property shall not be taken `for public use,
without just compensation'.
(2) Rural lands are unique in that they are not traditionally considered
high tax revenue-generating properties for State and local governments.
In addition, farmland and forest land owners need to have long-term certainty
regarding their property rights in order to make the investment decisions
to commit land to these uses.
(3) Ownership rights in rural land are fundamental building blocks for
our Nation's agriculture industry, which continues to be one of the most
important economic sectors of our economy.
(4) In the wake of the Supreme Court's decision in Kelo v. City of
New London, abuse of eminent domain is a threat to the property rights
of all private property owners, including rural land owners.
(b) Sense of Congress- It is the sense of Congress that the use of eminent
domain for the purpose of economic development is a threat to agricultural
and other property in rural America and that the Congress should protect
the property rights of Americans, including those who reside in rural areas.
Property rights are central to liberty in this country and to our economy.
The use of eminent domain to take farmland and other rural property for
economic development threatens liberty, rural economies, and the economy
of the United States. The taking of farmland and rural property will have
a direct impact on existing irrigation and reclamation projects. Furthermore,
the use of eminent domain to take rural private property for private commercial
uses will force increasing numbers of activities from private property onto
this Nation's public lands, including its National forests, National parks
and wildlife refuges. This increase can overburden the infrastructure of
these lands, reducing the enjoyment of such lands for all citizens. Americans
should not have to fear the government's taking their homes, farms, or businesses
to give to other persons. Governments should not abuse the power of eminent
domain to force rural property owners from their land in order to develop
rural land into industrial and commercial property. Congress has a duty
to protect the property rights of rural Americans in the face of eminent
domain abuse.
SEC. 8. DEFINITIONS.
In this Act the following definitions apply:
(1) ECONOMIC DEVELOPMENT- The term `economic development' means taking
private property, without the consent of the owner, and conveying or leasing
such property from one private person or entity to another private person
or entity for commercial enterprise carried on for profit, or to increase
tax revenue, tax base, employment, or general economic health, except
that such term shall not include--
(A) conveying private property--
(i) to public ownership, such as for a road, hospital, airport, or
military base;
(ii) to an entity, such as a common carrier, that makes the property
available to the general public as of right, such as a railroad or
public facility;
(iii) for use as a road or other right of way or means, open to the
public for transportation, whether free or by toll;
(iv) for use as an aqueduct, flood control facility, pipeline, or
similar use;
(B) removing harmful uses of land provided such uses constitute an immediate
threat to public health and safety;
(C) leasing property to a private person or entity that occupies an
incidental part of public property or a public facility, such as a retail
establishment on the ground floor of a public building;
(D) acquiring abandoned property;
(E) clearing defective chains of title;
(F) taking private property for use by a public utility; and
(G) redeveloping of a brownfield site as defined in the Small Business
Liability Relief and Brownfields Revitalization Act (42 U.S.C. 9601(39)).
(2) FEDERAL ECONOMIC DEVELOPMENT FUNDS- The term `Federal economic development
funds' means any Federal funds distributed to or through States or political
subdivisions of States under Federal laws designed to improve or increase
the size of the economies of States or political subdivisions of States.
(3) STATE- The term `State' means each of the several States, the District
of Columbia, the Commonwealth of Puerto Rico, or any other territory or
possession of the United States.
SEC. 9. SEVERABILITY AND EFFECTIVE DATE.
(a) Severability- The provisions of this Act are severable. If any provision
of this Act, or any application thereof, is found unconstitutional, that
finding shall not affect any provision or application of the Act not so
adjudicated.
(b) Effective Date- This Act shall take effect upon the first day of the
first fiscal year that begins after the date of the enactment of this Act,
but shall not apply to any project for which condemnation proceedings have
been initiated prior to the date of enactment.
SEC. 10. SENSE OF CONGRESS.
It is the policy of the United States to encourage, support, and promote
the private ownership of property and to ensure that the constitutional
and other legal rights of private property owners are protected by the Federal
Government.
SEC. 11. BROAD CONSTRUCTION.
This Act shall be construed in favor of a broad protection of private property
rights, to the maximum extent permitted by the terms of this Act and the
Constitution.
SEC. 12. LIMITATION ON STATUTORY CONSTRUCTION.
Nothing in this Act may be construed to supersede, limit, or otherwise affect
any provision of the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 (42 U.S.C. 4601 et seq.).
SEC. 13. RELIGIOUS AND NONPROFIT ORGANIZATIONS.
(a) Prohibition on States- No State or political subdivision of a State
shall exercise its power of eminent domain, or allow the exercise of such
power by any person or entity to which such power has been delegated, over
property of a religious or other nonprofit organization by reason of the
nonprofit or tax-exempt status of such organization, or any quality related
thereto if that State or political subdivision receives Federal economic
development funds during any fiscal year in which it does so.
(b) Ineligibility for Federal Funds- A violation of subsection (a) by a
State or political subdivision shall render such State or political subdivision
ineligible for any Federal economic development funds for a period of 2
fiscal years following a final judgment on the merits by a court of competent
jurisdiction that such subsection has been violated, and any Federal agency
charged with distributing those funds shall withhold them for such 2-year
period, and any such funds distributed to such State or political subdivision
shall be returned or reimbursed by such State or political subdivision to
the appropriate Federal agency or authority of the Federal Government, or
component thereof.
(c) Prohibition on Federal Government- The Federal Government or any authority
of the Federal Government shall not exercise its power of eminent domain
over property of a religious or other nonprofit organization by reason of
the nonprofit or tax-exempt status of such organization, or any quality
related thereto.
SEC. 14. REPORT BY FEDERAL AGENCIES ON REGULATIONS AND PROCEDURES RELATING
TO EMINENT DOMAIN.
Not later than 180 days after the date of the enactment of this Act, the
head of each Executive department and agency shall review all rules, regulations,
and procedures and report to the Attorney General on the activities of that
department or agency to bring its rules, regulations and procedures into
compliance with this Act.
SEC. 15. SENSE OF CONGRESS.
It is the sense of Congress that any and all precautions shall be taken
by the government to avoid the unfair or unreasonable taking of property
away from survivors of Hurricane Katrina who own, were bequeathed, or assigned
such property, for economic development purposes or for the private use
of others.
Passed the House of Representatives November 3, 2005.
Attest:
JEFF TRANDAHL,
Clerk.
By Gerasimos C. Vans,
Deputy Clerk.
END
