To protect private property rights guaranteed by the fifth amendment to the Constitution by requiring Federal agencies to prepare private property taking impact analyses and by allowing expanded access to Federal courts.

September 10, 2001

Mr. HAGEL introduced the following bill; which was read twice and referred to the Committee on Governmental Affairs

To protect private property rights guaranteed by the fifth amendment to the Constitution by requiring Federal agencies to prepare private property taking impact analyses and by allowing expanded access to Federal courts.

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 Act of 2001'.

SEC. 2. FINDINGS.

Congress finds that--

(1) the ownership of private property plays an important role in the economic and social well-being of the Nation;

(2) the protection of private property from a taking by the Government without just compensation is an integral protection for private citizens incorporated into the United States Constitution by the fifth amendment and made applicable to the States by the fourteenth amendment;

(3) Federal agency actions that restrict the use of private property and result in a significant diminution in value of such property constitute a taking of that property and should be properly compensated;

(4) Federal agencies should consider the impact of agency actions, including regulations, on the use and ownership of private property; and

(5) owners of private property that is taken by a Federal agency action should be permitted to seek relief in Federal district court.

SEC. 3. STATEMENT OF POLICY.

The policy of the Federal Government is to protect the health, safety, and general welfare of the public in a manner that, to the extent practicable, avoids takings of private property.

SEC. 4. DEFINITIONS.

In this Act:

(1) AGENCY- The term `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.

(2) AGENCY ACTION- The term `agency action' means any action, inaction, or decision taken by an agency and includes such an action, inaction, or decision taken by, or pursuant to--

(A) a statute, rule, regulation, order, guideline, or policy; or

(B) the issuance, denial, or suspension of any permit, license, or authorization.

(3) OWNER- The term `owner' means the person with title, possession, or other property rights in property affected by any taking of such property.

(4) TAKING OF PRIVATE PROPERTY- The term `taking of private property' means any action whereby private property is taken in such a way as to require compensation under the fifth amendment to the United States Constitution.

SEC. 5. REQUIREMENT FOR PRIVATE PROPERTY TAKING IMPACT ANALYSIS.

(a) IN GENERAL- To the fullest extent possible--

(1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies under this Act; and

(2) subject to subsection (b), each agency shall complete a private property taking impact analysis before taking any agency action (including the promulgation of a regulation) which is likely to result in a taking of private property.

(b) NONAPPLICATION- Subsection (a)(2) shall not apply to--

(1) an action in which the power of eminent domain is formally exercised;

(2) an action taken--

(A) with respect to property held in trust by the United States; or

(B) in preparation for, or in connection with, treaty negotiations with foreign nations;

(3) a law enforcement action, including seizure, for a violation of law, of property for forfeiture or as evidence in a criminal proceeding;

(4) a communication between an agency and a State or local land-use planning agency concerning a planned or proposed State or local activity that regulates private property, regardless of whether the communication is initiated by an agency or is undertaken in response to an invitation by the State or local authority;

(5) the placement of a military facility or a military activity involving the use of solely Federal property;

(6) any military or foreign affairs function (including a procurement function under a military or foreign affairs function), but not including the civil works program of the Army Corps of Engineers; and

(7) any case in which there is an immediate threat to health or safety that constitutes an emergency requiring immediate response or the issuance of a regulation under section 553(b)(B) of title 5, United States Code, if the taking impact analysis is completed after the emergency action is carried out or the regulation is published.

(c) CONTENT OF ANALYSIS- A private property taking impact analysis shall be a written statement that includes--

(1) the specific purpose of the agency action;

(2) an assessment of the likelihood that a taking of private property will occur under such agency action;

(3) an evaluation of whether such agency action is likely to require compensation to private property owners;

(4) alternatives to the agency action that would--

(A) achieve the intended purposes of the agency action; and

(B) lessen the likelihood that a taking of private property will occur; and

(5) an estimate of the potential liability of the Federal Government if the Government is required to compensate a private property owner as a result of the agency action.

(d) SUBMISSION TO OMB- Each agency shall provide the analysis required under this section as part of any submission otherwise required to be made to the Office of Management and Budget relating to an agency action.

(e) PUBLIC AVAILABILITY OF ANALYSIS- An agency shall--

(1) make each private property taking impact analysis available to the public; and

(2) to the greatest extent practicable, transmit a copy of such analysis to the owner and any other person with a property right or interest in the affected property.

SEC. 6. ALTERNATIVES TO TAKING OF PRIVATE PROPERTY.

Before taking any final agency action, the agency shall fully consider alternatives described in section 5(c)(4) and shall, to the maximum extent practicable, alter the action to avoid or minimize the taking of private property.

SEC. 7. CIVIL ACTION.

(a) STANDING- If an agency action results in the taking of private property, the owner of such property may obtain appropriate relief in a civil action against the agency that has caused the taking to occur.

(b) JURISDICTION- Notwithstanding sections 1346 or 1491 of title 28, United States Code--

(1) a civil action against the agency may be brought in either the United States District Court in which the property at issue is located or in the United States Court of Federal Claims, regardless of the amount in controversy; and

(2) if property is located in more than 1 judicial district, the claim for relief may be brought in any district in which any part of the property is located.

SEC. 8. GUIDANCE AND REPORTING REQUIREMENTS.

(a) GUIDANCE- The Attorney General shall provide legal guidance in a timely manner, in response to a request by an agency, to assist the agency in complying with this Act.

(b) REPORTS-

(1) IN GENERAL- Not later than 1 year after the date of enactment of this Act and at the end of each 1-year period thereafter, each agency shall submit a report to the Director of the Office of Management and Budget and the Attorney General that identifies--

(A) each agency action that has resulted in the preparation of a taking impact analysis;

(B) the filing of a taking claim; and

(C) any award of compensation pursuant to the just compensation clause of the fifth amendment to the Constitution.

(2) PUBLICATION OF REPORTS- The Director of the Office of Management and Budget and the Attorney General shall publish in the Federal Register, on an annual basis, a compilation of the reports of all agencies made under this paragraph.

SEC. 9. PRESUMPTIONS IN PROCEEDINGS.

For the purpose of any agency action or administrative or judicial proceeding, there shall be a rebuttable presumption that the costs, values, and estimates in any private property takings impact analysis shall be outdated and inaccurate, if--

(1) such analysis was completed 5 years or more before the date of such action or proceeding; and

(2) such costs, values, or estimates have not been modified within the 5-year period preceding the date of such action or proceeding.

SEC. 10. RULES OF CONSTRUCTION.

Nothing in this Act shall be construed to--

(1) limit any right or remedy, constitute a condition precedent or a requirement to exhaust administrative remedies, or bar any claim of any person relating to such person's property under any other law, including claims made under this Act, section 1346 or 1402 of title 28, United States Code, or chapter 91 of title 28, United States Code; or

(2) constitute a conclusive determination of--

(A) the value of any property for purposes of an appraisal for the acquisition of property, or for the determination of damages; or

(B) any other material issue.

SEC. 11. EFFECTIVE DATE.

This Act shall take effect 120 days after the date of enactment of this Act.

END