vide financial compensation when a person's land is condemned for a highway. The same principles should apply when land is drastically devalued when Federal bureaucrats declare it a wetland.

In order to correct this infringement on the rights of the citizens of Utah, I have worked with Senator Dole, Senator Bennett and several other Members of Congress to produce the Omnibus Property Rights Act of 1995. This bill requires that when the Federal Government commits a taking of property, that it compensate the owner of the property.

The Omnibus Property Rights Act contains several features which combine to protect private property in a responsible and reasonable manner. The bill is faithful to existing Supreme Court rulings. Title II of the bill codifies and clarifies the area of takings law and court jurisdiction to enable the property owner to vindicate his or her rights. Title IV requires that all Federal agencies examine proposed regulations to assess the "takings impact," of those regulations. Title V creates a streamlined administrative remedy for claims arising under the much maligned Endangered Species Act and the wetlands provision of the Clean Water Act. This will help to avoid costly litigation. Lastly, and perhaps most importantly, all awards or settlements for takings claims will be paid out of agency budgets.

All these provisions will combine to achieve remarkable results. Not only will Utah property owners be equipped to defend themselves, but the Federal Government will benefit from this bill as well. By forcing the agencies to consider the costs of their takings, the agencies will steer away from unwarranted regulation. The clarifications in the law will permit both the agency and the property owner to more accurately determine what will be considered before taking or considered a taking before any litigation is necessary. Indeed, my bill may actually decrease litigation in this area of the law. Finally, by imposing the cost of the agency's action on the on the agency and not on innocent individual property owners, the agency will be certain to achieve its statutory goals with as little taking of private property as possible. This is long overdue, in my opinion.

In closing, this bill simply protects the rights guaranteed to all Americans by the expressed language of the fifth amendment. It does so fairly, reasonably, and in a way which allows us to protect the environment, as well as public health and safety.

So I welcome all of you here today. I look forward to hearing the testimony of our witnesses and look forward to moving ahead. [Senator Hatch submitted the following material:]

THE OMNIBUS PROPERTY RIGHTS ACT OF 1995-A SUMMARY

TITLE I-FINDINGS AND PURPOSES

Section 101. Findings. A statement of the current problem of extensive regulatory takings. Section 102. Purpose. How the bill will resolve those problems.

TITLE II-PROPERTY RIGHTS LITIGATION RELIEF

Section 201. Findings. A statement of the obstacles facing property owners who are trying to vindicate their rights.

Section 202. Purposes. How Title II will remove those obstacles.

Section 203. Definitions. Defines property to include real property, water rights, contract rights, rents, interests defined as property by state law, and other interests understood as property rights under common law.

Section 204. Compensation for Taken Property. This section sets forth the elements of a takings claim. In setting the legal framework, Supreme Court precedent is heavily relied upon. The area partial takings, which is unclear is clarified with a bright line standard, requiring compensation for losses over 33 percent. No compensation is required where the regulation prevents nuisance.

Section 205. Jurisdiction and Judicial Review. This section establishes concurrent jurisdiction for takings claims in both the federal District Courts and the U.S. Court of Federal Claims.

Section 206. Statute of Limitations. Claims must be brought with in six years of the date of the taking.

Section 207. Attorney's Fees and Costs. Any prevailing plaintiff is also awarded the costs of litigation.

Section 208. Rules of Construction. Nothing in this bill prevents the States from creating additional property rights.

Section 209. Effective Date. The provisions of the bill take effect immediately upon

enactment.

TITLE III-ALTERNATIVE DISPUTE RESOLUTION

Section 301. Alternative Dispute Resolution. Arbitration of takings disputes is available as an alternative to litigation.

TITLE IV-PRIVATE PROPERTY TAKING IMPACT ANALYSIS

Section 401. Findings and Purpose. A statement of policy that the government should avoid takings wherever possible.

Section 402. Definitions. Defines the terms used in this title.

Section 403. Private Property Taking Impact Analysis. Requires agencies to conduct a Takings impact Analysis for regulations which are likely to result in the taking of private property.

Section 404. Decisional Criteria and Agency Compliance. Agencies shall not issue rules which require an uncompensated taking.

Section 405. Rules of Construction. Nothing in this bill requires exhaustion of administrative remedies nor does anything in this bill act as a determination of property values.

Section 406. Statute of Limitations. Suits must be filed within six years of the submission of a Takings impact Analysis.

TITLE V-PRIVATE PROPERTY OWNERS BILL OF RIGHTS

Section 501. Findings and Purpose. A recognition of takings committed by the Clean Water and Endangered Species Acts.

Section 502. Definitions. Defines the terms used in this title.

Section 503. Protection of Property Rights. Agencies must develop rules to protect the rights of private property owners.

Section 504. Property Owner Consent for Entry. Agencies may not enter private property without the consent of the owner.

Section 505. Right to Review and Dispute Data Collected from Private Property. An agency may not use data collected on private property without the owner having been given access to the data and an opportunity to dispute its accuracy.

Section 506. Right to an Administrative Appeal of Wetlands Decisions. Creates an administrative appeal of a determination that land is a wetland or a denial of a permit to fill.

Section 507. Right to Administrative Appeal Under the Endangered Species Act of 1973. Provides for an administrative appeal by property owners of a determination that their land is a critical habitat or denial of a permit for an incidental take. Section 508. Compensation for Taking of Private Property. Action under either of these acts which satisfies the criteria of section 204 of this act is a taking, requiring compensation.

Section 509. Private Property Owner Participation in Cooperative Agreements. Requires the agency to notify property owners whose land is subject to an Endangered Species management agreement.

Section 510. Election of Remedies. Property owners retain the right to preserve all other remedies.

TITLE VI-MISCELLANEOUS

Section 601. Severability. If any part of this act is held unconstitutional, the remainder shall not be affected.

Section 602. Effective Date. The bill takes effect on enactment.

Our first panel this morning will consist of Mrs. Nellie Edwards from Provo, UT; Mr. Larry Gardner from St. George, UT; and Mr. Edward D. Smith from Centerville, UT. So we would ask you to take the three chairs up there, if you will, the three of you. I'm happy to welcome all of you here this morning and we look forward to taking your testimony.

Nellie Edwards is a property owner from Provo. Her land was condemned by the city as part of the airport expansion project. However, she only received a small fraction of the land's actual value because her land had been designated a wetland by the Corps of Engineers. So welcome Mrs. Edwards, we're happy to have you here.

Larry Gardner, I will introduce Larry after Mrs. Edwards finishes her testimony, so let's begin with you.

PANEL CONSISTING OF NELLIE EDWARDS, PROVO, UT; LARRY GARDNER, ST. GEORGE, UT; AND EDWARD D. SMITH, CENTERVILLE, UT

STATEMENT OF NELLIE EDWARDS

Mrs. EDWARDS. Thank you, Senator Hatch. I'm pleased to be here this day and I would really like to take just a few moments to thank you for your love and kindness and the how good you've been to me and what-tell you what a wonderful staff I think you have

er.

The CHAIRMAN. I think we need to pull those mikes a little clos

Mrs. EDWARDS. I wanted to tell you how grateful I am for the love and kindness you've shown to my family and I, and tell you that I've never worked with a more wonderful staff than what you have working with you.

The CHAIRMAN. Thank you so much.

Mrs. EDWARDS. My name is Nellie Edwards and I'm from Provo, UT. My husband, Phil Edwards, and I have been ranchers for many years. Our farm is located on the east shore of Utah Lake and boarders the Provo River as it flows into Utah Lake. We have been property owners in Utah for 50 years.

Three years ago my husband passed away. Shortly thereafter I was informed that my land had been condemned by Provo City. This land was to be used for my retirement, but instead I was told they planned to use my land to enlarge an existing extremely profitable campground near the lake. I didn't have much choice in the matter because the laws were clearly on their side. Today I walk down on the land and see the mobile trailer hookups.

Just before my husband passed away he told me to protect this lakefront property because of its prime location and to not let anyone take it away from me. I have taken this latest condemnation particularly hard because this is the third time that the Government has condemned property which belonged to this family.

In 1938, my husband and his brother owned a large dairy farm in Charleston, UT. The Government condemned this farm for the building of Deer Creek Reservoir. They took possession of the property giving very little compensation to them. Three days later as Phil and his brother rode across their land to get to their cattle, they were told by a local sheepherder that they were trespassing and that he had leased the land from the Government. At this time the first condemnation took place my husband was only 19 or 20 years old. He and his brother tried to fight for their land, but of course they lost in court.

In 1973, my family lost its land to the Government again. That property included our feed yard, a nice shed, a flowing well and good protection for our cattle. Even though we did not want to sell the property, we reached an agreement to sell it for $7,500 an acre, and this was a fair price. Since then it has become one of the State's most profitable campgrounds.

Now we find ourselves in the position of having our land taken for the third time. This time the intimidation used by these people has been very difficult because I have not had Phil to help me fight this battle. I have only asked for fair market value for my land and been told that my land was now valueless because it had been appraised as wetland, even though we had never been notified by the Corps of Engineers, nor anyone else. When I voiced my opinion that I was unable to understand how a wetland could be used for a recreational vehicle park, I was told that if I did not accept their offer, they could challenge my title to the land itself.

I have since learned that the city was able to acquire my property at $600 an acre because 27 of the 352 acres have been appraised as wetlands. Before at least the State gave us a fair price when they condemned our land. At this time my property is now being developed into an $800,000 campground, which is nearing completion. This campground will accommodate over 60 recreational vehicles per night and has excellent potential for profit. I have continued to ask how one government agency like Provo City can condemn my property and then trade it to the State of Utah. I don't understand why my land was considered worthless when I owned it, and now that it has been condemned as wetland, an expensive campground can be built on it.

I did not want to sell my land and I have been denied the opportunity of selling it for future development myself. My biggest fear, however, is that if these agencies are allowed to take this valuable recreation property at these low ball prices, they will come back and try to take the rest of my property for similar values.

I have always worked very hard to be independent. And this land was supposed to support me and my husband in our retirement years. We did not have the benefits of working for a company which would provide us with a pension. Our land is my security, and much of that security is gone just when I need it the most.

The CHAIRMAN. Thank you, Mrs. Edwards. We appreciate your testimony here today. And I'll have a few questions for you in just a few minutes.

Let me turn to Mr. Larry Gardner from St. George. He owns land which has been rendered valueless because it is a habitat of the endangered desert tortoise. He is willing to exchange his land

for nonhabitat land of equal value, but the Government will not trade with him based upon-trade with him because the Government wants the land's original value to be the value that they work with. So Mr. Gardner, we'll turn the time over to you.

STATEMENT OF LARRY GARDNER

Mr. GARDNER. Well, thank you, Senator, it's a privilege to be here today and I appreciate the opportunity.

My family has been in St. George since its founding in 1862. I will skip through some of the narrative of my written comments so I might stay within the timeframe, so please excuse me if it sounds a little bit abrupt in places. I would like to commend you very much for your aggressive leadership, though, in this vital area, very critically needed at this time.

The proposed Omnibus Property Rights Act is not just important, it is absolutely essential. Particularly in the wake of the recent Supreme Court decision concerning the designation of critical habitat for the endangered species on private property.

It is important that we understand a person's net worth is a general composite of all of his assets. Assets of course can be anything of value, that is, the number of dollars you have, the value of the house you live in, the car you drive, the stocks and bonds in your investment portfolio, as well as the amount of real estate you own. The protection of all of that property is what the fifth amendment is all about.

Most people in America would not tolerate a thief stealing your money from a bank, nor would they allow an arsonist to set fire to your home, or a computer whiz to defraud your stocks and bonds. Why then do we look the other way or even shout approval when the Government makes paupers out of people by stealing equity from private property holders.

Nobody would debate the need for occasional government condemnation. Most understand how the fifth amendment protects citizens in that process. Unfortunately, we have reached the point in America where the Government, the protector of the people, is now using circuitous and devious means to avoid that process and is destroying the financial well being of many of its citizens. By using regulations, policies, legislative acts and ensuing procedures of implementation, the Government, through inverse condemnation, is obtaining private property without just compensation to that individual. They may not end up with clear title of ownership, but by being able to tell you what you can and can't do with your property, they have total control without ownership and it hasn't cost them a dime. Thus inverse condemnation.

A classic example of that is the way the Endangered Species Act impacts private property. I support protection for and conservation of most animal and plant life, but not at the expense or denial of personal property rights of man guaranteed under the Constitution. The conservation philosophies of the Endangered Species Act is acceptable, but I do not agree with the hidden agendas of certain environmentalists or agencies who seek to control private property and all public lands under the guise of this law.

Under the Endangered Species Act, huge penalties are levied for the destruction of any of the listed species or their habitat. Origi