And with the passage of this bill, we in agriculture will do all we can to help you fashion a new environmentalism, one that taps into the ethic of the farmer and rancher, safe in our property and doing what we do best, caring for land, our crops, our herds, our children, our communities and our country.

Thank you very much, Mr. Chairman

The CHAIRMAN. Thank you. That's a very good statement and I appreciate it.

We will turn next to Ronald W. Thompson who is District Manager for the Washington County Water Conservancy District, the Regional Water Supply Agency responsible to develop water sources and resources for Washington County. He also practices law with the firm of Thompson & Hjelle and owns and operates a small livestock and farming operation.

Mr. Thompson is very active in various water resources organizations holding many leadership positions. He is also a recognized legal authority and lecturer on the Endangered Species Act and water law. We are really happy to have you here, Ron, and we look forward to taking your testimony at this time.

STATEMENT OF RONALD W. THOMPSON

Mr. THOMPSON. Thank you, Senator, I appreciate the opportunity to appear before the committee and I want to speak in favor of Senate bill 605.

Our Government was formed and founded on the principles of consent of the Government as well as the right to own and secure property without the fear of intrusion. Under the current practice of Federal agencies of taking without compensation, these fundamental rights are slowly eroding away. In a recent poll, two out of three Americans stated they had an eminent fear that the Federal Government would somehow take over one or more aspects of their lives. Loss of their private property is one of these fears. This clearly shows that the Federal Government is losing the consent of the governed.

I support the bill as a bill that has long been necessary and will serve to rectify these problems as well as greatly improve the relations of the Federal Government with private citizens and State and local governments. This bill restores the balance that is needed between the rights of individual citizens and the role of government in their lives.

The bill successfully protects property rights not only because it preserves principle, but also because it promotes responsible practice by Federal agencies. There are several ways the bill does this. First of all, the definition of property includes "easements" and "leaseholds," "the right to use water or the right to receive water" and "any interest defined as property under State law." It is important these rights as well as the actual land be protected equally since their use is equally necessary for the livelihood of the property owner. Some good examples of rights such as these that have not been protected in the past are the RS 2477 rights-of-way, Federal land leases, utility easements, and water rights.

Many problems exist in Utah with Federal agencies not recognizing RS 2477 rights-of-way. A prime example is the Cougar Pass Road in Washington County. This new road is important to the

Water District because it provides access to the Beaver Dam area, and its important ongoing studies monitoring water quality and quantity along with work we're doing with the USGS in stream gauge operation. Several years ago, the road was badly in need of repair. The county attempted to do some maintenance, but was prohibited by the BLM. An attempt was made to obtain authorization from the area office, but the local manager simply wrote a letter citing FLPMA saying the authorization would have to be obtained from the Washington DC office; an EA would have to be completed, among other things, because the road bordered a wilderness study area, any maintenance might be too disturbing, even though the road itself was not in the wilderness study area.

Another recent problem we have had relates to water right protection and easement rights illustrated-which also illustrates the importance of the bill. The Quail Creek Project was built by the Water District in 1983. It consists of a diversion damn, 4.7 miles of 66 inch pipeline, 1.2 miles of 54 inch pipeline, 3.1 miles of 48 inch pipeline, two hydropower plants, and a 40,000 acres off stream reservoir.

The portion of the pipeline from the reservoir and part of the reservoir itself are located upon BLM lands, the use of which were authorized by BLM right-of-way. Prior to issuing the right-of-way the BLM entered into a section 7 consultation with Fish and Wildlife Service. The result of this consultation was a nonjeopardy opinion. This opinion was based upon a water simulation model submitted to the district by the District to the BLM and Fish and Wildlife. The model simulate exactly how the reservoir and pipeline would be operated and how they would affect the flows in various segments of the river. The District has consistently operated the reservoir in accordance with these simulations submitted to the BLM and the Fish and Wildlife Service.

Nevertheless, in response to a perceived, but unverified, longterm decline in the populations of the proposed listed Spinedace minnow and the Virgin River Chub, both of which have been listed or proposed to be listed after the building of the Quail Creek Reservoir, the Fish and Wildlife has asked reconsultation on the project. They are now stating that they need a release to bypass our diversion damn 86 CFS.

If such conditions were to be imposed upon the project, it would destroy the entire basis upon which it was constructed. The release of 86 CFS would prohibit the district from meeting the long established (prior to 1900) water rights or the commitments from water delivery to St. George city and other municipalities. It would also prohibit the efficient operation of hydroplants along with destroying the economic justifications of this project, and ultimately result in default of obligation bonds incurred by local people to build this project.

The second important feature of the bill is that it gives more leverage to States in terms of the way they treat private property owners. It requires the Federal Government not only compensate owners for its action, but also for the deprivation of property rights that result from State agencies' enforcement of Federally mandated programs. States are also guaranteed by the bill it will not "inter

fere with the authority of any State to create additional property rights."

Third, the Federal Government is charged in title IV to "avoid taking of the private property by assessing the effect of government action on property rights." Along these same lines, Federal actions must comply with State laws, and appropriate Federal agencies must implement Endangered Species Act and the Federal Pollution Control Act, the Clean Water Act, with the least possible impact on private property. And Federal agencies must review all current actions and make sure they are in compliance with this act.

Finally, property owners are given concrete rather than simply implied property rights. One of the findings in the bill mentions that currently, private property owners are being forced by Federal policy to resort to extensive, lengthy, and expensive litigation to protect basic civil rights guaranteed by a Constitution. This has certainly been proven true by the numerous lawsuits filed in the last few years that are still pending. But the problem is rectified by amendments the bill proposes for the Endangered Species Act and the Federal Pollution Control Act that give property rightsproperty owners the option to appeal administrative decisions, and also to participate in management agreements. Another problem that has recently been brought up by the current administration is the right of Federal agents to trespass on private property to conduct agency actions. This bill requires these agents to receive written consent from the property owners before conducting such actions.

In summary, the bill clarifies as well as emphasizes the importance of the property rights guaranteed to American citizens by the U.S. Constitution. The bill solves many of the problems faced by property owners and local governments in dealing with Federal agencies who don't seem to want to recognize these constitutional rights. I wholeheartedly support the bill and thank you, Senator Hatch, for taking on this important issue.

The CHAIRMAN. Thank you. Thank you very much for your excellent analysis.

Professor Richard G. Wilkins is a professor at the J. Reuben Clark Law School at Brigham Young University, where he has been such since 1984. He has published in numerous legal journals on a variety of issues, including the takings clause of the Constitution. We're very pleased to be able to have such an outstanding expert in our midst this morning. Professor Wilkins, thanks for taking time out of what we know is a busy schedule for you to be here, appreciate you.

STATEMENT OF RICHARD G. WILKINS

Mr. WILKINS. Thank you, Senator Hatch. I am pleased to have the opportunity to testify in support of Senate bill 605. In my opinion the bill addresses and provides effective redress for one of the most troubled areas in modern constitutional law; that is, pouring some enforceable content into what otherwise might become empty words of the takings clause of the U.S. Constitution. The bill also addresses and alleviates an unfortunate jurisdictional tangle that has developed between the U.S. Court of Claims and the U.S. Dis

trict Courts. For both of these reasons, I think the bill urgently needs passage.

The need to provide effective statutory protection for regulatory abuse of private property rights is absolutely plain. The Supreme Court has attempted to annunciate and to enforce workable limits on the takings clause, but that effort in large measure has proven exceptionally difficult, if not impossible. Section 204 of Senate bill 605 in many ways simply restates current constitutional doctrine. Subsection (AX(1) and (A)(2), (A), (B), (C) and (E), for example, simply set out the current tests for takings clause annunciated by the U.S. Supreme Court in its most decision-in its most recent decisions. Therefore, these provisions of the bill are really rather unremarkable unless of course you happen to be, I think, one of the relatively small minority of constitutional scholars who are terribly unhappy with them. The provision that I find most noteworthy, however, in Senate bill 605 is subsection (2)(D) of section 204 which, as I understand it, puts remedial teeth into a constitutional principle that harks back to Justice Holmes' 1922 opinion in Pennsylvania Coal v. Mahon. The principal is this: While modern government undoubtedly has the power to regulate despite incidental effects or impacts on property value, that governmental regulation may not go, "too far," without violating the takings clause. The Supreme Court has simply been unsuccessful in effectuating that principle.

At this point in my prepared remarks I had some law professorly kinds of hypotheticals, but they would be rather sterile and not nearly as dramatic as the ones you've already heard. So I'll just skip over that right to the governing constitutional doctrine.

That doctrine is settled and it is what Justice Holmes said in 1922. You may not go, even in the course of protecting such notable goals as protecting Endangered Species and tortoises, you may not go "too far." In 1960 the Government, or the Supreme Court, perhaps more cogently explained the purpose of the clause is, "to prevent some people alone from bearing public burdens which, in all fairness and justice, should be borne by the public as a whole," the Armstrong case, which is in fact cited in the legislation. The result that's dictated by either of these legal tests, however, is hardly selfevidence. Even if you grant that the Government may not go "too far" in intruding upon private interests, what distinguishes the far from the near? And then if you say, even if we can't force private owners to bear disproportionate burden, well when is the line of disproportionate burden crossed?

The Supreme Court cases that have addressed this troublesome issue have managed to give us almost no guidance. Indeed the court has managed to protect property owners in only two rather discrete categories of cases. First, when government actually physically takes property, you are paid. Even that difficult even that rather clear area though is becoming muddy because of some of the testimony you've heard today. Physically take property that happens to be a tortoise or a wetland or some other archaeological site, for example, on the property. Property which use to be worth substantial sums of money becomes worth very little.

The second area where the Supreme Court has been able to give at least some guidance is that they have stated if the Government

deprives the owner of all economic value, then compensation is required. That is perhaps even a little comical as well, because some Supreme Court Justices have suggested that if you have the right to go back and look at your property or perhaps picnic on it, you haven't been deprived of all value. Between these two relatively clear lines there is, however, a vast area of uncertainly. It is in this area that Senate bill 605 provides necessary guidance.

The Supreme Court has simply been unable to identify when government goes "too far." One perhaps shouldn't be too hard on the court and the court's vacillation in this area. The problem has many, many facets, including such philosophical questions as what do we even mean by property rights in the first place? And then such essentially political issues as how do we balance the relative interests of individual property owners against the need of the public? There is also limits, I think, on the practical competency of courts to simply declare that a legislative goal goes so far that it is unconstitutional. Very difficult for a court to say it is somehow unconstitutional to protect a desert tortoise.

Senate bill 605 obviates all of these difficulties by providing a very clear remedial rule. Government goes "too far" when it diminishes the fair market value of the affected property by 33 percent

or more.

I think that this bill is absolutely vital to finally put some teeth into Justice Holmes' 1922 dictum. I think it is also quite appropriate that it be handled by the U.S. Congress. Congress has a duty to implement the fundamental values that are expressly stated in the Bill of Rights. Protecting fundamental values of the Constitution is not merely a job for the U.S. Supreme Court, this a job the court in fact hasn't done a very good job of protecting, and I think it is not only appropriate, but exceptionally wise for Congress to step in to fill a void.

Senate bill 605's bright-line approach to resolving when government action goes "too far" has a lot to commend it. It is straightforward and understandable. Much of the Court's current jurisprudence regarding when government goes "too far" simply gets bogged down in essentially philosophical debates about what's the most important property interest. You have some very strange opinions that say, so long as you have the right to look at your eagle feathers you haven't had them taken, even though eagle feathers that use to be worth millions of dollars are now worth nothing.

The line drawn by Senate bill 605 not only resolves these kinds of philosophical debates, I believe that it effectuates a rough and fair balance between public need and individual rights. Any government regulation, of course, will have an impact upon property values someplace. I think you could probably find an economist who would look at the most mundane in government regulation and tell you exactly how it was gonna affect someone's pocketbook. So Justice Holmes recognized this back in 1922 when he said, "government could hardly go on," if we had to compensate for every single effect. But the court has been unable to provide any coherent stopping point short of absolute and total confiscation. Indeed, I think the Court's cases could be read as saying anything short of total confiscation does not constitute going "too far." And some jus