Let me just read it to you here. It says, "Jurisdiction and Judicial Review. A property owner may file a civil action under this act to challenge the validity of any agency action that adversely affects the owner's interest private property in either the U.S. District Court or the U.S. Court of Federal Claims. This section constitutes express waiver of the sovereign immunity of the United States. Notwithstanding any other provision of law and notwithstanding the issues involved, the relief sought, or the amount in controversy, each court shall have concurrent jurisdiction over both claims of monetary relief and claims seeking invalidation of any act of Congress or any regulation of an agency as defined under this act affecting private property rights. The plaintiff shall have the election of the court in which to file a claim for relief."

Is that unusual?

Ms. ROSE. Well, Senator, this is an area of Federal jurisdiction that I don't know entirely well, but it does seem to me that one would think about some of these considerations. Courts do invalidate statutes of Congress from time to time. The difference here is that the constitutional provision that is under consideration is the Takings Clause, and that clause provides for just compensation if there has been a taking.

I think there are many, many issues about what constitutes a taking, and I think that those are best dealt with by courts. Nevertheless, once having found a taking, the remedy is just compensation, rather than invalidation of a statute. In part, the reason for that is that a statute might be invalid with respect to a particular property, but you wouldn't want to knock out the whole regulatory scheme because there has been some overreaching on that particular property.

Senator BIDEN. So isn't this an unusual or additional or an unintended grant of authority-not unintended-to the courts to allow them under takings jurisprudence to invalidate a statute?

Ms. ROSE. It seems unusual to me. It seems that this is a very heavy cannon to apply when the instances of takings are so individual and so much questions of site-by-site specific applications of

statutes.

Senator BIDEN. I don't have any further questions, Mr. Chairman. I thank the witnesses, and with your permission, I would like to be able to submit some questions in writing.

I think, Mr. Chaconas, you made an incredibly articulate statement for the proposition which you are positing, which is that this is a two-way street.

Mr. CHACONAS. Thank you, sir.

[The questions of Senator Biden are located in the appendix.] The CHAIRMAN. Thank you, Senator Biden.

We wanted to thank all witnesses for being here today. We think it has been a good hearing and we appreciate your being here. We have a statement from Senator Abraham which we will include in the record.

[The prepared statement of Senator Abraham follows:]

PREPARED STATEMENT OF SENATOR SPENCER ABRAHAM

Mr. Chairman, I want to express my strong support of the "Omnibus Property Rights Act" introduced by my distinguished colleague, the Senator from Kansas. I

believe this bill will address a significant problem affecting the economic and personal freedom of too many Americans.

Unfortunately, under the Supreme Court's current, restrictive interpretation of the Takings Clause of the Fifth Amendment, a property owner whose land value has been diminished by a use restriction usually cannot receive compensation unless the restriction has rendered his property valueless. As a result, virtually no substantive or even procedural obstacles hinder unelected bureaucrats from imposing economically devastating use restrictions on private land.

The Omnibus Property Rights Act solves this problem by providing that a landowner shall receive full compensation whenever federal government action directly reduces the value of his land by one-third or more. The "directly" qualifier precludes compensation for "consequential damages," such as those suffered by the owner of a gas station on a rural two-lane highway when a parallel superhighway is built nearby.

The Act also requires agencies to conduct a "takings impact analysis" before imposing a regulation "which is likely to result in a taking of private property," thus forcing regulators to consider the consequences of the regulations they propose. In this way the bill will protect Americans from unnecessary regulations that inhibit their full use of their own, private property, and see to it that necessary regulations that take away significant use and value from this land are accompanied by proper compensation.

Mr. Chairman, I feel it necessary in expressing my support for this bill to confront certain myths currently being bandied about concerning our attempt to see that regulatory takings are accompanied by proper compensation.

The first myth is that the Act would create a new "entitlement." This myth should sway no one because obviously a property owner who is compensated for losses caused by the federal government is different in kind from the person who simply receives a government handout.

The second myth is that the Act would increase the deficit. Again, there is no basis for this view. CBO has scored the Act as revenue neutral, largely because any compensation awarded under the Act must be paid out of the operating budget of the agency that imposed the regulation and not out of any fund set up specifically to cover judgment awards.

The third myth is that the Act will require compensation for polluters and others who engage in noxious uses of their property. I am happy to say that this myth also is without foundation because the Act expressly provides that no compensation is required if the restricted use is a nuisance under the common law of the State in which the property is located. Since such use rights do not inhere in the owner's title to begin with (as they are not recognized at common law) restrictions on such uses do not impinge on the property owner's rights.

One final myth I would like to address is the claim that the Act is "anti-environment." Mr. Chairman, the Act does not ban environmental regulation. Indeed the issue raised by property rights legislation is not whether a clean environment, preservation of pristine wilderness and so on are worthy goals. Instead the issue is whether the burdens associated with those societal benefits shall be borne by a few unlucky landowners or by society, through its government. Simple justice demands that society pay for societal benefits.

Mr. Chairman, none of these myths match reality because the "Omnibus Property Rights Act" aims only to protect the well-grounded rights of property owners. If we are serious about protecting the liberties of the American people against governmental intrusion we must enact laws that effectively protect them from that intrusion. This bill will do exactly that and in a measured, reasonable manner.

The CHAIRMAN. With that, we will recess until further notice. [Whereupon, at 1:55 p.m., the committee was adjourned.]

THE OMNIBUS PROPERTY RIGHTS ACT
OF 1995: HOW DOES IT HELP UTAHNS?

The committee met, pursuant to notice, at 10:15 a.m., in room 303, Utah State Capitol, Salt Lake City, UT, Hon. Orrin G. Hatch (chairman of the committee), presiding.

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S.
SENATOR FROM THE STATE OF UTAH

The CHAIRMAN. Today we will consider private property, specifically the unjust seizures of private property. Make no mistake. This hearing is not a hearing on the importance of safeguarding the environment, which I-which I do support. Nor is it about legitimately protecting wilderness areas, which I also support. Nor is this hearing about the sometimes necessary condemnation of certain private properties to benefit the common good in the building of necessary highways and schools, which are routinely compensated. What this hearing involves is the uncompensated taking of private property that has, in some cases, been in families for generations, takings by Federal regulations.

Tomorrow is the Fourth of July. It's America's Independence Day. Our forebearers fought a revolution to protect certain liberties that they felt were founded not on the ruler's largesse, but on a higher law. In order to ensure that those basic rights would never be infringed, the Founders enshrined them in the Bill of Rights. One of those rights was written into the fifth amendment which says, "*** nor shall private property be taken for public use without just compensation." The fight to maintain that right goes on in our society.

A well-intentioned desire on the part of Federal regulators to protect a wide variety of interests has led to a dramatic increase in the amount of private property that is effectively taken by devaluation. To be clear, not every Federal regulation amounts to a taking. Furthermore, some regulations which infringe on property rights are worthwhile. However, when a regulation does have the effect of taking private property, the owner of that property should receive just compensation. Anything less is a violation of a basic liberty heralded in the Constitution and specifically written in the Constitution. Frankly, I find it hard to believe that some people claim that compensating Americans for a government taking is such a novel concept. After all, no one disputes the laws that pro

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.