Defense of Property Rights Act
This bill prohibits federal or state agencies from taking private property in whole or in part (including by physical invasion, regulation, exaction, or condition) except for public purpose and with just compensation to the property owner.
A property owner shall receive just compensation if the property has been physically invaded or taken without the owner's consent in an action that:
The bill allows the U.S. Court of Federal Claims to: (1) render judgment upon a claim against an agency for monetary relief, (2) invalidate federal laws or regulations that violate Fifth Amendment property rights, (3) grant injunctive and declaratory relief, and (4) have concurrent jurisdiction with other courts.
The bill also establishes a six-year statute of limitations for actions to be brought after a taking and allows takings disputes to be resolved through settlement or arbitration.
[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 7178 Introduced in House (IH)]
<DOC>
115th CONGRESS
2d Session
H. R. 7178
To establish a uniform and more efficient Federal process for
protecting property owners' rights guaranteed by the fifth amendment.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
November 27, 2018
Mr. Reed (for himself, Mr. Gosar, Mr. Brat, and Mr. King of Iowa)
introduced the following bill; which was referred to the Committee on
the Judiciary
_______________________________________________________________________
A BILL
To establish a uniform and more efficient Federal process for
protecting property owners' rights guaranteed by the fifth amendment.
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 ``Defense of Property Rights Act''.
SEC. 2. FINDINGS.
The Congress finds that--
(1) the private ownership of property is essential to a
free society and is an integral part of the American tradition
of liberty and limited government;
(2) the framers of the United States Constitution, in order
to protect private property and liberty, devised a framework of
Government designed to diffuse power and limit Government;
(3) to further ensure the protection of private property,
the fifth amendment to the United States Constitution was
ratified to prevent the taking of private property by the
Federal Government, except for public use and with just
compensation;
(4) the purpose of the takings clause of the fifth
amendment of the United States Constitution, as the Supreme
Court stated in Armstrong v. United States, 364 U.S. 40, 49
(1960), is ``to bar Government from forcing some people alone
to bear public burdens, which in all fairness and justice,
should be borne by the public as a whole'';
(5) the agencies, in their efforts to ameliorate public
harms and environmental abuse, have singled out property
holders to shoulder the cost that should be borne by the
public, in violation of the just compensation requirement of
the takings clause of the fifth amendment of the United States
Constitution;
(6) there is a need to both restrain the agencies in their
overzealous regulation of the private sector and to protect
private property, which is a fundamental right of the American
people;
(7) the incremental, fact-specific approach that courts now
are required to employ in the absence of adequate statutory
language to vindicate property rights under the fifth amendment
of the United States Constitution has been ineffective and
costly and there is a need for Congress to clarify the law and
provide an effective remedy;
(8) certain provisions of sections 1346 and 1402 and
chapter 91 of title 28, United States Code (commonly known as
the Tucker Act), that delineates the jurisdiction of courts
hearing property rights claims, complicates the ability of a
property owner to vindicate a property owner's right to just
compensation for a governmental action that has caused a
physical or regulatory taking;
(9) current law--
(A) forces a property owner to elect between
equitable relief in the district court and monetary
relief (the value of the property taken) in the United
States Court of Federal Claims;
(B) is used to urge dismissal in the district court
on the ground that the plaintiff should seek just
compensation in the Court of Federal Claims; and
(C) is used to urge dismissal in the Court of
Federal Claims on the ground that the plaintiff should
seek equitable relief in district court;
(10) property owners cannot fully vindicate property rights
in one court;
(11) property owners should be able to fully recover for a
taking of their private property in one court;
(12) certain provisions of sections 1346 and 1402 and
chapter 91 of title 28, United States Code (commonly known as
the Tucker Act) should be amended, giving both the district
courts of the United States and the Court of Federal Claims
jurisdiction to hear all claims relating to property rights;
and
(13) section 1500 of title 28, United States Code, which
denies the Court of Federal Claims jurisdiction to entertain a
suit which is pending in another court and made by the same
plaintiff, should be repealed.
SEC. 3. PURPOSE.
The purpose of this Act is to--
(1) encourage, support, and promote the private ownership
of property by ensuring the constitutional and legal protection
of private property by the United States Government;
(2) establish a clear, uniform, and efficient judicial
process whereby aggrieved property owners can obtain
vindication of property rights guaranteed by the fifth
amendment to the United States Constitution and this Act;
(3) amend certain provisions of the Tucker Act, including
the repeal of section 1500 of title 28, United States Code;
(4) rectify the constitutional imbalance between the
Federal Government and the States; and
(5) require the Federal Government and States to compensate
property owners for the deprivation of property rights.
SEC. 4. DEFINITIONS.
For purposes of this Act the term--
(1) ``agency'' means a department, agency, independent
agency, or instrumentality of the United States or an
individual State, including any military department, Government
corporation, Government-controlled corporation, or other
establishment in the executive branch of the United States
Government or an individual State;
(2) ``agency action'' means any action or decision taken,
permanently or temporarily, by an agency that--
(A) takes a property right; or
(B) unreasonably impedes the use of property or the
exercise of property interests or significantly
interferes with investment-backed expectations;
(3) ``just compensation''--
(A) means compensation equal to the full extent of
a property owner's loss, including the fair market
value of the private property taken and business losses
arising from a taking, whether the taking is by
physical occupation or through regulation, exaction, or
other means; and
(B) shall include compounded interest calculated
from the date of the taking until the date the agency
tenders payment;
(4) ``owner'' means the owner or possessor of property or
rights in property at the time the taking occurs, including
when--
(A) the statute, regulation, rule, order,
guideline, policy, or action is passed or promulgated;
or
(B) the permit, license, authorization, or
governmental permission is denied or suspended;
(5) ``private property'' or ``property'' means all property
protected under the fifth amendment to the Constitution of the
United States, any applicable Federal or State law, or this
Act, and includes--
(A) real property, whether vested or unvested,
including--
(i) estates in fee, life estates, estates
for years, or otherwise;
(ii) inchoate interests in real property
such as remainders and future interests;
(iii) personalty that is affixed to or
appurtenant to real property;
(iv) easements;
(v) leaseholds;
(vi) recorded liens; and
(vii) contracts or other security interests
in, or related to, real property;
(B) the right to use water or the right to receive
water, including any recorded lines on such water
right;
(C) rents, issues, and profits of land, including
minerals, timber, fodder, crops, oil and gas, coal, or
geothermal energy;
(D) property rights provided by, or memorialized
in, a contract, except that such rights shall not be
construed under this title to prevent the United States
from prohibiting the formation of contracts deemed to
harm the public welfare or to prevent the execution of
contracts for--
(i) national security reasons; or
(ii) exigencies that present immediate or
reasonably foreseeable threats or injuries to
life or property;
(E) any interest defined as property under State
law; or
(F) any interest understood to be property based on
custom, usage, common law, or mutually reinforcing
understandings sufficiently well-grounded in law to
back a claim of interest; and
(6) ``taking of private property''--
(A) means any action whereby private property is
directly taken in part or in whole as to require
compensation under the fifth amendment to the United
States Constitution or under this Act, including by
physical invasion, regulation, exaction, condition, or
other means; and
(B) shall not include--
(i) a condemnation action filed by the
United States in an applicable court; or
(ii) an action filed by the United States
relating to criminal forfeiture.
SEC. 5. COMPENSATION FOR TAKEN PROPERTY.
(a) In General.--No agency shall take private property in part or
in whole except for public purpose and with just compensation to the
property owner. A property owner shall receive just compensation if--
(1) as a consequence of a decision of any agency private
property (in part or in whole) has been physically invaded or
taken without the consent of the owner; and
(2)(A) such action does not substantially advance the
stated governmental interest to be achieved by the legislation
or regulation on which the action is based;
(B) such action exacts the owner's constitutional or
otherwise lawful right to use the property or a portion of such
property as a condition for the granting of a permit, license,
variance, or any other agency action without a rough
proportionality between the stated need for the required
dedication and the impact of the proposed use of the property;
(C) such action results in the property owner being
deprived, either temporarily or permanently, of all or
substantially all economically beneficial or productive use of
the property or that part of the property affected by the
action without a showing that such deprivation inheres in the
title itself;
(D) such action diminishes the fair market value of the
property which is the subject of the action by the lesser of--
(i) 20 percent or more with respect to the value
immediately prior to the governmental action; or
(ii) $20,000, or more with respect to the value
immediately prior to the governmental action; or
(E) under any other circumstance where a taking has
occurred within the meaning of the fifth amendment of the
United States Constitution.
(b) Burden of Proof.--(1) The agency shall bear the burden of proof
in any action described under--
(A) subsection (a)(2)(A), with regard to showing the nexus
between the stated governmental purpose of the governmental
interest and the impact on the proposed use of private
property;
(B) subsection (a)(2)(B), with regard to showing the
proportionality between the exaction and the impact of the
proposed use of the property; and
(C) subsection (a)(2)(C), with regard to showing that such
deprivation of value inheres in the title to the property.
(2) The property owner shall have the burden of proof in any action
described under subsection (a)(2)(D), with regard to establishing the
diminution of value of property.
SEC. 6. JURISDICTION AND JUDICIAL REVIEW.
(a) In General.--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 in private property in either the United
States District Court or the United States 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 for monetary relief and claims seeking invalidation of any Act
of Congress or any agency action 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.
(b) Standing.--Persons adversely affected by an agency action taken
under this Act shall have standing to challenge and seek judicial
review of that action.
(c) Amendments to Title 28, United States Code.--(1) Section
1491(a) of title 28, United States Code, is amended--
(A) in paragraph (1) by amending the first sentence to read
as follows: ``The United States Court of Federal Claims shall
have jurisdiction to render judgment upon any claim against an
agency for monetary relief founded either upon the Constitution
or any Act of Congress or any regulation of an executive
department, or upon any express or implied contract with an
agency, in cases not sounding in tort, or for invalidation of
any Act of Congress or any regulation of an executive
department that adversely affects private property rights in
violation of the fifth amendment of the United States
Constitution'';
(B) in paragraph (2) by inserting before the first sentence
the following: ``In any case within its jurisdiction, the Court
of Federal Claims shall have the power to grant injunctive and
declaratory relief when appropriate.''; and
(C) by adding at the end thereof the following new
paragraphs:
``(4) In cases otherwise within its jurisdiction, the Court
of Federal Claims shall also have ancillary jurisdiction,
concurrent with the courts designated in section 1346(b) of
this title, to render judgment upon any related tort claim
authorized under section 2674 of this title.
``(5) In proceedings within the jurisdiction of the Court
of Federal Claims which constitute judicial review of agency
action (rather than de novo proceedings), the provisions of
section 706 of title 5 shall apply.''.
(2)(A) Section 1500 of title 28, United States Code, is repealed.
(B) The table of sections for chapter 91 of title 28, United States
Code, is amended by striking out the item relating to section 1500.
SEC. 7. STATUTE OF LIMITATIONS.
The statute of limitations for actions brought under this title
shall be 6 years from the date of the taking of property.
SEC. 8. ATTORNEYS' FEES AND COSTS.
The court, in issuing any final order in any action brought under
this Act, shall award costs of litigation (including reasonable
attorney and expert witness fees) to any prevailing plaintiff.
SEC. 9. ALTERNATIVE DISPUTE RESOLUTION.
(a) In General.--Either party to a dispute over a taking of
property as defined under this Act or litigation commenced under this
Act may elect to resolve the dispute through settlement or arbitration.
In the administration of this section--
(1) such alternative dispute resolution may only be
effectuated by the consent of all parties;
(2) arbitration procedures shall be in accordance with the
alternative dispute resolution procedures established by the
American Arbitration Association; and
(3) in no event shall arbitration be a condition precedent
or an administrative procedure to be exhausted before the
filing of a civil action under this Act.
(b) Review of Arbitration.--Appeal from arbitration decisions shall
be to the United States District Court or the United States Court of
Federal Claims in the manner prescribed by law for the claim under this
Act.
SEC. 10. RULES OF CONSTRUCTION.
Nothing in this Act shall be construed to interfere with the
authority of any State to create additional property rights.
SEC. 11. SEVERABILITY.
If any provision of this Act, an amendment made by this Act, or the
application of such provision or amendment to any person or
circumstance is held to be unconstitutional, the remainder of this Act,
the amendments made by this Act, and the application of the provisions
of such to any person or circumstance shall not be affected thereby.
SEC. 12. EFFECTIVE DATE.
The provisions of this Act shall apply to actions commenced on or
after the date of the enactment of this Act.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on the Judiciary.
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