Federal Legislation
State Legislation
Federal Legislation
Bills in the 109th Congress
In response to Oregon Measure 37, approved by the State's voters in November 2004, and the U.S. Supreme Court's June 2005 decision in Kelo v. City of New London, 545 U.S. 469 (2005), the 109th Congress exhibited renewed interest in the takings, or property rights, issue.
HR 4128/S 3873. On November 3, 2005, the U.S. House of Representatives, by a vote of 376 to 38, passed the Private Property Rights Protection Act of 2005. The bill would have severely restricted the use of eminent domain in connection with economic development projects involving the use of federal funds. On September 7, 2006, Senator Inhofe introduced the House-passed eminent domain legislation in the Senate as S. 3873.
HR 3824. On September 19, 2005, Representative Richard Pombo and others introduced the Threatened and Endangered Species Recovery Act of 2005. The House passed an amended version of the bill on September 29, 2005, by a vote of 229 to 193. The House-passed bill included a pay-or-waive provision modeled on Oregon Measure 37 that would require taxpayers to pay property owners to comply with the ESA. The Senate took no action on the bill.
HR 4772. On February 16, 2006, Congressman Steve Chabot and others introduced H.R. 4772, the Private Property Rights Implementation Act of 2005. Combining elements of the Contract with America takings bill from the 104th Congress and the procedural takings bill of the 105th ad 106th Congress, the bill would have both facilitated the protection of property rights claims and also prescribed new liability standards overriding the Supreme Court's established readings of the Takings Clause and the Due Process Clause. On September 14, 2006, the House Judiciary Committee favorably reported the bill with amendments H.R. 4772.
GELPI's Talking Points for H.R. 4772
GELPI's Detailed Analysis of H.R. 4772
Statements in Opposition to H.R. 4772
On the international trade front, Congress approved the Central America Free Trade Agreement and President Bush signed the necessary implementing legislation in 2005.
Bills in the 108th Congress
The only significant property rights legislation in the 108th Congress were investor-state litigation provisions included in free trade agreements approved by Congress. Two agreements -- with Chile and with Singapore -- were concluded during the 108th Congress and are now in effect.
Trade Legislation. In the 107th Congress, the takings issue emerged in a somewhat new and unfamiliar context – in the form of bills authorizing U.S. trade officials to negotiate trade agreements with other nations that allow foreign investors to sue the United States for money damages based on actions of federal, state, or local governments which reduce the value of their investments. These lawsuits would be heard by international arbitration panels largely made up of foreign lawyers not trained in U.S. law. The decisions of the arbitration panels would not be subject to review by any U.S. court.
The relevant legislation in the House of Representative was HR 3005, the Bipartisan Trade Promotion Authority Act, which passed in December 2001, by a vote of 215 to 214. The Senate bill, H.R. 3009, the Andean Trade Promotion and Drug Eradication Act, passed by a vote of 66 to 30. Senate and House conferees developed a consensus bill that passed before the end of the 107th Congress.
State and local officials in particular raised various concerns about the "investor protection" provisions in the bills: they represent a variation on the kind of "takings compensation" bills which had been rejected by Congress and most States in the past; they would unfairly grant foreign investors greater legal rights than U.S. citizens possess in their own country; they would undermine the sovereign authority of American government at all levels; they would subject the decisions of U.S. political and legal institutions (including court rulings) to review by ad hoc international panels; and they would impose an enormous new fiscal burden on the U.S. taxpayer. Neither the Senate nor the House bill directly responded to these concerns. Ostensibly in an effort to address some of these concerns, an amendment was added to the Senate bill directing U.S. trade negotiators to attempt to ensure that "foreign investors in the United States are not accorded greater legal rights than United States investors in the United States." While supportive of the sentiment expressed by this amendment, State and local officials have objected that this amendment did not resolve their concerns because it was too general and unenforceable. Senator John Kerry of Massachusetts offered an amendment during the Senate debate designed to provide greater protection against foreign investor lawsuits, but the amendment was rejected by a vote of 55 to 41. This trade legislation was finally approved near the end of the 106th Congress.
H.R. 2372. On March 16, 2000, the U.S. House of Representatives, by vote of 226 to 182, passed H.R. 2372, the so-called Private Property Rights Implementation Act of 1999. The proposed legislation, popularly known as the Homebuilders Bill, would have permitted developers to sue cities and towns early and often in federal court by attempting to redefine when a federal constitutional takings claim is ripe for adjudication and eliminating the so-called Williamson County state-court exhaustion requirement.
While an undeniable victory for takings advocates, the vote in the House reinforced the consistent pattern of declining support for takings legislation in the House over the previous several years. In the 104th Congress, in March 1995, the House passed the Contract with America takings compensation bill by a vote of 277 to 148 (a margin of victory of 129). In the 105th Congress, in October 1997, the House passed H.R. 1534, which was nearly identical to H.R. 2372, by a vote of 248 to 178 (a margin of 70). Later in the 105th Congress, in March 1998, the House passed H.R. 992, the so-called Tucker Act Shuffle Relief Act, by a vote of 230 to 180 (a margin of 50). In the 106th Congress, the House has passed H.R. 2372 by a vote of 226 to 182 (a margin of 44).
The decline in support for takings legislation over time could not be clearer. Apparently, the more members of Congress learned about takings legislation the less they liked it.
Significantly, the opposition to takings legislation grew as takings advocates attempted to moderate the scope of their proposals. Unlike the more "extreme" Contract with America bill, HR 2372 did not seek to redefine the meaning of a taking but instead addressed "only" the procedures for prosecuting takings claims. H.R. 2372 died when the Senate failed to take up the bill before the close of the 106th Congress.
Other takings bills introduced in the 106th Congress, none of which were enacted; included:
H.R. 1142, introduced by House Resources Committee Chairman Don Young, would have added broad new takings language to the Endangered Species Act. The key provision of the bill stated: "An agency that takes action under [the ESA] or in furtherance of [the ESA] that results in a Federal use of non-Federal property or any portion of non-Federal property without the written consent of the owner of the property shall compensate the owner for the fair market value of the Federal use of the property or portion." The bill goes on to define a federal use to include a wide variety of potential regulatory effects under the ESA.
H.R. 350, The Mandates Information Act of 1999, would have amended the Unfunded Mandates Reform Act of 1995 by extending this legislation to so-called "private sector" mandates. Specifically, the bill would have directed the Congressional Budget Office to provide members of Congress with additional information when the Office determined that a measure contains a private-sector mandate with costs exceeding $100 million. The bill also would have made legislation with costs exceeding this threshold subject to a point of order, which would be subject to debate for 20 minutes, after which the members could agree to proceed with consideration of the bill by simple majority.
This legislation was characterized as erecting a road bump rather than a stop sign, because it would have created no substantive impediment to adoption of legislation supported by a majority. Nevertheless, like more traditional takings legislation, this bill would have obviously tilted the playing field by focusing legislators' attention specifically on the costs - rather than the benefits - associated with proposed legislation.
A similar version of this legislation passed the House in the previous Congress, but failed in the Senate.
S. 25, the Conservation and Reinvestment Act of 1999, would have achieved a number of objectives, including transferring a larger share of Outer Continental Shelf revenues to coastal states impacted by oil and gas development, providing a larger stream of funding to the Land and Water Conservation Fund for use by the States as well as federal agencies, and providing new support for State non-game conservation programs. The provisions in Title II of the bill addressing the federal side of the Land and Water Conservation Fund contained the following proviso: "That no moneys available under this paragraph for Federal purposes shall be used for condemnation of any interest of property." This provision would have allowed a single, strategically located landowner to block a federal land conservation program, notwithstanding the federal government's willingness to pay fair market value for the land. More frequently, this provision would have simply allowed individual landowners to demand financial windfalls at taxpayers expense as a condition of selling their land.
S.246, introduced by Senator Hagel (R-NE) and co-sponsored by Senator Hutchinson (R-AR), would have established complicated standards and procedures for federal agency preparation of taking impact analyses. It was identical to S.246, which Senator Hagel introduced in the previous Congress but did not actively pursue.
H.R. 294, introduced by Representative Sweeney (R-N.Y.), was identical to a bill introduced in the several previous Congresses by former Representative Solomon. It would have essentially codified the Reagan Executive Order requiring federal agencies to prepare takings impact analyses.
Statements in Opposition:
From State and Local Government GroupsBills in the 105th Congress
In the 105th Congress, several different pieces of takings legislation were introduced. Only a few of these bills were seriously considered, as discussed below:
H.R. 1534. On October 22, 1997, by a vote of 248 to 178, the U.S. House of Representatives passed H.R. 1534, Representative Gallegly's "Private Property Rights Implementation Act of 1997." The proposed legislation would have altered established "ripeness" doctrine, allowing taking claimants suing local governments to by-pass state courts and proceed directly to federal court. It also would have allowed litigants to by-pass local administrative procedures and litigate claims which are not yet "final" under existing standards, and would have sharply limited federal courts' existing authority to "abstain" from hearing local land use disputes more appropriately resolved in the state courts.
GELPI Analysis of H.R. 1534
The National Association of Homebuilders was the primary advocate of the Gallegly bill. The legislation was opposed by the Clinton/Gore Administration, environmental and public health organizations, the Judicial Conference of the United States, and numerous organizations representing state and local governments, including the National Governors Association, 40 State Attorneys General, the National Conference of State Legislatures, the National League of Cities, the Conference of Mayors, the International Municipal Lawyers Association, and the National Conference of State Legislatures.
In July 1998, Senator Hatch introduced a replacement bill (H.R. 2271), which included, with a few minor changes, the language of H.R. 1534, as reported by the Senate Judiciary Committee. On July 13, 1998, after a debate on the Senate floor, a cloture vote failed by a vote of 52 to 42 effectively killing this legislative effort in this session of Congress.
H.R. 992. On March 12, 1998, the U.S. House of Representatives, by a vote of 230-180, passed Rep. Lamar Smith's (R-TX) bill, the Tucker Act Shuffle Relief Act. Before passing the bill, the House narrowly rejected, by a tie vote of 206 to 206, an amendment offered by Rep. Mel Watt (D-NC), which would have granted the District Court new jurisdiction to hear takings claims and allowed the District Court to exercise comprehensive jurisdiction over takings, Administrative Procedure Act, and other challenges to regulations affecting property. Under this proposal, the existing Court of Claims jurisdiction would have been left intact but not expanded, and appeals from decisions by the District Court would have gone to the regional Courts of Appeal.
Prior to the vote, the House adopted by voice vote an amendment offered by the bill's chief sponsor, Lamar Smith, designed to make clear that the bill was not intended to override preclusive review provisions granting jurisdiction over particular agency actions to specific federal Courts of Appeal or District Courts.
The Statement of Administrative Policy on the bill indicated that the Attorney General, the Administrator of the Environmental Protection Agency, the Secretary of the Interior, and the Chair of the Council on Environmental Quality would have recommended a veto of the bill as reported by the House Judiciary Committee.
H.R. 992 would have expanded the jurisdiction of the district courts (some) and the Court of Federal Claims (a lot) by granting each court original jurisdiction to hear "all claims" arising from federal agency action alleged (1) to constitute a taking under the Fifth Amendment and (2) "not to constitute such a taking only because the action was not in accordance with lawful authority." Basically, the bill would have granted the Court of Federal Claims, an Article I court which now has jurisdiction over takings claims, comprehensive jurisdiction over any and all property-related claims, including taking claims, tort claims, and APA claims. At the same time, the district courts would have obtained new, expanded jurisdiction over takings claims. All appeals in actions filed under this bill, whether commenced in the district courts or the Court of Federal Claims, would have gone to the Court of Appeals for the Federal Circuit, dramatically expanding the workload of that court and shifting important responsibilities from other circuits to the federal circuit.
On the Senate side, on February 26, 1998, the Senate Judiciary Committee voted 10-8 to report a substitute version of the Gallegly bill (H.R. 1534) to the full Senate. The legislation as reported included the provisions of the Gallegly bill as passed by the House of Representatives in 1997, and the provisions of a Senate bill (S. 1256) which would expand the jurisdiction of the Court of Federal Claims and the Court of Appeals for the Federal Circuit. These latter provisions are similar to, but not indentical to, the provisions of the Smith bill (H.R. 992) passed by the House.
H.R. 2438. On October 30, 1997, a subcommittee of the House Resources Committee held hearings on this bill to amend the federal Rails to Trails program to address takings concerns. There was no further action on this bill.
In the 104th Congress, the Contract with America, championed by then-House majority leader Newt Gingrich, included a sweeping takings "compensation" measure which passed the House of Representatives but died in the Senate.
H.R. 925:The Private Property Rights Protection Act of 1995, introduced by Representative Canady, passed in the House of Representatives by a vote of 227 to 141. The bill would have required taxpayers to pay to enforce environmental and natural resource laws.
S.605, introduced by Senator Robert Dole, was the principal Senate version of the Contract with America takings bill. While the bill was favorably reported by the Senate Judiciary Committee, the Senate never voted on the bill.
State Legislation
Oregon Measure 37