[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4128 Referred in Senate (RFS)]
109th CONGRESS
1st Session
H. R. 4128
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 4, 2005
Received; read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
AN ACT
To protect private property rights.
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 ``Private Property Rights Protection
Act of 2005''.
SEC. 2. PROHIBITION ON EMINENT DOMAIN ABUSE BY STATES.
(a) In General.--No State or political subdivision of a State shall
exercise its power of eminent domain, or allow the exercise of such
power by any person or entity to which such power has been delegated,
over property to be used for economic development or over property that
is subsequently used for economic development, if that State or
political subdivision receives Federal economic development funds
during any fiscal year in which it does so.
(b) Ineligibility for Federal Funds.--A violation of subsection (a)
by a State or political subdivision shall render such State or
political subdivision ineligible for any Federal economic development
funds for a period of 2 fiscal years following a final judgment on the
merits by a court of competent jurisdiction that such subsection has
been violated, and any Federal agency charged with distributing those
funds shall withhold them for such 2-year period, and any such funds
distributed to such State or political subdivision shall be returned or
reimbursed by such State or political subdivision to the appropriate
Federal agency or authority of the Federal Government, or component
thereof.
(c) Opportunity to Cure Violation.--A State or political
subdivision shall not be ineligible for any Federal economic
development funds under subsection (b) if such State or political
subdivision returns all real property the taking of which was found by
a court of competent jurisdiction to have constituted a violation of
subsection (a) and replaces any other property destroyed and repairs
any other property damaged as a result of such violation.
SEC. 3. PROHIBITION ON EMINENT DOMAIN ABUSE BY THE FEDERAL GOVERNMENT.
The Federal Government or any authority of the Federal Government
shall not exercise its power of eminent domain to be used for economic
development.
SEC. 4. PRIVATE RIGHT OF ACTION.
(a) Cause of Action.--Any owner of private property who suffers
injury as a result of a violation of any provision of this Act may
bring an action to enforce any provision of this Act in the appropriate
Federal or State court, and a State shall not be immune under the
eleventh amendment to the Constitution of the United States from any
such action in a Federal or State court of competent jurisdiction. In
such action, the defendant has the burden to show by clear and
convincing evidence that the taking is not for economic development.
Any such property owner may also seek any appropriate relief through a
preliminary injunction or a temporary restraining order.
(b) Limitation on Bringing Action.--An action brought under this
Act may be brought if the property is used for economic development
following the conclusion of any condemnation proceedings condemning the
private property of such property owner, but shall not be brought later
than seven years following the conclusion of any such proceedings and
the subsequent use of such condemned property for economic development.
(c) Attorneys' Fee and Other Costs.--In any action or proceeding
under this Act, the court shall allow a prevailing plaintiff a
reasonable attorneys' fee as part of the costs, and include expert fees
as part of the attorneys' fee.
SEC. 5. NOTIFICATION BY ATTORNEY GENERAL.
(a) Notification to States and Political Subdivisions.--
(1) Not later than 30 days after the enactment of this Act,
the Attorney General shall provide to the chief executive
officer of each State the text of this Act and a description of
the rights of property owners under this Act.
(2) Not later than 120 days after the enactment of this
Act, the Attorney General shall compile a list of the Federal
laws under which Federal economic development funds are
distributed. The Attorney General shall compile annual
revisions of such list as necessary. Such list and any
successive revisions of such list shall be communicated by the
Attorney General to the chief executive officer of each State
and also made available on the Internet website maintained by
the United States Department of Justice for use by the public
and by the authorities in each State and political subdivisions
of each State empowered to take private property and convert it
to public use subject to just compensation for the taking.
(b) Notification to Property Owners.--Not later than 30 days after
the enactment of this Act, the Attorney General shall publish in the
Federal Register and make available on the Internet website maintained
by the United States Department of Justice a notice containing the text
of this Act and a description of the rights of property owners under
this Act.
SEC. 6. REPORT.
Not later than 1 year after the date of enactment of this Act, and
every subsequent year thereafter, the Attorney General shall transmit a
report identifying States or political subdivisions that have used
eminent domain in violation of this Act to the Chairman and Ranking
Member of the Committee on the Judiciary of the House of
Representatives and to the Chairman and Ranking Member of the Committee
on the Judiciary of the Senate. The report shall--
(1) identify all private rights of action brought as a
result of a State's or political subdivision's violation of
this Act;
(2) identify all States or political subdivisions that have
lost Federal economic development funds as a result of a
violation of this Act, as well as describe the type and amount
of Federal economic development funds lost in each State or
political subdivision and the Agency that is responsible for
withholding such funds;
(3) discuss all instances in which a State or political
subdivision has cured a violation as described in section 2(c)
of this Act.
SEC. 7. SENSE OF CONGRESS REGARDING RURAL AMERICA.
(a) Findings.--The Congress finds the following:
(1) The founders realized the fundamental importance of
property rights when they codified the Takings Clause of the
Fifth Amendment to the Constitution, which requires that
private property shall not be taken ``for public use, without
just compensation''.
(2) Rural lands are unique in that they are not
traditionally considered high tax revenue-generating properties
for State and local governments. In addition, farmland and
forest land owners need to have long-term certainty regarding
their property rights in order to make the investment decisions
to commit land to these uses.
(3) Ownership rights in rural land are fundamental building
blocks for our Nation's agriculture industry, which continues
to be one of the most important economic sectors of our
economy.
(4) In the wake of the Supreme Court's decision in Kelo v.
City of New London, abuse of eminent domain is a threat to the
property rights of all private property owners, including rural
land owners.
(b) Sense of Congress.--It is the sense of Congress that the use of
eminent domain for the purpose of economic development is a threat to
agricultural and other property in rural America and that the Congress
should protect the property rights of Americans, including those who
reside in rural areas. Property rights are central to liberty in this
country and to our economy. The use of eminent domain to take farmland
and other rural property for economic development threatens liberty,
rural economies, and the economy of the United States. The taking of
farmland and rural property will have a direct impact on existing
irrigation and reclamation projects. Furthermore, the use of eminent
domain to take rural private property for private commercial uses will
force increasing numbers of activities from private property onto this
Nation's public lands, including its National forests, National parks
and wildlife refuges. This increase can overburden the infrastructure
of these lands, reducing the enjoyment of such lands for all citizens.
Americans should not have to fear the government's taking their homes,
farms, or businesses to give to other persons. Governments should not
abuse the power of eminent domain to force rural property owners from
their land in order to develop rural land into industrial and
commercial property. Congress has a duty to protect the property rights
of rural Americans in the face of eminent domain abuse.
SEC. 8. DEFINITIONS.
In this Act the following definitions apply:
(1) Economic development.--The term ``economic
development'' means taking private property, without the
consent of the owner, and conveying or leasing such property
from one private person or entity to another private person or
entity for commercial enterprise carried on for profit, or to
increase tax revenue, tax base, employment, or general economic
health, except that such term shall not include--
(A) conveying private property--
(i) to public ownership, such as for a
road, hospital, airport, or military base;
(ii) to an entity, such as a common
carrier, that makes the property available to
the general public as of right, such as a
railroad or public facility;
(iii) for use as a road or other right of
way or means, open to the public for
transportation, whether free or by toll;
(iv) for use as an aqueduct, flood control
facility, pipeline, or similar use;
(B) removing harmful uses of land provided such
uses constitute an immediate threat to public health
and safety;
(C) leasing property to a private person or entity
that occupies an incidental part of public property or
a public facility, such as a retail establishment on
the ground floor of a public building;
(D) acquiring abandoned property;
(E) clearing defective chains of title;
(F) taking private property for use by a public
utility; and
(G) redeveloping of a brownfield site as defined in
the Small Business Liability Relief and Brownfields
Revitalization Act (42 U.S.C. 9601(39)).
(2) Federal economic development funds.--The term ``Federal
economic development funds'' means any Federal funds
distributed to or through States or political subdivisions of
States under Federal laws designed to improve or increase the
size of the economies of States or political subdivisions of
States.
(3) State.--The term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, or any other territory or possession of the United
States.
SEC. 9. SEVERABILITY AND EFFECTIVE DATE.
(a) Severability.--The provisions of this Act are severable. If any
provision of this Act, or any application thereof, is found
unconstitutional, that finding shall not affect any provision or
application of the Act not so adjudicated.
(b) Effective Date.--This Act shall take effect upon the first day
of the first fiscal year that begins after the date of the enactment of
this Act, but shall not apply to any project for which condemnation
proceedings have been initiated prior to the date of enactment.
SEC. 10. SENSE OF CONGRESS.
It is the policy of the United States to encourage, support, and
promote the private ownership of property and to ensure that the
constitutional and other legal rights of private property owners are
protected by the Federal Government.
SEC. 11. BROAD CONSTRUCTION.
This Act shall be construed in favor of a broad protection of
private property rights, to the maximum extent permitted by the terms
of this Act and the Constitution.
SEC. 12. LIMITATION ON STATUTORY CONSTRUCTION.
Nothing in this Act may be construed to supersede, limit, or
otherwise affect any provision of the Uniform Relocation Assistance and
Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601 et
seq.).
SEC. 13. RELIGIOUS AND NONPROFIT ORGANIZATIONS.
(a) Prohibition on States.--No State or political subdivision of a
State shall exercise its power of eminent domain, or allow the exercise
of such power by any person or entity to which such power has been
delegated, over property of a religious or other nonprofit organization
by reason of the nonprofit or tax-exempt status of such organization,
or any quality related thereto if that State or political subdivision
receives Federal economic development funds during any fiscal year in
which it does so.
(b) Ineligibility for Federal Funds.--A violation of subsection (a)
by a State or political subdivision shall render such State or
political subdivision ineligible for any Federal economic development
funds for a period of 2 fiscal years following a final judgment on the
merits by a court of competent jurisdiction that such subsection has
been violated, and any Federal agency charged with distributing those
funds shall withhold them for such 2-year period, and any such funds
distributed to such State or political subdivision shall be returned or
reimbursed by such State or political subdivision to the appropriate
Federal agency or authority of the Federal Government, or component
thereof.
(c) Prohibition on Federal Government.--The Federal Government or
any authority of the Federal Government shall not exercise its power of
eminent domain over property of a religious or other nonprofit
organization by reason of the nonprofit or tax-exempt status of such
organization, or any quality related thereto.
SEC. 14. REPORT BY FEDERAL AGENCIES ON REGULATIONS AND PROCEDURES
RELATING TO EMINENT DOMAIN.
Not later than 180 days after the date of the enactment of this
Act, the head of each Executive department and agency shall review all
rules, regulations, and procedures and report to the Attorney General
on the activities of that department or agency to bring its rules,
regulations and procedures into compliance with this Act.
SEC. 15. SENSE OF CONGRESS.
It is the sense of Congress that any and all precautions shall be
taken by the government to avoid the unfair or unreasonable taking of
property away from survivors of Hurricane Katrina who own, were
bequeathed, or assigned such property, for economic development
purposes or for the private use of others.
Passed the House of Representatives November 3, 2005.
Attest:
JEFF TRANDAHL,
Clerk.
By Gerasimos C. Vans,
Deputy Clerk.