09 | 14 | 2006 Posted By Bill Ward

Eminent Domain: Property Rights Act of 2006

Just in the nick of time, and two weeks before the United States Senate will adjourn, Senator James Inhofe (Republican, Oklahoma) introduced the "Property Rights Protection Act of 2006" (S3873). The bill is the same as H.R. 4128 which was passed by the House of Representatives in 2005 (325 affirmative votes to 38). H.R. 4128 has been dormant in the Senate Judiciary Committee, despite the efforts of many property reform groups to see some action.

The new bill, S3873, will go directly to the floor of the Senate, requiring Senator Majority Leader Bill Frist to put eminent domain reform on the agenda. Other Republicans,  including Arlen Specter, Bill Frist and President George Bush are missing in action on this issue. Eminent Domain reform is an important issue nationwide and will not go away.

To write or email your senators on this issue click here. You have 14 days to act.

Continue to read the full text of the bill.

Calendar No. 596

 

109th CONGRESS

 

2d Session

To protect private property rights.

 

September 7 (legislative day, September 6), 2006

Mr. INHOFE introduced the following bill; which was read the first time

 

September 8, 2006

Read the second time and placed on the calendar

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 2006'.

 

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- 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.

Calendar No. 596

 

109th CONGRESS

 

2d Session

To protect private property rights.

 

September 8, 2006

Read the second time and placed on the calendar

 

A BILL

 

S. 3873

 

A BILL

 

IN THE SENATE OF THE UNITED STATES

 

S. 3873
Written By:Fred Strahlendorf On September 15, 2006 12:09 AM

Thank your for keeping us informed. Great Job!

Written By:jim tarbet On September 15, 2006 12:02 PM

Just a clarification of facts, not a criticism. I'm antsy to see it happen. I'm against Eminent Domain abuse 100% and can give you a thousand legal reasons why.

President Bush Supports Eminent Domain Reform. This is contrary to your comments.
Specific actions included a statement on Nov 3, 2005. See it at:
http://www.whitehouse.gov/omb/legislative/sap/109-1/hr4128sap-h.pdf

Additionally, Transportation published the following memorandom (link to) http://www.fhwa.dot.gov/realestate/emdomguid.htm in Feb 06. Note that it us based on the Appropriations Act (P.L. 109-115, div. A).

I agree that the Senate (Judiciary Committee at least) has been AWOL on the issue. Dick Durbin (D-IL) has blamed it on the Republicans but he won't take a stand. Obama (D-IL) claims he supports it 100% but has never taken a public stand.

One point that seems to be missed in all of this is that Congress has the power to define the Constitution, where clear interpretation is not provided, as their obligation to protect the Constitution.

You guys are lawyers so I won't bore you with the 4,000 years of case/common law. I think it's ironic that you can throw out Stare Decisis and Res Judicata for the convenience of government.

Hope it Helps
Jim Tarbet

Written By:Dorothy Argyros On September 15, 2006 4:19 PM

I totally agree that no governmental or quasi-governmental body should receive ANY taxpayer funding AT ALL if they EVER use condemnation/eminent domain for ANY purpose other than PUBLIC USE as for a school, a road, a jail-house, etc. NEVER for any private entity's private gain. This bill should be passed -- and I further, as a private citizen, vow to BOYCOTT any commercial enterprise that takes any advantage of the dreadful NJ redevelopment laws that have negated what our country stands for!

Written By:Estelle Edwards On September 20, 2006 9:08 AM

Now that the Halpers have lost their farm in Piscataway, NJ, is anything being done to help them? Are people taking up funds and donations to help them find new housing? What's going on with them? If anybody knows, please send me an email or refer me to an appropriate site. It's a crying shame that organized crime has such a toehold on the New Jersey political machinery that this can happen. I would also like to know if there are any worthy candidates running in New Jersey who are taking on the issue of eminent domain abuse. As the vice chair of the Suffolk County Libertarian Organization of New York, I'd like to know. Thank you!