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105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                    105-323
_______________________________________________________________________


 
           PRIVATE PROPERTY RIGHTS IMPLEMENTATION ACT OF 1997

_______________________________________________________________________


October 21, 1997.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Mr. Coble, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1534]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1534) to simplify and expedite access to the Federal 
courts for injured parties whose rights and privileges, secured 
by the United States Constitution, have been deprived by final 
actions of Federal agencies, or other government officials or 
entities acting under color of State law; to prevent Federal 
courts from abstaining from exercising Federal jurisdiction in 
actions where no State law claim is alleged; to permit 
certification of unsettled State law questions that are 
essential to resolving Federal claims arising under the 
Constitution; and to clarify when government action is 
sufficiently final to ripen certain Federal claims arising 
under the Constitution, having considered the same, reports 
favorably thereon with an amendment and recommends that the 
bill as amended do pass.

                           TABLE OF CONTENTS

                                                                  

                                                                   Page
The Amendment..............................................           2
Purpose and Summary........................................           3
Background and Need for Legislation........................           4
Hearings...................................................           5
Committee Consideration....................................           5
Vote of the Committee......................................           5
Committee Oversight Findings...............................           7
Committee on Government Reform and Oversight Findings......           7
New Budget Authority and Tax Expenditures..................           8
Congressional Budget Office Estimate.......................           8
Constitutional Authority Statement.........................           9
Section-by-Section Analysis and Discussion.................           9
Agency Views...............................................          11
Changes in Existing Law Made by the Bill, as Reported......          12
Dissenting Views...........................................          16

    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Private Property Rights 
Implementation Act of 1997''.

SEC. 2. JURISDICTION IN CIVIL RIGHTS CASES.

    Section 1343 of title 28, United States Code, is amended by adding 
at the end the following:
    ``(c) Whenever a district court exercises jurisdiction under 
subsection (a) in an action in which the operative facts concern the 
uses of real property, it shall not abstain from exercising or 
relinquish its jurisdiction to a State court in an action where no 
claim of a violation of a State law, right, or privilege is alleged, 
and where a parallel proceeding in State court arising out of the same 
operative facts as the district court proceeding is not pending.
    ``(d) Where the district court has jurisdiction over an action 
under subsection (a) in which the operative facts concern the uses of 
real property and which cannot be decided without resolution of a 
significant but unsettled question of State law, the district court may 
certify the question of State law to the highest appellate court of 
that State. After the State appellate court resolves the question 
certified to it, the district court shall proceed with resolving the 
merits. The district court shall not certify a question of State law 
under this subsection unless the question of State law--
            ``(1) will significantly affect the merits of the injured 
        party's Federal claim; and
            ``(2) is so unclear and obviously susceptible to a limiting 
        construction as to render premature a decision on the merits of 
        the constitutional or legal issue in the case.
    ``(e)(1) Any claim or action brought under section 1979 of the 
Revised Statutes of the United States (42 U.S.C. 1983) to redress the 
deprivation of a property right or privilege secured by the 
Constitution shall be ripe for adjudication by the district courts upon 
a final decision rendered by any person acting under color of any 
statute, ordinance, regulation, custom, or usage, of any State or 
territory of the United States, that causes actual and concrete injury 
to the party seeking redress.
    ``(2) For purposes of this subsection, a final decision exists if--
            ``(A) any person acting under color of any statute, 
        ordinance, regulation, custom, or usage, of any State or 
        territory of the United States, makes a definitive decision 
        regarding the extent of permissible uses on the property that 
        has been allegedly infringed or taken, without regard to any 
        uses that may be permitted elsewhere;
            ``(B) one meaningful application to use the property has 
        been submitted but denied, and the party seeking redress has 
        applied for but is denied one appeal or waiver, where the 
        applicable statute, ordinance, custom, or usage provides a 
        mechanism for appeal to or waiver by an administrative agency; 
        and
            ``(C) in a case involving the uses of real property, where 
        the applicable statute or ordinance provides for review of the 
        case by elected officials, the party seeking redress has 
        applied for but is denied such review.
The party seeking redress shall not be required to apply for an appeal 
or waiver described in subparagraph (B) if no such appeal or waiver is 
available, if it cannot provide the relief requested, or if the 
prospects of success are reasonably unlikely and intervention by the 
district court is warranted to decide the merits.
    ``(3) For purposes of this subsection, a final decision shall not 
require the party seeking redress to exhaust judicial remedies provided 
by any State or territory of the United States.''.

SEC. 3. UNITED STATES AS DEFENDANT.

    Section 1346 of title 28, United States Code, is amended by adding 
at the end the following:
    ``(h)(1) Any claim brought under subsection (a) that is founded 
upon a property right or privilege secured by the Constitution, but was 
allegedly infringed or taken by the United States, shall be ripe for 
adjudication upon a final decision rendered by the United States, that 
causes actual and concrete injury to the party seeking redress.
    ``(2) For purposes of this subsection, a final decision exists if--
            ``(A) the United States makes a definitive decision 
        regarding the extent of permissible uses on the property that 
        has been allegedly infringed or taken, without regard to any 
        uses that may be permitted elsewhere; and
            ``(B) one meaningful application to use the property has 
        been submitted but denied, and the party seeking redress has 
        applied for but is denied one appeal or waiver, where the 
        applicable law of the United States provides a mechanism for 
        appeal to or waiver by an administrative agency.
The party seeking redress shall not be required to apply for an appeal 
or waiver described in subparagraph (B) if no such appeal or waiver is 
available, if it cannot provide the relief requested, or if the 
prospects of success are reasonably unlikely and intervention by the 
district court or the United States Court of Federal Claims is 
warranted to decide the merits.''.

SEC. 4. JURISDICTION OF COURT OF FEDERAL CLAIMS.

    Section 1491(a) of title 28, United States Code, is amended by 
adding at the end the following:
    ``(3) Any claim brought under this subsection founded upon a 
property right or privilege secured by the Constitution, but allegedly 
infringed or taken by the United States, shall be ripe for adjudication 
upon a final decision rendered by the United States, that causes actual 
and concrete injury to the party seeking redress. For purposes of this 
paragraph, a final decision exists if--
            ``(A) the United States makes a definitive decision 
        regarding the extent of permissible uses on the property that 
        has been allegedly infringed or taken, without regard to any 
        uses that may be permitted elsewhere; and
            ``(B) one meaningful application to use the property has 
        been submitted but denied, and the party seeking redress has 
        applied for but is denied one appeal or waiver, where the 
        applicable law of the United States provides a mechanism for 
        appeal or waiver.
The party seeking redress shall not be required to apply for an appeal 
or waiver described in subparagraph (B) if no such appeal or waiver is 
available, if it cannot provide the relief requested, or if the 
prospects of success are reasonably unlikely and intervention by the 
United States Court of Federal Claims is warranted to decide the 
merits.''.

SEC. 5. EFFECTIVE DATE.

    The amendments made by this Act shall apply to actions commenced on 
or after the date of the enactment of this Act.

                          Purpose and Summary

    The purpose of H.R. 1534, as amended, is to provide private 
property owners claiming a violation of the Fifth Amendment's 
taking clause some certainty as to when they may file the claim 
in federal court by addressing the procedural hurdles of the 
ripeness and abstention doctrines which currently prevent them 
from having fair and equal access to federal court. H.R. 1534 
defines when a final agency decision has occurred for purposes 
of meeting the ripeness requirement and prohibits a federal 
judge from abstaining from or relinquishing its jurisdiction 
when the case does not allege any violation of a state law, 
right, or privilege as a means of overcoming judicial 
reluctance to review takings claims based on the abstention 
doctrines.

                Background and the Need for Legislation

    Representative Gallegly introduced H.R. 1534 on May 6, 
1997. Chairman Coble and Representatives Sensenbrenner, 
Goodlatte, Bono, Cannon, McCollum, and Canady are cosponsors of 
the bill.
    The United States Constitution protects individuals from 
having their private property ``taken'' by the government 
without receiving just compensation. U.S. Const. Amend. V. From 
the Takings Clause a complex body of law upon which federal 
courts use to find a ``taking'' developed. In conjunction with 
takings law, a complex set of doctrines used by federal courts 
in finding that a takings claim is ready to be heard on the 
merits also developed. These are the doctrines of ``ripeness'' 
and ``abstention.''
    Under current case law, a takings claim must be ``ripe'' to 
be heard in federal court. In a key decision, the Supreme Court 
attempted to clarify the ripeness principles. In Williamson 
County Planning Comm'n v. Hamilton Bank of Johnson City, 473 
U.S. 172, 87 L.Ed. 2d 126, 105 S. Ct. 3108 (1985), the Court 
stated that a takings claimant must show: (1) that there has 
been issued a ``final decision regarding the application of the 
regulations to the property at issue'' from ``the government 
entity charged with implementing the regulations,'' id., at 
186; and (2) that the claimant requested ``compensation through 
the procedures the State has provided for doing so,'' id., at 
194. A takings plaintiff must meet both requirements before the 
case will be considered ripe for federal adjudication.
    A federal court may also abstain from hearing a takings 
case under the judicially created doctrine of ``abstention.'' 
This doctrine allows federal judges to exercise discretion in 
deciding whether or not to accept cases that are properly under 
the court's jurisdiction. Federal courts are reluctant to 
adjudicate state political and judicial controversies. When a 
claim presents a federal question that would not need to be 
resolved if an underlying challenged state action of an 
unsettled state law issue were determined, a federal court will 
likely abstain. Railroad Commission of Texas v. Pullman Co., 
312 U.S. 496 (1941). Federal courts also abstain from hearing 
cases which touch on sensitive state regulatory issues which 
are best left to the state courts. Burford v. Sun Oil Co., 319 
U.S. 315 (1943). Federal judges often use the abstention 
doctrines to refer takings cases back to state courts before 
reaching the merits of the Fifth Amendment takings claims.
    Control over land use lies with local entities. Private 
property owners must submit a land use proposal to the local 
agency for approval. For many applicants, this application is 
the beginning of a negotiation process regarding the permitted 
land uses. However, this process can take years for property 
owners who are left in regulatory limbo due to the local 
entities failure to make a final decision as to what land use 
is permitted. As a result, property owners are not able to use 
or develop their land.
    While this result could be construed as a Fifth Amendment 
taking, the applicant is, for all practical purposes, unable to 
file a claim in federal court. Local land use authorities do 
not want to be sued in federal court and can abuse the system 
by purposely withholding a final agency decision. To further 
frustrate the problem, the federal court decisions interpreting 
the Supreme Courts ``ripeness'' definition are conflicting and 
confusing, providing little guidance to property owners as to 
when a case is ``ripe'' for federal adjudication.
    Federal judges are often reluctant to get involved in land 
use issues. They can, and do, dismiss takings cases back to 
state court based on the abstention doctrines or the lack of 
ripeness. Most property owners do not have the time and money 
necessary to pursue their case through the state court and then 
re-file in federal court. The extensive use of the abstention 
doctrines to avoid land use cases, even ones involving only a 
federal claim, has become a barrier to federal court, leaving 
takings plaintiffs without an option. Plaintiffs alleging 
violations of other fundamental rights do not encounter these 
same barriers to having their case be heard in federal court on 
the merits.
    H.R. 1534 seeks to address these procedural blockades and 
offer property owners more certainty as to the federal 
adjudicatory process governing takings. H.R. 1534 accomplishes 
this by defining when a final agency decision takes place and 
prohibiting federal judges from invoking the abstention 
doctrine to avoid cases that involve only Fifth Amendment 
takings claims. H.R. 1534 does not affect traditional 
interpretations of the abstention doctrine by injecting the 
federal courts into state and local issues because the 
legislation applies only to federal claims.

                                Hearings

    The Subcommittee on Courts and Intellectual Property held a 
legislative hearing on H.R.1534, the ``Private Property Rights 
Implementation Act of 1997,'' on September 25, 1997. Testimony 
was received from five witnesses, who collectively, represented 
federal and state attorney's general offices, the National 
Association of Home Builders, and a preeminent land use 
professor.

                        Committee Consideration

    On September 30, 1997, the Subcommittee on Courts and 
Intellectual Property met in open session and ordered reported 
the bill, H.R. 1534, as amended, by voice vote, a quorum being 
present. On October 7, 1997, the Committee met in open session 
and ordered reported favorably the bill, H.R. 1534, with 
amendment, by a recorded vote of 18 to 10, a quorum being 
present.

                         Vote of the Committee

                             Rollcall No. 1

    On the Amendment offered by Mr. Conyers and Ms. Jackson Lee 
to the Amendment in the Nature of a Substitute: The Amendment 
was defeated by a recorded vote of 7 to 17.

        AYES                          NAYS

Mr. Conyers                         Mr. McCollum
Mr. Frank                           Mr. Coble
Mr. Nadler                          Mr. Smith (TX)
Ms. Jackson Lee                     Mr. Gallegly
Ms. Waters                          Mr. Inglis
Mr. Delahunt                        Mr. Goodlatte
Mr. Rothman                         Mr. Buyer
                                    Mr. Bono
                                    Mr. Chabot
                                    Mr. Jenkins
                                    Mr. Hutchinson
                                    Mr. Pease
                                    Mr. Cannon
                                    Mr. Watt
                                    Ms. Lofgren
                                    Mr. Wexler
                                    Mr. Hyde

                             Rollcall No. 2

    On the Motion by Ms. Lofgren to Recommit the Bill: The 
motion was defeated by a recorded vote of 7 to 16.

        AYES                          NAYS

Mr. Conyers                         Mr. Sensenbrenner
Mr. Frank                           Mr. McCollum
Mr. Watt                            Mr. Coble
Ms. Lofgren                         Mr. Smith (TX)
Mr. Meehan                          Mr. Gallegly
Mr. Delahunt                        Mr. Inglis
Mr. Wexler                          Mr. Goodlatte
                                    Mr. Buyer
                                    Mr. Bono
                                    Mr. Bryant (TN)
                                    Mr. Chabot
                                    Mr. Barr
                                    Mr. Jenkins
                                    Mr. Cannon
                                    Mr. Rothman
                                    Mr. Hyde

                             Rollcall No. 3

    On the Amendment to the Amendment in the Nature of a 
Substitute, as amended, offered by Mr. Watt: The Amendment was 
defeated by a recorded vote of 10 to 17.

        AYES                          NAYS

Mr. Conyers                         Mr. Sensenbrenner
Mr. Frank                           Mr. McCollum
Mr. Berman                          Mr. Coble
Mr. Scott                           Mr. Smith (TX)
Mr. Watt                            Mr. Gallegly
Ms. Lofgren                         Mr. Canady
Ms. Waters                          Mr. Inglis
Mr. Meehan                          Mr. Goodlatte
Mr. Wexler                          Mr. Buyer
Mr. Rothman                         Mr. Bono
                                    Mr. Bryant (TN)
                                    Mr. Chabot
                                    Mr. Barr
                                    Mr. Jenkins
                                    Mr. Hutchinson
                                    Mr. Cannon
                                    Mr. Hyde

                             Rollcall No. 4

    On the Question on reporting favorably to the House as 
amended: The motion to report the bill favorably to the House 
as amended was adopted by a recorded vote of 18 to 10.
        AYES                          NAYS

Mr. Sensenbrenner                   Mr. Conyers
Mr. McCollum                        Mr. Frank
Mr. Gekas                           Mr. Berman
Mr. Coble                           Mr. Scott
Mr. Smith (TX)                      Mr. Watt
Mr. Gallegly                        Ms. Lofgren
Mr. Canady                          Ms. Jackson Lee
Mr. Inglis                          Ms. Waters
Mr. Goodlatte                       Mr. Meehan
Mr. Buyer                           Mr. Wexler
Mr. Bono
Mr. Bryant (TN)
Mr. Chabot
Mr. Jenkins
Mr. Hutchinson
Mr. Cannon
Mr. Rothman
Mr. Hyde

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budget authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    ``In compliance with clause 2(l)C)(3) of the rules of the 
House of Representatives, the Committee sets forth, with 
respect to the bill H.R. 1534, the following estimate and 
comparison prepared by the Director of the Congressional budget 
Office under section 403 of the Congressional Budget act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 16, 1997.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1534, the Private 
Property Rights Implementation Act of 1997.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Susanne S. 
Mehlman (for federal costs), who can be reached at 226-2860, 
Leo Lex (for the state and local impact), who can be reached at 
225-3220, and Matt Eyles (for the private-sector impact), who 
can be reached at 226-2649.
            Sincerely,

                                           June E. O'Neill, Director.  
    Enclosure.

H.R 1534--Private Property Rights Implementation Act of 1997

    Enacting H.R 1534 would give greater access to federal 
courts to plaintiffs making claims based on property owners' 
rights secured by the Constitution. As a result, the bill is 
likely to impost additional costs on the U.S court system. 
While some of the affected cases could be time-consuming and 
costly, CBO cannot predict the number or cost of such cases. 
Enactment of H.R. 1534 would not affect direct spending or 
receipts of the federal government, and therefore, pay-as-you-
go procedures would not apply.
    The Fifth Amendment prohibits the taking of private 
property for public use without just compensation. This 
restriction on government action is extended to the states 
through the duo process clause of the 14th Amendment. H.R. 1534 
would primarily affect takings claims directed at the 
regulatory decisions of state and local governments. First, 
this bill would prohibit a federal district court from 
exercising its current right to abstain from hearing certain 
takings claims. H.R. 1534 also would define ``final decision'' 
for these properly rights claims, thereby relaxing the 
standards by which such claims are found ripe for adjudication 
in federal district courts or the U.S. Court of Federal Claims. 
With regard to district courts, the definition specifically 
removes the requirement that plaintiffs exhaust all state 
remedies before proceeding to federal court.
    Most takings cases affected by this bill would originate 
from a dispute over a state or local land use regulation. When 
local regulation is at issue, a number of appeals to local 
governing boards may occur. When those venues are exhausted and 
when the claim asserts a taking, federal courts often defer to 
state courts by refusing jurisdiction in such matters. The 
federal courts open argue that such cases are not ripe for 
federal adjudication because plaintiffs have not exhausted 
their opportunities to obtain compensation through the state 
courts. CBO expects that enacting the jurisdictional changes 
under H.R. 1534 would give plaintiff greater access to federal 
courts, thus imposing additional costs on the U.S. court system 
to He extent that additional takings claims are filed and heard 
in federal courts.
    Based on information from various legal experts, CBO 
estimates that only a small percentage of all civil cases filed 
in state courts involve takings claims. Of these, CBO believes 
that only a small proportion would be tried in federal court as 
the result of H.R. 1534, in part because state and local 
regulators may have an incentive to settle with plaintiffs in 
order to avoid a trial in federal court. On the other hand, 
most cases that would reach trial in a federal court as a 
result of this bill are likely to involve relatively large 
claims and could be time-consuming and costly. CBO has no basis 
for estimating the number of cases that would be affected or 
the amount of court costs that would result. Any such costs 
would come from appropriated funds.
    Section 4 of the Unfunded Mandates Reform Act of 1995 
(UMRA) excludes from application of that act legislative 
provisions that enforce constitutional rights of individuals. 
Because the changes to federal jurisdiction over property 
rights cases could involve the enforcement of certain 
individual constitutional rights, H.R. 1534 may be excluded. In 
any event, because the changes only affect federal court 
procedures, the bill would not impose any enforceable duty on 
state, local, or tribal governments, or on the private sector.
    The CBO staff contacts for this estimate are Susanne S. 
Mehlman (for federal costs), who can be reached at 226-2860, 
Leo Lax (for the state and local impact), who can be reached at 
225-3220, and Matt Eyles (forge private-sector impact), who can 
be reached at 226-2649. This estimate was approved by Robert A. 
Sunshine, Assistant Deputy Director for Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to Rule XI, clause 2(l)(4) of the Rule of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article I, clause 18, section 8 of the 
Constitution.

                      Section-by-Section Analysis

                        Section 1.--Short Title

    This section provides the short title of the bill, the 
``Private Property Rights Implementation Act of 1997.''

             Section 2.--Jurisdiction in Civil Rights Cases

    Section two deals with claims brought pursuant to 42 U.S.C. 
Sec. 1983. It prohibits a district court with jurisdiction over 
a takings case from abstaining from exercising or relinquishing 
its jurisdiction when the case does not allege any violation of 
a state law, right or privilege. It provides that when a 
significant question of state law must be settled in order to 
proceed, a certified question may be directed to the highest 
appellate court in the state for clarification.
    This section defines a ``final decision'' as having been 
reached when, after filing a meaningful application to use the 
property, a definitive decision regarding the extent of the 
permissible uses on the property without regard to any uses 
that may be permitted elsewhere is made. The bill applies only 
to actions involving the uses of real property. If an appellate 
process is available, the applicant need only receive one 
denied appeal or request for a waiver from an administrative 
agency or be denied such review if the appeal is to a body of 
elected officials to have a final decision. If an appeal or a 
request for a waiver is futile, it is not required.
    This section also removes the requirement that the 
plaintiff exhaust all State remedies before being able to 
proceed to federal court.

                Section 3.--United States as a Defendant

    This section deals with claims where the United States is 
the defendant. It amends the statute conferring concurrent 
jurisdiction on the Court of Federal Claims for takings in 
cases of less of $10,000. A final decision is defined as having 
occurred when a meaningful application to use the property is 
filed and a definite decision regarding on-site uses is made. 
The applicant must receive one denied appeal or request for a 
waiver from an administrative agency, unless it would be 
futile.

          Section 4.--Jurisdiction of Court of Federal Claims

    This section deals with the jurisdiction of the Court of 
Federal Claims. It amends the statute conferring exclusive 
jurisdiction on the Court of Federal Claims for takings in 
excess of $10,000. A final decision is defined as having 
occurred when a meaningful application to use the property is 
filed and a definitive decision regarding the extent of 
permissible uses on the property without regard to the uses 
that may be permitted elsewhere is made. The applicant is 
required to receive one denied appeal or request for a waiver 
from an administrative agency, unless it would be futile.

                       Section 5.--Effective Date

    This section states that the amendments made by H.R. 1534 
shall apply to actions commenced on or after the date of the 
enactment of this Act.

                              Agency Views

                         U.S. Department of Justice
                             Office of Legislative Affairs,
                                   Washington, DC, October 6, 1997.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: This is to express the Department of 
Justice's serious concerns with H.R. 1534, the ``Private 
Property Rights Implementation Act of 1997,'' which was 
recently the subject of a Courts and Intellectual Subcommittee 
markup, and which the House Judiciary Committee will consider 
this week. The Department continues to oppose the bill 
strongly, and the Attorney General would recommend that the 
President veto the bill if passed.
    On September 25, 1997, Acting Associate Attorney General 
John C. Dwyer presented the Department's views on H.R. 1534 in 
testimony before the Subcommittee on Courts and Intellectual 
Property. That testimony described two principal objections to 
the original bill's provisions respecting the ripeness of 
Federal court takings claims against state and local 
governments: (1) policy-based objections to the proposed 
relaxation of existing standards for determining when a 
property owner has secured a final decision from state and 
local authorities; and (2) constitutional objections to the 
proposed elimination of the existing requirement that a 
property owner seek compensation in state court before filing a 
Federal court takings action. Although the Subcommittee 
approved amendments to the bill on September 30th, the 
amendments do not alleviate either of these concerns.
    The recent revisions to the bill's provisions concerning 
when Federal courts should treat state and local land-use 
decisions as final determinations for purposes of takings 
litigation strengthen our policy objections to the bill as a 
severe threat to the integrity of state and local land use 
planning processes. The amendments clarify that developers and 
other claimants can sidestep local procedures after a single 
land use application and waiver denial, and instead sue local 
officials in Federal court. This circumvention would diminish 
the role of local elected officials and the public in the 
resolution of local issues. Like the bill as introduced, the 
bill as amended would allow claimants, who have received an 
initial decision from local regulators, to circumvent all local 
waiver, appeal, or variance procedures by showing only that 
they are ``reasonably unlikely'' to succeed in the process. 
Evaluation of such claims would draw Federal courts into local 
land use disputes far earlier. The bill would elevate the 
rights of developers at the expense of neighboring property 
owners and others who would be harmed by deleterious land use 
proposals. It would permit developers to threaten premature 
litigation, and thus give them inappropriate leverage in their 
dealings with local officials in a way that would injure 
neighboring property owners and the community as a whole.
    The recent amendments to the bill also fail to correct the 
original bill's constitutionally problematic proposal to 
eliminate the requirement that property owners seek 
compensation through state courts before litigating a takings 
claim in Federal court. The Supreme Court has held that this 
requirement flows from the nature of the right secured by the 
Just Compensation Clause. Because that Clause prohibits only 
uncompensated takings, it is only violated when a state or 
locality refuses to provide just compensation for property that 
has been taken. If the bill were interpreted to allow property 
owners to obtain Federal court takings judgments against states 
and localities without first seeking compensation in state 
court, the bill would effectively alter the Supreme Court's 
authoritative interpretation of the nature of the restriction 
that the Just Compensation Clause places on state and local 
action. Congress, however, lacks the power to alter the 
constitutional obligations of the states in this manner. To 
avoid this unconstitutional result, Federal courts could comply 
with the literal instruction of H.R. 1534 by treating Federal 
court takings actions against states and localities as ripe for 
adjudication, even when property owner plaintiffs had failed to 
seek compensation using available state court procedures, while 
nevertheless dismissing such actions for failure to state a 
viable claim for relief. This saving construction of the bill's 
state-compensation provision, however, would appear to deprive 
that provision of all practical effect.
    The bill's other major provision would prohibit Federal 
courts from ``abstaining'' or deferring to state courts on 
certain delicate issues of state law. The Subcommittee's 
amendments limit the abstention ban to cases that concern real 
property and where there is no parallel state court proceeding. 
Although the amendments narrow its scope, the abstention ban is 
still expressly designed to prohibit Federal courts from 
deferring to state courts on certain delicate issues of state 
law, thereby undermining state sovereignty, Federalism, and the 
legitimate role of state courts. The Department's testimony (p. 
12) discusses a case involving a real property claim, Meredith 
v. Talbot County, 828 F.2d 228 (4th Cir. 1987), where the 
Federal court properly deferred on the interpretation of a new 
and complex state law that had never been interpreted by the 
state courts, thereby avoiding an unseemly exercise in which 
Federal courts would have to guess at the meaning of new state 
laws. The bill as amended would prohibit abstention in similar 
cases in the future.
    The Department's other concerns with the bill are set forth 
in our testimony. Thank you for considering our views. The 
Office of Management and Budget has advised this Department 
that there is no objection to submission of this report from 
the standpoint of the Administration's program.
            Sincerely,

                                               Andrew Fois,
                                        Assistant Attorney General.

cc:    Hon. John Conyers, Jr.,
          Ranking Minority Member.

          Hon. Elton Gallegly.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3 of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

                      TITLE 28, UNITED STATES CODE

          * * * * * * *

                    PART IV--JURISDICTION AND VENUE

          * * * * * * *

               CHAPTER 85--DISTRICT COURTS; JURISDICTION

          * * * * * * *

Sec. 1343. Civil rights and elective franchise

    (a) * * *
          * * * * * * *
    (c) Whenever a district court exercises jurisdiction under 
subsection (a) in an action in which the operative facts 
concern the uses of real property, it shall not abstain from 
exercising or relinquish its jurisdiction to a State court in 
an action where no claim of a violation of a State law, right, 
or privilege is alleged, and where a parallel proceeding in 
State court arising out of the same operative facts as the 
district court proceeding is not pending.
    (d) Where the district court has jurisdiction over an 
action under subsection (a) in which the operative facts 
concern the uses of real property and which cannot be decided 
without resolution of a significant but unsettled question of 
State law, the district court may certify the question of State 
law to the highest appellate court of that State. After the 
State appellate court resolves the question certified to it, 
the district court shall proceed with resolving the merits. The 
district court shall not certify a question of State law under 
this subsection unless the question of State law--
            (1) will significantly affect the merits of the 
        injured party's Federal claim; and
            (2) is so unclear and obviously susceptible to a 
        limiting construction as to render premature a decision 
        on the merits of the constitutional or legal issue in 
        the case.
    (e)(1) Any claim or action brought under section 1979 of 
the Revised Statutes of the United States (42 U.S.C. 1983) to 
redress the deprivation of a property right or privilege 
secured by the Constitution shall be ripe for adjudication by 
the district courts upon a final decision rendered by any 
person acting under color of any statute, ordinance, 
regulation, custom, or usage, of any State or territory of the 
United States, that causes actual and concrete injury to the 
party seeking redress.
    (2) For purposes of this subsection, a final decision 
exists if--
            (A) any person acting under color of any statute, 
        ordinance, regulation, custom, or usage, of any State 
        or territory of the United States, makes a definitive 
        decision regarding the extent of permissible uses on 
        the property that has been allegedly infringed or 
        taken, without regard to any uses that may be permitted 
        elsewhere;
            (B) one meaningful application to use the property 
        has been submitted but denied, and the party seeking 
        redress has applied for but is denied one appeal or 
        waiver, where the applicable statute, ordinance, 
        custom, or usage provides a mechanism for appeal to or 
        waiver by an administrative agency; and
            (C) in a case involving the uses of real property, 
        where the applicable statute or ordinance provides for 
        review of the case by elected officials, the party 
        seeking redress has applied for but is denied such 
        review.
The party seeking redress shall not be required to apply for an 
appeal or waiver described in subparagraph (B) if no such 
appeal or waiver is available, if it cannot provide the relief 
requested, or if the prospects of success are reasonably 
unlikely and intervention by the district court is warranted to 
decide the merits.
    (3) For purposes of this subsection, a final decision shall 
not require the party seeking redress to exhaust judicial 
remedies provided by any State or territory of the United 
States.
          * * * * * * *

Sec. 1346. United States as defendant

    (a) * * *
          * * * * * * *
    (h)(1) Any claim brought under subsection (a) that is 
founded upon a property right or privilege secured by the 
Constitution, but was allegedly infringed or taken by the 
United States, shall be ripe for adjudication upon a final 
decision rendered by the United States, that causes actual and 
concrete injury to the party seeking redress.
    (2) For purposes of this subsection, a final decision 
exists if--
            (A) the United States makes a definitive decision 
        regarding the extent of permissible uses on the 
        property that has been allegedly infringed or taken, 
        without regard to any uses that may be permitted 
        elsewhere; and
            (B) one meaningful application to use the property 
        has been submitted but denied, and the party seeking 
        redress has applied for but is denied one appeal or 
        waiver, where the applicable law of the United States 
        provides a mechanism for appeal to or waiver by an 
        administrative agency.
The party seeking redress shall not be required to apply for an 
appeal or waiver described in subparagraph (B) if no such 
appeal or waiver is available, if it cannot provide the relief 
requested, or if the prospects of success are reasonably 
unlikely and intervention by the district court or the United 
States Court of Federal Claims is warranted to decide the 
merits.
          * * * * * * *

           CHAPTER 91--UNITED STATES COURT OF FEDERAL CLAIMS

          * * * * * * *

Sec. 1491. Claims against United States generally, actions involving 
                    Tennessee Valley Authority

    (a)(1) * * *
          * * * * * * *
    (3) Any claim brought under this subsection founded upon a 
property right or privilege secured by the Constitution, but 
allegedly infringed or taken by the United States, shall be 
ripe for adjudication upon a final decision rendered by the 
United States, that causes actual and concrete injury to the 
party seeking redress. For purposes of this paragraph, a final 
decision exists if--
            (A) the United States makes a definitive decision 
        regarding the extent of permissible uses on the 
        property that has been allegedly infringed or taken, 
        without regard to any uses that may be permitted 
        elsewhere; and
            (B) one meaningful application to use the property 
        has been submitted but denied, and the party seeking 
        redress has applied for but is denied one appeal or 
        waiver, where the applicable law of the United States 
        provides a mechanism for appeal or waiver.
The party seeking redress shall not be required to apply for an 
appeal or waiver described in subparagraph (B) if no such 
appeal or waiver is available, if it cannot provide the relief 
requested, or if the prospects of success are reasonably 
unlikely and intervention by the United States Court of Federal 
Claims is warranted to decide the merits.
          * * * * * * *

                            DISSENTING VIEWS

    We strongly oppose H.R. 1534, the ``Private Property Rights 
Implementation Act of 1997.''
    As amended and approved in Subcommittee and by the 
Committee, the legislation appreciably narrows the ripeness 
judicial doctrine thereby forcing premature federal involvement 
in local land use disputes; and it significantly pares back the 
judicial requirement that federal courts generally abstain from 
resolving sensitive state political and judicial controversies. 
Moreover, these changes are being made for the benefit of one 
set of plaintiffs--real property owners alleging Fifth 
Amendment takings--to the exclusion of all other persons who 
face abrogation of their constitutional rights.
    Although H.R. 1534 has been characterized as purely 
``procedural,'' it will have a significant impact on takings 
cases and will severely tilt the playing field in favor of 
developers and landowners. In addition to encouraging forum 
shopping between federal and state courts, the legislation 
tells the States and municipalities that they are not competent 
to adjudicate their land disputes, and that a federal court 
should be brought in at the earliest possible point in the 
litigation to save localities from their alleged biases. 
Significantly, this legislation represents the very first 
effort which specifically targets our state and local 
governments and forces the federal bench into their 
decisionmaking process.
    There is no hard or quantifiable data which supports this 
ill-considered intrusion into the law of takings. Although the 
Majority frequently cites the experiences of widows facing 
zoning and land use difficulties, beneficiaries of the bill 
also include landowners and professional developers. At a 
relative disadvantage will be families in neighborhoods who 
reside near property whose development potential would be 
enhanced by this bill.
    Because in this case changes in process do in fact greatly 
disturb takings law in a fashion we are not prepared to accept, 
and, independent of that concern, because the actual language 
of H.R. 1534 is so inartfully drawn and problematic, we oppose 
this legislation.

                       Background and Current Law

    H.R. 1534 is the most recent attempt in a multi-Congress 
effort to change the perceived imbalance of power between 
developers and governmental entities with respect to land use 
decisions. The 104th Congress withstood a major effort by the 
Majority to dramatically expand takings laws, in order to 
provide easier and greater compensation to denied developers 
and polluters, by legislative fiat.\1\ In this Congress the 
Majority's principal effort to favor such developers comes in 
the form of H.R. 1534 which would substantially narrow the 
doctrines of ``Abstention'' and ``Ripeness.''
---------------------------------------------------------------------------
    \1\ Two takings bills emerged among several proposals during the 
104th Congress. The Private Property Protection Act of 1995 [H.R. 925, 
104th Cong., 1st Sess. (1995)] passed the House in March of 1995 by a 
vote of 277 to 148. Earlier versions of that legislation were 
considered by the House Judiciary Committee and the Constitution 
Subcommittee. In the Senate, Senator Robert Dole and thirty-one co-
sponsors introduced the Omnibus Property Act [S. 605, 104th Cong., 1st 
Sess. (1995)] in March 1995. The Senate Environment and Public Works 
Committee held hearings in June and July 1995, and the Senate Judiciary 
Committee held hearings between April and October 1995. In December 
1995 the Judiciary Committee marked up the bill, and ordered it 
reported on the floor of the Senate with minor changes. The full Senate 
did not take up the bill.
---------------------------------------------------------------------------
1. Abstention
    Abstention is a discretionary doctrine under which federal 
judges may decline to decide cases that are otherwise properly 
before the federal courts, and is based on the notion that 
federal courts should not intrude on sensitive state political 
and judicial controversies unless necessary. The two basic 
abstention doctrines (Pullman and Burford) call for either 
retaining jurisdiction over the case but sending the litigants 
to state court for a determination of the state law question 
(Pullman \2\) or dismissing the action in cases touching on a 
complex state regulatory scheme concerning matters of state 
policy more properly addressed by state courts (Burford \3\). 
The latter doctrine was recently narrowed, when the Supreme 
Court held that abstention does not support outright dismissal 
or remand in actions seeking monetary damages, as opposed to 
equitable or other discretionary relief.\4\ Moreover, a series 
of rulings in the 1980s leveled the playing field as between 
federal and state court for takings claims, and caused federal 
court caseloads to increase, which in the view of legal 
scholars, increased the use of abstention by the District 
Courts.\5\
---------------------------------------------------------------------------
    \2\ Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496 (1941).
    \3\ Burford v. Sun Oil Co., 319 U.S. 315 (1943).
    \4\ Quackenbush v. Allstate Ins. Co., 116 S.Ct. 1712 (1996).
    \5\ See, e.g., Memorandum to Hon. Patrick Leahy, Issues Raised by 
H.R. 1534, the ``Private Property Rights Implementation Act,'' American 
Law Division, Congressional Research Service (Aug. 15, 1997).
---------------------------------------------------------------------------
2. Ripeness
    Ripeness is another judicial doctrine, partly rooted in 
Article III of the United States Constitution's ``cases'' and 
``controversies'' requirement, which seeks to ensure that a 
matter is sufficiently mature for legal resolution. Ripeness in 
the takings context has several elements: finality and 
exhaustion of remedies, and compensation. Finality/exhaustion 
has come to require that before the court can reach the takings 
claim, the property-regulating government body must have 
arrived at a ``final, definitive position'' as to the degree of 
development allowed on the property.\6\ Further, the landowner 
also must exhaust any avenues for a variance, waiver, or other 
exemption from the land use restriction at issue. What this 
means practically is that a ``no'' from a zoning commission or 
other adjudicative body may not be sufficient for a federal 
court to assert itself, since that simple denial may not be 
adequate to determine what use the developer could have made of 
the property, short of the denied proposal. Since the Fifth 
Amendment bars takings without just compensation, rather than 
merely ``takings,'' compensation ripeness requires that 
plaintiffs first seek compensation from state/local or other 
fora, if that remedy is ``adequate.'' Last, there is a 
``futility'' exemption to ripeness: A takings case is ripe 
despite the owner's failure to satisfy the above prerequisites 
if pursuing them would, under the circumstances, be futile.\7\
---------------------------------------------------------------------------
    \6\ Williamson County Planning Comm'n v. Hamilton Bank, 473 U.S. 
172 (1985).
    \7\ MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 350 n. 
7 (1986) (``property owner is of course not required to resort to . . . 
unfair procedures . . .'').
---------------------------------------------------------------------------

                       Description of Legislation

    For abstention, H.R. 1534 provides that a federal district 
court may not abstain from exercising its jurisdiction where no 
state law claim is alleged and no parallel proceeding in state 
court is pending (e.g., where the property owner elects to no 
longer pursue its remedy through state legal proceedings).\8\ 
Only if there exists a ``significant but unsettled'' question 
of state law, may the court certify any such legal question 
implicated by the takings case to the highest appellate court 
of the state. \9\ (Even then, the District Court may not 
certify the question unless it will ``significantly affect'' 
the landowner's claim and the question is ``so unclear'' and 
``obviously susceptible to a limiting construction'' as to make 
the federal court adjudication ``premature.'') \10\
---------------------------------------------------------------------------
    \8\ Sec. 2, proposed new 28 U.S.C. Sec. 1343 c.
    \9\ Sec. 2, proposed new 28 U.S.C. Sec. 1343(d).
    \10\ Sec. 2, proposed new 28 U.S.C. Sec. 1343(d)(1)(2).
---------------------------------------------------------------------------
    For ripeness, H.R. 1534 declares that actions are ripe upon 
``a final decision rendered by any person acting under color of 
any statute, ordinance, regulation, custom, or usage, of any 
State or territory of the United States, that causes actual and 
concrete injury to the party seeking redress.'' \11\ Then, 
``final decision'' is any person's ``definitive decision 
regarding the extent of permissible uses on the property that 
has been allegedly infringed or taken, without regard to any 
uses that may be permitted elsewhere'' and ``one meaningful 
application to use the property has been submitted but denied, 
and the party seeking redress has applied for but is denied one 
appeal or waiver, where the applicable statute, ordinance, 
custom or usage provides a mechanism for appeal to or waiver by 
an administrative agency.'' \12\ Pursuant to an amendment 
offered by Congresswoman Lofgren and accepted at Committee, 
federal courts are also not permitted to intervene in cases 
where the ``applicable statute or ordinance provides for review 
of the case by elected officials'' until the property owner has 
applied for and been denied such review.\13\
---------------------------------------------------------------------------
    \11\ Sec. 2, proposed new 28 U.S.C. Sec. 1343(e)(1).
    \12\ Sec. 2, proposed new 28 U.S.C. Sec. 1343(e)(2) (A) & (B).
    \13\ Sec. 2, proposed new 28 U.S.C. Sec. 1343(e)(2)(C).
---------------------------------------------------------------------------
    With regard to ripeness, the ``one appeal'' requirement 
does not apply ``if no such appeal or waiver is available, if 
it cannot provide the relief requested, or if the prospects of 
success are reasonably unlikely and intervention by the 
district court is warranted to decide the merits'' \14\ 
(thereby substantially expanding the ``futility'' exception 
described above). This is so broadly worded it could have the 
effect of obviating any resort to appeal or waiver. The 
legislation also eliminates the current state exhaustion 
requirement to the ripeness doctrine, presumably overturning 
Williamson County's \15\ state compensation requirement. \16\
---------------------------------------------------------------------------
    \14\ Sec. 2, end paragraph to proposed new 28 U.S.C. 
Sec. 1343(e)(2).
    \15\ Supra n. 6.
    \16\ Sec. 2, proposed new 28 U.S.C. Sec. 1343(e)(3).
---------------------------------------------------------------------------
    Finally, H.R. 1534 makes substantially identical narrowing 
limitations to the ripeness doctrine as it applies to takings 
cases brought against the U.S. government in District Court or 
the Court of Federal Claims.\17\
---------------------------------------------------------------------------
    \17\ Secs. 2 & 3.
---------------------------------------------------------------------------

                       Concerns With Legislation

1. Failure to Maintain Local Control Concerning Land Use Disputes
    A central problem with H.R. 1534 is its attack on the 
primacy of local/state officials in land use matters. It 
threatens directly their control, and will force them into 
federal court as defendants long before a complete record of 
appropriate land use is established. In this regard, it 
threatens to severely diminish the negotiating posture of 
states and local governments relative to developers of land. 
For example, under the bill, a developer could threaten to 
bring a local government into court and incur substantial legal 
and other costs whenever a zoning or development dispute 
arises.\18\ The legislation also gives the developer the option 
of seeking redress in their local state court or in federal 
court, depending upon which has more favorable legal 
precedents. Congress should take steps to prevent forum 
shopping, rather than encourage it as this bill does.
---------------------------------------------------------------------------
    \18\ At an Oct. 9, 1997 Congressional Forum, Mr. Chuck Thompson 
explained that Carroll County, Maryland's outside budget to defend 
themselves in these cases was only $20,000 per year.
---------------------------------------------------------------------------
    The effect of the legislation reported out of the Judiciary 
Committee is to greatly intrude on the proper domain of local 
and municipal officials to determine the best use of land 
within their own jurisdiction. The effect of the bill is to 
significantly move up the point at which the federal courts may 
be asked to adjudicate on that question, and they will be 
forced to do so on a record that will be skeletal in many 
cases. Because of that, several Democrats offered amendments 
the effect of which would have been to restore local decision 
making authority in the area of land use. Only one amendment 
was accepted.
    Congressman Nadler of New York offered an amendment to H.R. 
1534 which would have removed from the effect of the 
legislation takings done ``to protect public health or 
safety.'' The intent of the amendment was to protect the 
superior ability of states and municipalities to determine 
first for themselves appropriate land use policy, including 
those actions taken by the municipality for the sake of health 
and safety. The amendment was rejected by voice vote.
    Congressman Watt of North Carolina offered an amendment 
which would have restored the effect of the current futility 
doctrine. Again, that judicially established doctrine provides 
that appeal or waiver to municipal officials need not be 
entertained for purposes of establishing ripeness if such 
appeal or waiver would be futile. H.R. 1534 dilutes the 
futility doctrine (permitting more rapid review by federal 
courts) if ``no such appeal or waiver is available, if it 
cannot provide the relief requested, or if the prospects of 
success are reasonably unlikely and intervention by the 
district court is warranted to decide the merits.'' \19\
---------------------------------------------------------------------------
    \19\ Sec. 2, end paragraph to proposed new 28 U.S.C. 
Sec. 1343(e)(2).
---------------------------------------------------------------------------
    Congressman Watt's amendment would have eliminated this 
statutory definition of the futility doctrine, the effect of 
which would have arguably been to permit existing case law 
defining the doctrine to remain intact. Rejected 17-10, debate 
over the amendment nonetheless pointed out the inexplicable 
standard remaining in the bill, namely, inter alia, ``if it 
cannot provide the relief requested.'' \20\ This is not a term 
of art, and could mean that no appeals or waiver requests are 
required because administrative agencies cannot provide the 
relief requested--just compensation. It would be difficult to 
discern how a district court, reviewing whether a particular 
claim is ripe under this standard, could know whether or not 
further available appeal at the municipal level could ``provide 
the relief requested.'' In addition, we are concerned with the 
``reasonably unlikely'' standard.\21\ When is a particular 
outcome of litigation not ``reasonably unlikely'' (or likely)? 
An articulation as ambiguous as this invites litigation about 
the standard. Since a central complaint of the proponents of 
this legislation is that current litigation concerning land use 
is too onerous and lengthy, standards as ambiguous as this one 
cannot help alleviate that stated concern.
---------------------------------------------------------------------------
    \20\ Id.
    \21\ Id.
---------------------------------------------------------------------------
    Congressman Watt's amendment served another important 
function in that it raises the point that to the extent 
ripeness is a constitutionally driven doctrine, defined by the 
courts from Article III's ``cases'' and ``controversies'' 
requirement, there is considerable doubt about whether Congress 
has the capacity to legislate in this area. That is, if 
ripeness is constitutionally based, or even partly so, 
Congress' actions to limit it will itself be futile. If this 
aspect of ripeness is prudential, Congress may legislate 
jurisdictional requirements. But, the difficulty of this 
constitutional question argues for more hearings and testimony, 
not a rapid move to the floor of the House of Representatives 
for insufficiently informed judgment. \22\
---------------------------------------------------------------------------
    \22\ Indeed, numerous legal commentators have taken the position 
that ripeness is directly tied into this constitutional requirement. 
See Gregory M. Stein, Regulatory Takings and Ripeness in the Federal 
Courts, 48 Vand L. Rev. 1, 16 (1995) (finality ripeness is prudential; 
compensation ripeness is constitutional); Gregory Overstreet, The 
Ripeness Doctrine of the Takings Clause: A Survey of Decisions Showing 
Just How Far Federal Courts Will Go to Avoid Adjudicating Land Use 
Cases, 10 J. Land Use & Envtl. L. 91 (1994) (both are constitutional).
---------------------------------------------------------------------------
    The one amendment accepted, agreed to by voice vote after 
unanimous consent to limit it, was offered by Congresswoman 
Lofgren, and redefines ``final decision'' to provide that in 
addition to one meaningful application and one appeal/waiver, 
``where the applicable statute or ordinance provides for review 
of the case by elected officials, the party seeking redress has 
applied for but is denied such review.'' \23\ Acceptance of 
this amendment improves this bill, in our view. 
Notwithstanding, debate around this amendment highlights for us 
our remaining problems with the bill, which is that it 
essentially undermines local control of land use decisions by 
injecting federal courts into the decisionmaking process about 
land use long before the time it is necessary or appropriate 
for the federal judiciary to be involved. States and land use 
authorities are competent to determine land use and 
compensation for takings. Federal courts have an appropriate 
role in determining federal takings and reviewing state 
compensation awards or denials, but not acting as fact-finders 
of record.
---------------------------------------------------------------------------
    \23\ Sec. 2, proposed new 28 U.S.C. Sec. 1343(e)(2)(C).
---------------------------------------------------------------------------
    In Congresswoman Lofgren's view, and the view of the 
Committee which adopted her amendment, at least one elected 
body should at the local level review a proposal before a 
federal court reviews it. While the adoption of this amendment 
does not make this bill acceptable to Congresswoman Lofgren or 
the Minority, it is a recognition that local officials, 
especially elected local officials held accountable to 
constituents, are appropriately suited to respond to and pass 
on local land use decisions before a federal court should.
    Still, as reported the legislation continues to represent 
an unwarranted incursion into state and local control of land 
use decisions. If the reported legislation were to become law, 
a developer may apply for a permit to build 800 homes on a 
parcel of land. A zoning official may deny that request, and a 
zoning board may as well. If that zoning board is elected, the 
matter is then ripe for federal district court. Without any 
determination of what would be a permissible use of that land 
short of the denied use, the case would be before a federal 
district court, if the developer believes that to be the more 
favorable forum. What would under current law probably be 
deferred--dismissed or stayed while a state administrative 
agency or court determines a permissible use, if any--would 
under this legislation be reviewed by a federal district court 
which may or may not have any ability to discern whether there 
has been a taking. That is an incursion into the traditional 
powers of states and localities we cannot support.
    It is also important to note that H.R. 1534 does not simply 
alter the procedural question of where and when a land use 
dispute is resolved. There are concerns that the legislation 
could serve to substantively alter the law of takings, imposing 
costly new burdens on State and local governments. For example, 
the bill defines a ``final decision'' for its ripeness and 
abstention provisions to mean ``a definitive decision regarding 
the extent of permissible uses on the property that has been 
allegedly infringed or taken without regard to any uses that 
may be permitted elsewhere.'' \24\ This could require that 
whatever property rights deprivations the bill covers, the 
deprivation must be judged solely with respect to the regulated 
portion, rather than the entire portion. This runs counter to 
well settled takings jurisprudence requiring courts to analyze 
the effect of government action on the relevant parcel as a 
whole. \25\
---------------------------------------------------------------------------
    \24\ Sec. 2, proposed new section 28 U.S.C. Sec. 1343(e)(2)(A) 
(emphasis added).
    \25\ See H.R. 1534, the ``Private Property Rights Implementation 
Act of 1997,'' Hearing Before the Subcomm. on Courts and Intellectual 
Property of the House Judiciary Comm., 105th Cong., 1st Sess (1997) 
(Statement of John C. Dwyer, Acting Associate Attorney General, at 14-
15, citing Concrete Pipe and Products of California, Inc. v. 
Construction Laborers Pension Trust, 508 U.S. 602, 644; Penn Central 
Transportation Co. v. City of New York, 438 U.S. 104, 130-31).
---------------------------------------------------------------------------
2. Undue Imposition on the Federal Judiciary
    In addition, H.R. 1534 would force federal district court 
judges to decide cases before the cases are adequately fleshed 
out. For example, in the takings context, the ripeness doctrine 
assures that a court would have the critical information it 
needs to apply certain takings factors. In particular, if a 
court cannot determine whether the ``economic impact'' and 
``interference with investment-backed expectations' factors set 
forth in Penn Central Transportation Co. v. City of New York 
\26\ are sufficiently severe, it will be difficult to determine 
whether an unconstitutional taking has occurred.
---------------------------------------------------------------------------
    \26\ 438 U.S. 104 (1978).
---------------------------------------------------------------------------
    The bill's limitations on abstention also create new 
burdens on the federal judiciary. For example, the bill creates 
a procedure whereby federal courts certify ``significant but 
unsettled'' questions of state law, they may certify the 
question to the highest appellate court of the State. But not 
all States have adopted such procedures and some states with 
procedures in place will not accept certificates from federal 
district courts. Therefore the bill may have the effect of 
blocking the federal courts from abstaining and forcing them to 
decide significant State law questions themselves.
    In the aggregate, these changes--along with the increased 
absolute number of takings cases likely to end up in federal 
court--will result in a significant increase in the federal 
judicial workload, a particular problem given the high number 
of vacant judgeships and the increasing wholesale 
federalization of other traditional areas of State law (such as 
criminal law enforcement). According to a recent Congressional 
Research Service report on the legislation, ``there is a sound 
argument that H.R. 1534 will result in a significant increase 
in the workload of the federal courts, particularly from 
takings litigation.'' \27\ Moreover, this new burden would come 
at the very time that the federal bench is laboring under the 
weight of some 100 unfilled vacancies. \28\
---------------------------------------------------------------------------
    \27\ CRS Report for Congress, ``Property Rights'' Bills Take a 
Process Approach: H.R. 992 and H.R. 1534, Sept. 22, 1997 (97-877A).
    \28\ Thirty of these vacancies have been pending for more than a 
year and a half. In the first four months of this year, the Senate 
confirmed only four judicial nominees. During the entire previous year 
only 17 district court judges were confirmed, and--for the first time 
in history--not a single appeals court judge was confirmed. This 
situation has resulted in an alarming backlog of over 25,000 civil 
cases, and over 10,000 criminal cases. This backlog would be greatly 
exacerbated by the avalanche of litigation that would be brought if the 
bill becomes law.
---------------------------------------------------------------------------
    The result of the bill is a scheme we would have thought 
untenable to conservative Republicans: the massive transfer of 
power over land use decisions to the federal judiciary. In the 
same Subcommittee of the Judiciary Committee from which H.R. 
1534 was reported, the Majority has convened a hearing (and 
reported out a bill \29\) on Judicial Misconduct/Activism, at 
which federal judges who have allegedly usurped their 
authority, misapplied the law, and legislated from the bench, 
were railed against. It is curious that against this backdrop 
legislation such as H.R. 1534 which greatly increases the 
workload and authority of federal judges would become a high 
legislative priority of the Republican leadership.
---------------------------------------------------------------------------
    \29\ H.R. 1252, 105th Cong., 1st Sess.
---------------------------------------------------------------------------
    Congressman Delahunt of Massachusetts offered an amendment 
which would have delayed the effective date of H.R. 1534 until 
the Judicial Conference of the United States had certified that 
less than 3 percent of all federal judgeships are vacant. The 
purpose of the amendment, as Congressman Delahunt explained, 
was ``to ensure that the depleted ranks of the federal bench 
are restored to their full strength before the courts are asked 
to take on the massive new workload this bill would generate.'' 
\30\ Although the amendment was not agreed to, it illustrated 
the continuing crisis in the federal judiciary that has been 
brought about by the failure of the Senate to confirm judicial 
nominees in a timely way. It also highlighted the irony of 
legislation which would transfer such substantial authority 
from state courts to the very federal judges so often 
criticized by proponents of the bill for their supposed 
``judicial activism.''
---------------------------------------------------------------------------
    \30\ Transcript at 86.
---------------------------------------------------------------------------
3. Failure to Extend the Legislation to Apply to Other Civil Rights 
        Plaintiffs
    As introduced, H.R. 1534 was drafted to apply to all 
property and privilege claims, including all Section 1983 
actions. \31\ Section 1983 was adopted as part of the Civil 
Rights Act of 1871 in the wake of the Reconstruction Amendments 
to the Constitution. Known as the ``Ku Klux Klan Act,'' it was 
specifically designed to halt a wave of lynchings of African-
Americans that had occurred under guise of state and local law. 
The Subcommittee approved an amendment offered by Mr. Gallegly 
which, inter alia, limited the application of the bill to those 
circumstances ``in which the operative facts concern the use of 
real property.'' \32\ Arguing that property claims should not 
be granted a docket preference vis a vis life, liberty and 
other civil rights claims, Representatives Conyers and Jackson 
Lee offered an amendment to strike the limitation adopted in 
Subcommittee. This amendment was defeated by a vote of 7-17.
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    \31\ 42 U.S.C. 1983. Section 1983 was adopted as part of the Civil 
Rights Act of 1871 in the wake of the Reconstruction Amendments to the 
Constitution. Known as the ``Ku Klux Klan Act,'' it was specifically 
designed to halt a wave of lynchings of African-Americans that had 
occurred under guise of state and local law.
    \32\ We say ``intended'' because the goal of the amendment to limit 
the effect of the bill to property rights may or may not have been 
effectuated: while the abstention directive in Sec. 2, proposed new 28 
U.S.C. Sec. 1343(c) is clearly limited to real property, the ripeness 
portions of the bill--Sec. 2, proposed new 28 U.S.C. Sec. 1343(e) and 
Secs. 2 & 3--were not so limited.
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    The effect of the amendment's defeat is to report a bill 
which grants ``affirmative action'' to real property claims. 
Application of abstention and ripeness doctrines to dismiss or 
stay actions in Federal District Court is not limited to real 
property, but H.R. 1534 as reported would limit such 
application only for real property, at least for abstention. 
That is, police brutality claims, conditions in prisons and 
juvenile facilities, and any other civil rights/Section 1983 
claim would continue to face application of abstention 
principles as a bar to immediate review by Federal District 
Courts, but after passage of H.R. 1534, real property claims 
would not. For example, abstention has been held appropriate in 
section 1983 actions involving the Sixth Amendment right to 
counsel, \33\ ``cruel and unusual punishment'' conditions of 
confinement at a juvenile facility, \34\ the denial of Medicaid 
benefits and First Amendment rights, \35\ gender-based 
discrimination \36\ and a parallel state court criminal 
proceeding. \37\ But H.R. 1534 would not alleviate or limit the 
application of the abstention doctrine in these cases.
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    \33\ Mann v. Jett, 781 F.2d 1448 (9th Cir. 1986).
    \34\ Manny v. Cabell, 654 F.2d 1280 (9th Cir. 1980).
    \35\ Winters v. Lavine, 574 F.2d 46 (2d Cir. 1978).
    \36\ Tiger Inn v. Edwards, 636 F. Supp. 787 (D.N.J. 1986).
    \37\ Heck v. Humphrey, 512 U.S. 477 (1994).
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    That literal and symbolic moving to the front of the line 
of real property claims is inappropriate as a matter of court 
administration and public policy. While we all believe that the 
protection of real property is an important part of our 
democracy, there is no defensible reason to place Fifth 
Amendment takings rights above other civil rights in line for 
federal court review.

                    Broad Opposition to Legislation

    The Attorney General would recommend a veto of H.R. 1534 if 
passed in its current form. The Department of Justice wrote a 
strong letter in opposition to this bill, citing particularly 
that the bill will 1) dramatically shift authority to decide 
local issues from state and local to federal courts; 2) allow 
developers and others to sue local officials in federal court 
without adequately seeking to resolve their disputes outside 
the courtroom, thereby reducing the role of local officials in 
local decision making; 3) deem ``ripe'' for adjudication cases 
in which there is an insufficient factual record for decision, 
raising the risk of poorly informed rulings; 4) disrupt the 
administration of vital federal protections; 5) complicate 
judicial application of longstanding precedent under the Just 
Compensation Clause of the Fifth Amendment regarding the 
relevant ``parcel as a whole''; and 6) burden the already 
overcrowded federal docket at the expense of meritorious 
claims. \38\
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    \38\ Letter to Hon. Henry Hyde (Oct. 7, 1997).
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    Importantly, a bipartisan group of 40 Attorneys General (37 
States and 3 Territories/Possessions) signed a letter in 
opposition to this legislation. They wrote, ``H.R. 1534 invades 
the province of state and local governments and directs federal 
judges to intrude into matters pending before state and local 
officials and courts. Not only does the bill catapult many 
state land use decisions into federal court but it also 
authorizes defendants in any type of state or local case, civil 
or criminal, to seek the intervention of a federal judge.'' 
\39\
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    \39\ Letter to Hon. Henry Hyde (Sept. 24, 1997).
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    The Attorneys General are joined in opposition by the 
American Planning Association, the National League of Cities, 
U.S. Conference of Mayors, the National Conference of State 
Legislatures, the International Municipal Lawyers Association, 
and the Judicial Conference of the United States. The League of 
Cities and Conference of Mayors observed that H.R. 1534:

        [w]ould impose severe and unwarranted burdens on 
        America's cities and towns by greatly enhancing the 
        ability of developers and other claimants to sue cities 
        in federal court for alleged ``takings.'' Such a 
        federal action would expose local governments to 
        increased financial liability and interfere with the 
        ability of local governments to make reasonable land 
        use decisions. \40\
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    \40\ Letter to Hon. Henry Hyde (Sept. 24, 1997).

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Similarly, the Judicial Conference noted:

        The bill would alter deeply ingrained federalism 
        principles by prematurely involving the federal courts 
        in property regulatory matters that have historically 
        been processed at the state and local levels. The bill 
        may also adversely affect the administration of justice 
        and delay the resolution of property claims. \41\
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    \41\ Letter to Hon. Henry Hyde (Sept. 29, 1997).

    Other state and local government organizations, including 
the California State Association of Counties and the League of 
California Cities also oppose this bill. In addition, a broad 
array of environmental groups oppose this bill, including the 
National Wildlife Federation, the League of Conservation 
Voters, the Sierra Club, the Center for Marine Conservation, 
the Environmental Defense Fund, the National Audubon Society, 
the National Trust for Historic Preservation, Scenic America, 
the Natural Resources Defense Council, and the Wilderness 
Society.

                               Conclusion

    H.R. 1534 represents a significant windfall to developers, 
and would constitute a major shift in the balance of power 
between municipalities and other land use authorities and 
developers, while significantly eroding local control over land 
use decisions. Although this legislation has been portrayed as 
changing the balance of power between developers and local 
governments, the real shift would be from local neighborhoods 
and homeowners to professional developers. The real purpose of 
zoning regulations is to protect the interest of the individual 
landowner and they would be disadvantaged by this bill. At the 
Committee markup, it became clear that the purpose and 
rationale for the legislation was muddled. Significant 
opposition and major policy issues were raised by Democratic 
and Republican Members alike and the bill was opposed on final 
passage by all Democrats present and voting but one. In 
response, Subcommittee Chairman Coble and bill cosponsor 
Gallegly promised to consider further changes to respond to the 
bill's many flaws prior to floor consideration. The time to 
make these changes is at the Committee level, not behind closed 
doors. The American people deserve a better and more even-
handed approach to the takings issue, and we dissent from this 
legislation.
                                   John Conyers, Jr.
                                   Jerrold Nadler.
                                   Sheila Jackson Lee.
                                   William D. Delahunt.
                                   Martin T. Meehan.
                                   Zoe Lofgren.