Mike Crapo

Mr. CRAPO

Mr. CRAPO. Mr. Chairman, will the gentleman yield?

Mr. CRAPO. I thank the gentleman. I would also like to address the committee with the remainder of my time with regard to the amendment that is before us. There has been a lot said about whether 10 or 20 percent is the right level of demarcation in evaluating when compensation should occur. But it is important, and again as the gentleman from Louisiana stated earlier he hopes those listening to this in their offices or elsewhere will pay close attention, because there is a very big difference in this bill in addition to the 10 to 20 percent change that must be understood. This bill also changes the property to which the standard applies from the affected property to all of the property owned by the property owner, and that change is why it dramatically changes the standard, increases the potential for harm to private property owners and increases the potential for private property owners who want to go around the act, to game the act by subdividing their parcels, and so forth. We are going to be following this amendment with another one which does the specific change which seems to be the one which is relied upon so much by the supporters of this amendment, and that is simply changing the figure from 10 to 20 percent in the act, but not changing the entire focus of the act on the affected property, rather than on more broadly other property that is contiguous.

Mr. CRAPO. I appreciate that; and so to emphasize again this is talking about when a person is seeking to use their own private property in a way that could cause damage to someone else's property, and somehow final agency action becomes involved. And in those specific limited circumstances, the act is not intended to apply.

Mr. CRAPO. I thank the gentleman from Louisiana. Yesterday we were pressed for time and we had a short colloquy on a matter I think we need to clarify further. I am referring specifically to section 5 of the legislation that we are discussing, which is entitled exceptions, and it basically states there that compensation will not be made under this act with respect to an agency action, the primary purpose of which is to prevent and identify damage to specific property other than the property whose use is limited. The concern I want to clarify as much as we can here on the record is that this language is not intended to create an exception for compensation when wetlands are being considered by final agency action. My concern is that wetlands could be argued to be referring to specific property other than the property whose use is being limited and I would just, following up on our private conversations, like to make it a matter of record as to what this language is and is not intended to reach.

Mr. CRAPO. Mr. Chairman, I ask the gentleman from Louisiana if he would be willing to engage in a colloquy.

Mr. CRAPO. Mr. Chairman, I move to strike the requisite number of words.

Mr. CRAPO. That is correct. With that clarification, I thank the gentleman.

Mr. CRAPO. I am glad to yield to the gentleman from Louisiana.

Mr. CRAPO

Mr. CRAPO. That is a bigger difference, then, than simply changing the percentage from 10 percent to 20 percent as in the bill.

Mr. CRAPO. Just to follow up on that, Mr. Chairman, if an agency failed to pay a claim and then stated their reason was they did not have money in their claim fund or whatever part of their budget was allocated to payment of claims, as I read the statute, it says that if there are insufficient funds in the agency's budget, that the agent shall transfer or reprogram any appropriated funds available to the agency to accomplish that. So, as I read that, Mr. Chairman, that would mean that in the very next budget cycle, when the agency had a full budget, so to speak, that they would be required to reprogram funds out of their budget to satisfy this obligation, is that correct?

Mr. CRAPO. Mr. Chairman, I thank the gentleman for yielding to me. Mr. Chairman, I would say to the gentleman from Louisiana [Mr. Tauzin], we just got yielded some time. Maybe we can finish that now. Mr. Chairman, the gentleman knows the provisions I am looking at. I am looking at the provisions in sections 6 and 7 that talk about payment. My question is, Mr. Chairman, to the gentleman, are we assured in this statute that an agency must pay compensation when a judgment has been rendered or when a claim has been accomplished under the statute?

Mr. CRAPO. Mr. Chairman, will the gentleman yield?

Mr. CRAPO. Mr. Chairman, will the gentleman yield?

Mr. CRAPO. Mr. Chairman, I would like to ask the gentleman from Louisiana if he would engage with me in a colloquy. Earlier today as we were discussing how this bill operates, the question of whether there is going to be a clear requirement that the agencies pay whatever the level is came up. Section 7 entitled ``Limitations'' basically states that this act will be subject to the availability of appropriations. As I understand it, that means that we are not trying to create an entitlement that runs without the oversight of Congress. The question then comes, does the agency have to pay? I understand that the previous section of the act says the head of the agency may transfer or reprogram appropriated funds, and if insufficient funds exist for payment to satisfy the judgment, it will be the duty of the agency to seek an appropriation.

Mr. CRAPO. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, it is very important for those who are considering this legislation to understand we are not talking about simply the issue of whether to change the percentage from 10 percent to 20 percent in this bill. There is a much more critical change that is being made that was not discussed in the previous bill--it was not understood very well, I think, in the last debate, and I think it has got to be critically understood in this debate. The bill, as it now stands, says that when the Federal Government seeks to regulate property, if they are going to single out a piece of the property and call that piece of the property a wetland or address a specific portion of one's property to cause them to fill Federal requirements in the way they use their property, then it is that property that is singled out, that is looked at to see whether the Federal Government is impacting its value. This amendment would change that and in a dramatic way increase the burden that is faced by the property owner in a way that probably will make it so that the Federal Government does not have to worry about compensating property owners in most of the cases that we deal with because the property that is being impacted would have to be mixed, if my colleagues will, with all of the other property owned by that property owner. That means, just to give my colleagues an example, if a person owned a 100-acre farm, a small farmer owned a 100-acre farm, and the Federal Government came out and said, ``One of the acres on your farm is a wetland, and we're going to require you to stop farming on that 1 acre or require you to do something with that 1 acre,'' even if the Federal Government took the entire acre, this amendment would not allow for compensation to be made because the impact would have to be mixed in with the other 99 acres. In fact, the Federal Government under this amendment could literally take 29 of his entire 100 acres entirely, and he still would not be entitled to any compensation by the Federal Government for that impact on his property. This is a massive change in this legislation. It is not a 10-percent to 20-percent change, and the Members of this House need to understand what is being done here to change the entire direction of this statute. Mr. Chairman, I think it is also important that we remember the reason that we are here tonight. We are not here tonight because there is a concern about big developers. We are not here tonight because we are concerned about big large property owners around the country. Those who are large developers or large property owners can defend themselves very adequately in our current court structure. It is onerous, it is expensive to them, but they have the resources to fight back. It is the rest of America that is being overridden by the Federal regulatory bureaucracy that we are here to try to defend. We are here trying to say that, when the Federal Government comes out to the private property owners in this country and says that they have to use their property in a way that benefits the whole, that there is some social purpose that we are going to say is so important that private property owners have to lose the use of their property or have to be forced to use their property in a certain way, that that social goal should be compensated. We are not talking here so much about whether the Government has the right to take the entire property. We are talking about whether the Government has the right to regulate our property to the point that we cannot use it for the purposes that we intended and then force us not to have to obtain compensation as long as we own enough property that they can mix it in and say they have not taken more than 30 percent of the entire value of what we own. Mr. Chairman, it is critical to us in America that we recognize the importance of protecting this strong statement in favor of private property rights in telling the people of America that we would not water it down to let nearly a third of the value of their entire holdings be taken before we will permit that.

Mr. CRAPO. My question is: Does it apply to the total?

Mr. CRAPO. I thank the gentleman from California. Mr. Chairman, I ask this question of either of the sponsors of the amendment. And I ask those in the Chamber to please listen to the answer to this question because I think it is very important. The question that I have has been discussed by both of the sponsors of the amendment in discussing it that they are changing the percentage from 10 percent to 20 percent. The question I have is: Does it also change--excuse me--from 30 percent to 20 percent.

Mr. CRAPO. Mr. Chairman, will the gentleman yield?

Mr. CRAPO. I yield to the gentleman from Texas.

Mr. CRAPO. I Would yield further.

Mr. CRAPO. I yield to the gentleman from Texas.

Mr. CRAPO. I understand the point. But we still have a difference of opinion on this in terms of whether it is viable, because we have agencies being required it do an analysis but no penalty, no requirement that they are to be reviewed. In fact, under the very amendment we are talking about, there is no judicial review to be sure the agency is conducting the analysis properly. All the agency has to do is conduct an analysis to avoid the problem of compensation. Mr. Chairman, the point I make here is that we have a basic difference in philosophical point of view. There are those who want to say the constitutional protection against a taking, a total taking of the property, is sufficient if we add to it a requirement that the agency study what they are doing, with no requirement that the agency must compensate or that the agency must be subject to review. The basic difference here is this: Our agencies today have shown, and I think here is where the philosophical difference lies, I believe our agencies have shown the American people that they do not give enough consideration to private property rights. There are those who are willing to trust the agency with simply reviewing that issue without requiring that when the agency reaches a conclusion that there is no better way to do this to impact private property, then even in that case, when there has been a review, if society's requirement so deems that that person's property should be diminished in value for society's purposes, then that should be compensated. That is the basic philosophic debate we are having today, and that is why we must not support this amendment.

Mr. CRAPO. Reclaiming my time, I think the gentleman's point about the fifth amendment is correct. Senator Dole clearly said he supports separate legislation that does address compensation. Senator Dole is saying although his initial letter does not address that issue, his sponsorship of two separate pieces of legislation should never be taken to mean that he does not support private property compensation.

Mr. CRAPO. I yield to the gentleman from Illinois.

Mr. CRAPO. I thank the gentleman for that specific example. That is the point. Today we have a Government that does not care enough about private property ownership and protecting that principle in our system of government, and this bill will force it or force them to pay for the social costs of running over those rights. Then there are those who say that the fifth amendment protects our rights adequately, and we do not need to go beyond the constitutional protection. But one of the very speakers in support of this proposed amendment said the Supreme Court has already declared that under the fifth amendment the protection is against a total taking of your property. It goes not against the taking or diminishing in value of the property. As I said earlier today, the Federal regulatory system we have has found out that if they do not take your whole property but just go in and regulate it to the point that you have to do with your own property what they tell you with it, then they can get around the fifth amendment requirement on takings. I think the Founding Fathers of this country would have put something in if they had known what our regulatory system today was trying to do with regard to private property. takings. This statutory protection protects against diminishing in value. Then there are those who say, well, this is just the Dole-Reagan approach. It has been said before, but I want to repeat, that Senator Dole said in a letter that he sent us that this amendment which we are debating here, which is a killer amendment to the legislation we are bringing, does not represent his approach and that he supports the concept of compensation as this bill requires. And the person who sponsored, who drafted the letter----