Billy Tauzin

Mr. TAUZIN

Mr. TAUZIN. If the gentleman will continue to yield, that is correct, Mr. Chairman. If the gentleman reads the language, it says that the primary purpose of the agency regulations denying the activity was in fact to prevent harm to someone else.

Mr. TAUZIN. I suspect an agency might try, but the law says they cannot, and I suspect that a lawsuit would lie against them for mandamus by some citizens, or perhaps even this Congress might want to do something with an agency that wants to violate the law every year.

Mr. TAUZIN. Mr. Chairman, if the gentleman will continue to yield, as I understand that obligation, it would become the first obligation of the agency in the next fiscal year, and they would be obligated to reprogram money to do that.

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

Mr. TAUZIN. I thank the gentleman for yielding, and I thank him for taking time that I might jump in here. The gentleman is abundantly correct. Property owners are being described derogatorily tonight in this amendment debate as developers. Mr. Bowles in Texas was not a developer. All he wanted to do was build his house, and that was the filling of the wetland that was denied jim, just to build his house next to his neighbors. That was the so-called filling of wetlands that became a deniable permit application that caused Mr. Bowles to spend 10 years in court. He loses under this amendment. He never gets compensated. Let me tell Members what the court said on that subject matter, again in Florida Rock. This is the Court of Claims: It is impossible to use one's property in a society without having some impact positive or adverse on others. Courts do not view the public's interest in environmental and aesthetic values as a servitude upon all private property but as a public benefit that is widely shared and therefore must be paid for by all. The court cited a list of other laws passed by this Congress in years past, environmental laws where Congress specified some sort of compensation. For example, the Wilderness Act, the National Trails Systems Act, the Wild and Scenic Rivers Act, and the Water Back Act. What the court said there, I tell the gentleman from Texas [Mr. Fields], was that what these regulatory schemes have in common is that in each case, the propertyowner's interest has been considered and accommodated, not sacrificed on the altar of a public interest. What you do when you adopt this amendment is you tell Mr. Bowles, who is not a developer, you tell the farmer I talked about earlier who is not a developer, you tell the Cachoneses and the Gautreauxs in Ascension Parish who are not developers, who are homeowners, you tell them that they cannot get recovery because of this little quirk that was adopted on the House property, building on it has any significant, insignificant even, impact upon their neighbors, they cannot recover under the fifth amendment their legitimate compensation rights.

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

Mr. TAUZIN. Mr. Chairman, if the purpose of the government's action in for the rest of us, is not really to protect endangered species for all the rest of us, but if the purpose is to deny your right to damage your neighbor, that is already in the bill as an exception to compensation. You do not need this amendment. This amendment will deny legitimate claims for de minimus effects on neighbors. It is not the right thing to do. We ought to defeat it.

Mr. TAUZIN. Let me reclaim my time, Mr. Chairman, and quote from the Court of Claims in the Florida Rock decision, again: ``Government may not circumvent the takings clause by defining an activity as pollution and rendering it noxious by fiat.'' It said in Florida Rock that you cannot get away with that anymore. You cannot tell people in America they cannot farm their land, they cannot build houses on their land, because you consider it pollution. The court says that protecting wetlands is not protecting against pollution, necessarily. It said in that case, Mr. Chairman, that protecting wetlands for the good of all Americans, which is a good and worthwhile goal, is a public responsibility, not the responsibility of the few landowners in America who happen to own the wetlands. If we want to protect the wetlands against uses that Mr. Bowles would like to put his lot to in the subdivision of Bresoria County, when all his neighbors built houses, if we want to prevent him from doing that in the guise of protecting wetlands, then we need to pay for that policy, not Mr. Bowles. The reason Mr. Bowles would lose his case under this amendment is that his two neighbors would suffer when he built his house. Both neighbors would lose some right of view. Their property would be affected by the fact that another residence is close to it. Under this amendment, there is no test for the diminution of value of the adjacent property owner. Any diminution of value, however significant, is enough to trigger the denial of the property owner's claim for compensation under this act. In other words, if Mr. Bowles, who fought for 10 years for compensation, should now be faced with this act as amended by my friend, the gentleman from Oregon, what he would find is that the court would say ``Sorry, the Congress said that because your house now obstructs the view of your neighbor's, it has diminished their value to some extent. We are not authorized to provide compensation for you under the private property rights bill passed by the Congress in 1995,'' and so it would be for many other claimants. Claimants who perhaps have very large claims against the government for taking their property would find that those very large claims are lost because of some very small, diminutive, insignificant, almost, diminution of some neighbor's property. The current bill provides for remedies. It currently says that even though you have a wetlands claim against the Federal Government under this bill, if the action, the activity you want to undertake is forbidden by a legitimate zoning law on the local level, you will not get compensated. It presently provides that if the activity you are interested in is prohibited by a nuisance law in your State, such as flooding your neighbor, dumping, indeed, pollutants or toxins on your neighbor, if you intend to do that, or if your activity would do that, that you will not receive compensation.

Mr. TAUZIN. I am happy to yield to the gentleman from Maryland.

Mr. TAUZIN. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, I rise in opposition to the amendment. If this amendment passes, if it becomes part of this bill and it becomes law, the gentleman we began this debate discussing, Mr. Bowles in Texas, will lose his case. It took him 10 years to get the claims court to say that the Federal Government took his property when it said he could not build his house. All he wants to do is build a house on a subdivision lot next to two neighbors who have houses on their subdivision lot. The gentleman from Maryland [Mr. Gilchrest] needs to pay, I hope, some attention to this. Mr. Bowles is not asking to pollute anybody. To use his property to build a house is not pollution, and to associate all the legitimate uses people put their property to pollution is something the courts have refused to do.

Mr. TAUZIN. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman and members of the committee, the courts have struggled very greatly with this question of partial takings. The most definitive statement occurs in the case of Florida Rock. I have quoted it several times here. Florida Rock was on a third trip to the circuit court of appeals. It started in 1979. It still had not been finished. But in the lastest expression, the court said that nothing in the language of the fifth amendment compels the court to find taking only when the Government divests the total ownership of the property. The fifth amendment prohibits the uncompensated taking of private property without reference to the owner's remaining property interests. It went on to talk about the Supreme Court decision in Lucas, a wetlands case decided by the Supreme Court in which Mr. Lucas was ordered to be compensated for the value of his beachfront lot that had been regulated, and in that case by a State action. The court said that in Lucas the Supreme Court touched upon the question, but concluded that the facts before it did not call the question to order, because the State of South Carolina had conceded that they took all the value from this man's land. The court found a categorical taking, and thus did not have to decide the partial-taking question. They went on in Florida Rock to say the following, Justice Stevens, writing separately, criticized as arbitrary the notion a landowner whose property is diminished at 95 percent should recover nothing, where an owner whose property is diminished a hundred percent should recover the land's full value. Justice Scalia also wrote saying that the analysis errs in the assumption the landowner whose depravation is one step short of complete is not entitled to compensation. The Supreme Court clearly has not yet dealt with this difficult area, but the Florida Rock case did. It said no such conceptual problem exists when the taking is by physical occupation. If an owner of a property owns a 100-acre tract, for example, and the Government shows up and takes 95 acres for a public park, no one would argue that the 5 acres remaining somehow precludes the property owner from claiming entitlement to just compensation to say, and listen to this carefully, indeed, if the Government took just 5 acres and left the property owner with 95, there would be no question that the owner was entitled to compensation for the parcel that was taken, with severance damages even attributable to the remaining tract. In short, the court said a taking as low as 5 percent is compensable under the fifth amendment to the Constitution. Indeed, if the Government showed up tomorrow on your property or mine and said that it wanted one of our acres, a half of our acres to build a road, would it matter how big an acreage we have? We would get compensated under the condemnation proceedings, and we should under the fifth amendment. And so the court in Florida Rock made it clear partial takings of some percent of your value are, indeed, compensable. Now, what is the gentleman from Florida offering? He is offering a 30 percent threshold, and he does not apply it to the parcel that is affected by the regulation. It is now 30 percent of the whole of the property, pretty much like the original bill that was filed that said 10 percent of the whole of the property. What is wrong with that? Well, can you imagine the gaming that is going to occur under such an amendment? Thirty percent of what whole? How many acres? If I have got a hundred acres today and I have only got 5 acres taken, can I sell part of my acreage away and qualify? Can I give some of it to my brother-in-law and let him file the claim? Can we do some kind of, you know, sweetheart deal with a counter letter that says I really have not sold it, just to qualify of the 30 percent figure? You see, 30 percent of a whole opens it up to all kinds of gaming. Ten percent of the whole would have done the same thing. Thirty percent threshold, if I read Florida Rock, is awfully high, but more importantly, 30 percent of a whole just does not work. As much as I know my friend just wants to raise the threshold, when he applied the threshold to the whole of the property, he created a mess. He created a situation where every landowner can game the system away, and we will be in court interminably arguing whether somebody is trying to defraud the government by gaming the system, claiming they own less than the whole of their property.

Mr. TAUZIN. I suppose if Alan Greenspan ever did us a favor in this country and lowered interest rates, that would be an agency action that enhanced our values, but I am telling you we cannot count all of these things in America at these arbitration proceedings and if the gentlewoman insists on doing that she kills this bill.

Mr. TAUZIN. Why is it not as broad as I have defined it? Would the gentlewoman tell me why the amendment which says any agency actions which have affected the property is not as broad as I have described it?

Mr. TAUZIN. I yield to my friend, the gentlewoman from Colorado.

Mr. TAUZIN. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, I think it is very important that the membership committee clearly understand what this amendment does and what it does not do. This amendment does not say that you take into account all of the pluses and minuses of the Government agency's action that is in question, reducing the use or the value, or changing the use of your property. This amendment does not say that you weigh those pluses and minuses; the bill already does that. It says you look at the value of the property before and you look at the value of the property after. If the agency action has helped to increase the value and also decreased it in some way, those are going to be balanced out by the appraisal and the arbitration process, and you are going to get a commensurate measuring, a balancing of the positive and the negative effects of that agency's action on your property. That is already in the bill. And so that is a concern you do not need to pass an amendment to do it, it is already in the bill. Let us talk about what this amendment does do. This amendment requires the arbitration panel, the agency, to look at every single agency action in America that may have some impact on your property and may have helped its value out some time or other. and elaborate analysis of all Government agency actions ever done in the history of this country on your single piece of property. It is going to have to find out, for example, whether all of the roads built in America have enhanced the value of your particular piece of property; it is going to have to look at all of the harbors that were built, all of the drainage, all the levees, all the drainage, all of the public works that were accomplished in the history of this republic. It is going to have to look at how much we spent on defense because defending your property is certainly a Government action that enhances its value. I mean this will be the most expensive, extensive review ever in the history of this country. If this bill did not have in it, if it did not have in it provisions to make sure that when the appraisers look at the value of your property before and after their action, that you literally shake out the pluses and minuses and compensate for the difference, then maybe we would need that kind of amendment to do that, but it is already in the bill. This amendment is clever; this amendment is absolutely devious. This amendment literally has the effect of saying that homeowners, property owners, farmers, ranchers, people on forestry land, anyone who might otherwise have a claim for a government taking is going to be defeated in that claim, because when this amendment gets through adding up all of the things that the Government has ever done in the history of this country in government action that may have enhanced the economic life of our country and thereby enhanced the value of our oaths properties. By the way, all of the things which are paid for already, some of which we borrowed money to pay for, and are still paying at great interest rates with those borrowed funds, when it gets through doing all of that, let me tell you, you will have become so old, and your children will have become so old, your grandchildren will become so old that by the time you get the award, if you get any, the interest on that award will be astounding. I suggest this is a clearer but a killer amendment. It ought to be defeated.

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

Mr. TAUZIN. Reclaiming my time, Mr. Chairman, I say to the gentleman [Mr. Porter] under our amendment you deal with the agency at home just as the Gautreaus did, and, when the agency at home tells you that you can't use your property, you have to take your lane down, you have to destroy the house you built and bought, if you have to do all of that, you go to that agency, and you say, All right, if my property is so important for the rest of you in America to take it from me, which you have a right to do under wetlands protection, under--'' let me finish-- under endangered species protection, then let's go to arbitration and find out how much you've cost me and the arbitrator then takes account of what the appraised value of Mr. Gautreau's home was and the appraised value of the home across the street, the Chaconases', and they calculate the appraised value before the regulators came to visit him, they calculate the appraised value after they have been told to take it down, and then they get paid----.

Mr. TAUZIN. Thank you, sir.

Mr. TAUZIN. If the gentleman will continue to yield, the gentleman made the point that this is some kind of radical departure from the jurisprudence. A court in Florida Rock said, Nothing in the language of the fifth amendment compels a court to find a taking only when the government divests the total ownership of the property. The fifth amendment prohibits the uncompensated taking of private property without reference to the owner's remaining property interest. In short, any partial taking that is compensable is a taking under the Constitution, is compensable yesterday, today, tomorrow. We are simply providing a new remedy, and I thank the gentleman for yielding.

Mr. TAUZIN. If the gentleman will continue to yield, that is not so. The fact is that these regulations, these laws that are already on the books are going to continue to impede the use of property tomorrow and the next day. The right to seek compensation is already there; it is in the Constitution. All we are doing is creating a new remedy so that as these restrictions are applied to property from here on out, those new remedies become available but the right is a constitutional right and exists before we pass this bill.

Mr. TAUZIN. Mr. Chairman, I thank the gentleman for yielding. The gentleman makes the point that this gentleman said the bill was prospective; indeed it is. It is a new remedy for an old right and the new remedy is prospective, it starts as soon as this bill becomes law.

Mr. TAUZIN. Mr. Chairman, will the gentleman yield? Mr. Farr. I yield to the gentleman from Louisiana.

Mr. TAUZIN. That was an excellent discussion of how this bill does not have to cost money if the agencies start being responsible. I want to give you a similar example. Mr. Spiller of Lake Fausse Point in Iberia Parish, LA, built a crawfish pond on his property, 80 acres. He was then told he did not apply for a 404 permit. He was told you need a 404 permit to do that. It is a wetlands. He said, well, of course it is a wetland; I want to raise crawfish. They said well, you still need a 404 permit, so he went and applied for a 404 permit. In the meantime EPA issued a cease and desist order and told him to take down the 35,000 dollars' worth of levees he had built in order to raise the crawfish, and that would cost another $4,000. He had to do that. It cost him $40,000 for nothing. And then he filed for his permit and EPA objected. Do you know why he was denied his permit to raise crawfish on that property? Because EPA decided and found that it was a natural habitat for red swamp crawfish. He was told he could not raise crawfish on the property because the crawfish were there already. I mean we get those crazy kinds of applications of the law, and the crawfish, you know, is not like the bald eagle, it is not likely endangered except by Cajuns like me and Mr. Hayes. It is fairly well prominent in Louisiana. And I thank the gentleman for his comments.

Mr. TAUZIN. I want to thank the gentleman for his excellent statement, particularly reminding us how important private property rights and ownership are to the exercise of liberties and freedoms in our society. It is the cornerstone of the free enterprise system. Other countries who have gone through the awful experience of communism only to return to that system must be watching us with some humor to see people fighting the very rights that have made us special and different and emulated around the world. I want to point out what the court, said, our Supreme Court said in Doland versus the City of Tigard: We see no reason why the takings clause of the fifth amendment, as much a part of the Bill of Rights as the first amendment or the fourth amendment, should be relegated to the status of a poor relation in these comparable circumstances. In short it is as special, as sacred to our institutions of liberty as free speech, right of assembly, practice of religion, all the basic rights of our Bill of Rights. Second, to point out that we are not creating this right on this floor today. It is a right inherent in our Constitution. We are not creating an obligation of this Nation to compensate. That is a right inherent in our Constitution. All we are doing is saying that small individual landowners who cannot come to this Federal Court in Washington, DC, and spend 10 years of their lives and $500,000 of court costs and attorneys fees, who cannot do what big landowners are doing today, ought to have the same right to protections under that Constitution as those folks who can come to the court here in DC. By golly, if we don't do that, we sacrifice an enormous part of that special package of Bill of Rights that our Founders knew were special and we have found out over generations makes us special, makes our country a great place to be. In fact, the place where most people would like to be. I thank the gentleman for yielding.

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