Retaking the Fifth

Michael W. Lynch from the December 1997 issue

Property rights activists have long complained that before an individual can seek redress in federal court for alleged government takings of property, the case must be "ripe." This means the person suing the government must first exhaust all "administrative remedies," which often entails getting around a series of inventive obstructions placed by recalcitrant bureaucrats.

But Congress may soon make life easier for property owners. Rep. Elton Gallegly (R-Calif.) has introduced the Private Property Rights Implementation Act (H.R. 1535), which has 233 co-sponsors. And Sens. Paul Coverdell (R-Ga.) and Mary Landrieu (D-La.) have introduced the Property Owners Access to Justice Act of 1997 (S. 1204), which is co-sponsored by Senate Judiciary Committee Chairman Orrin Hatch (R-Utah) and Sen. Byron Dorgan (D-N.D.).

These bills would change the Federal Rules of Civil Procedure. An individual would be able to bring a claim under the Fifth Amendment in federal court after an agency denied an application for the legitimate use of his property and rejected his first appeal.

Gallegly's bill passed the House Judiciary Committee's Subcommittee on Courts and Intellectual Property by a 7-to-4 vote on September 30. The full committee was expected to vote on the bill in October. Hearings for the Coverdell-Landrieu bill are expected sometime this fall.

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