Executive Order 12630 --
Governmental Actions and Interference With
Constitutionally Protected Property Rights
By
the authority vested in me as President by the Constitution and laws of the
United States of America, and in order to ensure that government actions are
undertaken on a well-reasoned basis with due regard for fiscal accountability,
for the financial impact of the obligations imposed on the Federal government
by the Just Compensation Clause of the Fifth Amendment, and for the
Constitution, it is hereby ordered as follows:
Section 1. Purpose. (a)
The Fifth Amendment of the United States Constitution provides that private
property shall not be taken for public use without just compensation.
Government historically has used the formal exercise of the power of eminent
domain, which provides orderly processes for paying just compensation, to
acquire private property for public use. Recent Supreme Court decisions,
however, in reaffirming the fundamental protection of private property rights
provided by the Fifth Amendment and in assessing the nature of governmental
actions that have an impact on constitutionally protected property rights, have
also reaffirmed that governmental actions that do not formally invoke the
condemnation power, including regulations, may result in a taking for which
just compensation is required.
(b)
Responsible fiscal management and fundamental principles of good government
require that government decision-makers evaluate carefully the effect of their
administrative, regulatory, and legislative actions on constitutionally
protected property rights. Executive departments and agencies should review
their actions carefully to prevent unnecessary takings and should account in
decision-making for those takings that are necessitated by statutory mandate.
(c)
The purpose of this Order is to assist Federal departments and agencies in
undertaking such reviews and in proposing, planning, and implementing actions
with due regard for the constitutional protections provided by the Fifth
Amendment and to reduce the risk of undue or inadvertent burdens on the public fisc resulting from lawful governmental action. In
furtherance of the purpose of this Order, the Attorney General shall,
consistent with the principles stated herein and in consultation with the
Executive departments and agencies, promulgate Guidelines for the Evaluation of
Risk and Avoidance of Unanticipated Takings to which each Executive department
or agency shall refer in making the evaluations required by this Order or in otherwise
taking any action that is the subject of this Order. The Guidelines shall be
promulgated no later than
Sec. 2. Definitions.
For the purpose of this Order: (a) ``Policies that have takings implications''
refers to Federal regulations, proposed Federal regulations, proposed Federal
legislation, comments on proposed Federal legislation, or other Federal policy
statements that, if implemented or enacted, could effect a taking, such as
rules and regulations that propose or implement licensing, permitting, or other
condition requirements or limitations on private property use, or that require
dedications or exactions from owners of private property. ``Policies that have
takings implications'' does not include:
(1)
Actions abolishing regulations, discontinuing governmental programs, or
modifying regulations in a manner that lessens interference with the use of
private property;
(2)
Actions taken with respect to properties held in trust by the
(3)
Law enforcement actions involving seizure, for violations of law, of property
for forfeiture or as evidence in criminal proceedings;
(4)
Studies or similar efforts or planning activities;
(5)
Communications between Federal agencies or departments and State or local
land-use planning agencies regarding planned or proposed State or local actions
regulating private property regardless of whether such communications are
initiated by a Federal agency or department or are undertaken in response to an
invitation by the State or local authority.
(6)
The placement of military facilities or military activities involving the use
of Federal property alone; or
(7)
Any military or foreign affairs functions (including procurement functions thereunder) but not including the U.S. Army Corps of
Engineers civil works program.
(b)
Private property refers to all property protected by the Just Compensation
Clause of the Fifth Amendment.
(c)
``Actions'' refers to proposed Federal regulations, proposed Federal
legislation, comments on proposed Federal legislation, applications of Federal
regulations to specific property, or Federal governmental actions physically
invading or occupying private property, or other policy statements or actions
related to Federal regulation or direct physical invasion or occupancy, but
does not include:
(1)
Actions in which the power of eminent domain is formally exercised;
(2)
Actions taken with respect to properties held in trust by the
(3)
Law enforcement actions involving seizure, for violations of law, of property
for forfeiture or as evidence in criminal proceedings;
(4)
Studies or similar efforts or planning activities;
(5)
Communications between Federal agencies or departments and State or local
land-use planning agencies regarding planned or proposed State or local actions
regulating private property regardless of whether such communications are
initiated by a Federal agency or department or are undertaken in response to an
invitation by the State or local authority;
(6)
The placement of military facilities or military activities involving the use
of Federal property alone; or
(7)
Any military or foreign affairs functions (including procurement functions thereunder), but not including the U.S. Army Corps of
Engineers civil works program.
Sec. 3. General Principles. In formulating or
implementing policies that have takings implications, each Executive department
and agency shall be guided by the following general principles:
(a)
Governmental officials should be sensitive to, anticipate, and account for, the
obligations imposed by the Just Compensation Clause of the Fifth Amendment in
planning and carrying out governmental actions so that they do not result in
the imposition of unanticipated or undue additional burdens on the public fisc.
(b)
Actions undertaken by governmental officials that result in a physical invasion
or occupancy of private property, and regulations imposed on private property
that substantially affect its value or use, may constitute a taking of
property. Further, governmental action may amount to a taking even though the
action results in less than a complete deprivation of all use or value, or of
all separate and distinct interests in the same private property and even if
the action constituting a taking is temporary in nature.
(c)
Government officials whose actions are taken specifically for purposes of
protecting public health and safety are ordinarily given broader latitude by
courts before their actions are considered to be takings. However, the mere
assertion of a public health and safety purpose is insufficient to avoid a
taking. Actions to which this Order applies asserted to be for the protection
of public health and safety, therefore, should be undertaken only in response
to real and substantial threats to public health and safety, be designed to
advance significantly the health and safety purpose, and be no greater than is
necessary to achieve the health and safety purpose.
(d)
While normal governmental processes do not ordinarily effect takings, undue
delays in decision-making during which private property use is interfered with
carry a risk of being held to be takings. Additionally, a delay in processing
may increase significantly the size of compensation due if a taking is later
found to have occurred.
(e)
The Just Compensation Clause is self-actuating, requiring that compensation be
paid whenever governmental action results in a taking of private property
regardless of whether the underlying authority for the action contemplated a
taking or authorized the payment of compensation. Accordingly, governmental
actions that may have a significant impact on the use or value of private
property should be scrutinized to avoid undue or unplanned burdens on the
public fisc.
Sec. 4. Department and Agency
Action. In addition to the fundamental principles set forth in Section
3, Executive departments and agencies shall adhere, to the extent permitted by
law, to the following criteria when implementing policies that have takings
implications:
(a)
When an Executive department or agency requires a private party to obtain a
permit in order to undertake a specific use of, or action with respect to,
private property, any conditions imposed on the granting of a permit shall:
(1)
Serve the same purpose that would have been served by a prohibition of the use
or action; and
(2)
Substantially advance that purpose.
(b)
When a proposed action would place a restriction on a use of private property,
the restriction imposed on the use shall not be disproportionate to the extent
to which the use contributes to the overall problem that the restriction is
imposed to redress.
(c)
When a proposed action involves a permitting process or any other
decision-making process that will interfere with, or otherwise prohibit, the
use of private property pending the completion of the process, the duration of
the process shall be kept to the minimum necessary.
(d)
Before undertaking any proposed action regulating private property use for the
protection of public health or safety, the Executive department or agency
involved shall, in internal deliberative documents and any submissions to the
Director of the Office of Management and Budget that are required:
(1)
Identify clearly, with as much specificity as possible, the public health or
safety risk created by the private property use that is the subject of the
proposed action;
(2)
Establish that such proposed action substantially
advances the purpose of protecting public health and safety against the
specifically identified risk;
(3)
Establish to the extent possible that the restrictions imposed on the private
property are not disproportionate to the extent to which the use contributes to
the overall risk; and
(4)
Estimate, to the extent possible, the potential cost to the government in the
event that a court later determines that the action constituted a taking.
In
instances in which there is an immediate threat to health and safety that
constitutes an emergency requiring immediate response, this analysis may be
done upon completion of the emergency action.
Sec. 5. Executive Department
and Agency Implementation. (a) The head of each executive department and
agency shall designate an official to be responsible for ensuring compliance
with this Order with respect to the actions of that department or agency.
(b)
Executive departments and agencies shall, to the extent permitted by law,
identify the takings implications of proposed regulatory actions and address
the merits of those actions in light of the identified takings implications, if
any, in all required submissions made to the Office of Management and Budget.
Significant takings implications should also be identified and discussed in
notices of proposed rule-making and messages transmitting legislative proposals
to the Congress, stating the departments' and agencies' conclusions on the
takings issues.
(c)
Executive departments and agencies shall identify each existing Federal rule
and regulation against which a takings award has been made or against which a
takings claim is pending including the amount of each claim or award. A
``takings'' award has been made or a ``takings'' claim pending if the award was
made, or the pending claim brought, pursuant to the Just Compensation Clause of
the Fifth Amendment. An itemized compilation of all such awards made in Fiscal
Years 1985, 1986, and 1987 and all such pending claims shall be submitted to
the Director, Office of Management and Budget, on or before
(d)
Each Executive department and agency shall submit annually to the Director,
Office of Management and Budget, and to the Attorney General an itemized
compilation of all awards of just compensation entered against the United
States for takings, including awards of interest as well as monies paid
pursuant to the provisions of the Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970, 42 U.S.C. 4601.
(e)(1)
The Director, Office of Management and Budget, and the Attorney General shall
each, to the extent permitted by law, take action to ensure that the policies
of the Executive departments and agencies are consistent with the principles,
criteria, and requirements stated in Sections 1 through 5 of this Order, and
the Office of Management and Budget shall take action to ensure that all
takings awards levied against agencies are properly accounted for in agency
budget submissions.
(2)
In addition to the guidelines required by Section 1 of this Order, the Attorney
General shall, in consultation with each Executive department and agency to
which this Order applies, promulgate such supplemental guidelines as may be
appropriate to the specific obligations of that department
or agency.
Sec. 6. Judicial Review.
This Order is intended only to improve the Internal
management of the Executive branch and is not intended to create any right or
benefit, substantive or procedural, enforceable at law by a party against the
Ronald
Reagan
The
White House,
[Filed with the Office of the Federal Register,
Note: The Executive
order was released by the Office of the Press Secretary on March 16.