Executive Order 12630
(53 FR 8859)
GOVERNMENT 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 taking 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 and 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 May 1, 1988, and shall be
disseminated to all units of each Executive department and agency
no later than July 1, 1988. The Attorney General shall, as necessary,
update these guidelines to reflect fundamental changes in takings
law occurring as a result of Supreme Court decisions.
Section 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 United States or in preparation for or during
treaty negotiations with foreign nations;
(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, of 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 United States or in preparation for or during
treaty negotiations with foreign nations;
(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 of foreign affairs functions
(including procurement functions thereunder), but not including
the U.S. Army Corps of Engineers civil works program.
Section 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 more
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 if 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.
Section 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.
Section 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
May 16, 1988.
(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.
Section 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 United States, its agencies, its
officers, or any person.
RONALD REAGAN
THE WHITE HOUSE
March 15, 1988
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