A bill to amend the Endangered Species Act of 1973 to establish a procedure for approval of certain settlements.

II 116TH CONGRESS 1ST SESSION S. 1426 To amend the Endangered Species Act of 1973 to establish a procedure for approval of certain settlements. IN THE SENATE OF THE UNITED STATES MAY 13, 2019 Mr. CORNYN (for himself, Mr. BOOZMAN, Mr. CRAPO, Mr. CRUZ, Mr. ENZI, Mr. LANKFORD, Mr. RISCH, Mr. SULLIVAN, and Mr. WICKER) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To amend the Endangered Species Act of 1973 to establish a procedure for approval of certain settlements. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. DEFINITIONS. 3 Section 3 of the Endangered Species Act of 1973 (16 4 U.S.C. 1532) is amended— 5 (1) by redesignating— 6 (A) paragraphs (12) through (21) as para- 7 graphs (13) through (22), respectively; 8 VerDate Sep 11 2014 19:09 May 21, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1426.IS S1426 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 1426 IS (B) paragraphs (5) through (10) as para- 1 graphs (7) through (12), respectively; and 2 (C) paragraphs (1) through (4) as para- 3 graphs (2) through (5), respectively; 4 (2) by inserting before paragraph (2) (as so re- 5 designated) the following: 6 ‘‘(1) AFFECTED PARTY.—The term ‘affected 7 party’ means any person, including a business enti- 8 ty, or any State, Tribal government, or local subdivi- 9 sion the rights of which may be affected by a deter- 10 mination made under section 4(a) in a suit brought 11 under section 11(g)(1)(C).’’; and 12 (3) by inserting after paragraph (5) (as so re- 13 designated) the following: 14 ‘‘(6) COVERED SETTLEMENT.—The term ‘cov- 15 ered settlement’ means a consent decree or a settle- 16 ment agreement in an action brought under section 17 11(g)(1)(C).’’. 18 SEC. 2. INTERVENTION; APPROVAL OF COVERED SETTLE- 19 MENT. 20 Section 11(g) of the Endangered Species Act of 1973 21 (16 U.S.C. 1540(g)) is amended— 22 (1) in paragraph (3), by adding at the end the 23 following: 24 VerDate Sep 11 2014 19:09 May 21, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1426.IS S1426 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 1426 IS ‘‘(C) PUBLISHING COMPLAINT; INTERVEN- 1 TION.— 2 ‘‘(i) PUBLISHING COMPLAINT.— 3 ‘‘(I) IN GENERAL.—Not later 4 than 30 days after the date on which 5 the plaintiff serves the defendant with 6 the complaint in an action brought 7 under paragraph (1)(C) in accordance 8 with Rule 4 of the Federal Rules of 9 Civil Procedure, the Secretary of the 10 Interior shall publish the complaint in 11 a readily accessible manner, including 12 electronically. 13 ‘‘(II) FAILURE TO MEET DEAD- 14 LINE.—The failure of the Secretary to 15 meet the 30-day deadline described in 16 subclause (I) shall not be the basis for 17 an action under paragraph (1)(C). 18 ‘‘(ii) INTERVENTION.— 19 ‘‘(I) IN GENERAL.—After the end 20 of the 30-day period described in 21 clause (i), each affected party shall be 22 given a reasonable opportunity to 23 move to intervene in the action de- 24 scribed in clause (i), until the end of 25 VerDate Sep 11 2014 19:09 May 21, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1426.IS S1426 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 1426 IS which a party may not file a motion 1 for a consent decree or to dismiss the 2 case pursuant to a settlement agree- 3 ment. 4 ‘‘(II) REBUTTABLE PRESUMP- 5 TION.—In considering a motion to in- 6 tervene by any affected party, the 7 court shall presume, subject to rebut- 8 tal, that the interests of that party 9 would not be represented adequately 10 by the parties to the action described 11 in clause (i). 12 ‘‘(III) REFERRAL TO ALTER- 13 NATIVE DISPUTE RESOLUTION.— 14 ‘‘(aa) IN GENERAL.—If the 15 court grants a motion to inter- 16 vene in the action, the court shall 17 refer the action to facilitate set- 18 tlement discussions to— 19 ‘‘(AA) the mediation 20 program of the court; or 21 ‘‘(BB) a magistrate 22 judge. 23 ‘‘(bb) PARTIES INCLUDED IN 24 SETTLEMENT DISCUSSIONS.— 25 VerDate Sep 11 2014 19:09 May 21, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1426.IS S1426 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 1426 IS The settlement discussions de- 1 scribed in item (aa) shall include 2 each— 3 ‘‘(AA) plaintiff; 4 ‘‘(BB) defendant agen- 5 cy; and 6 ‘‘(CC) intervenor.’’; 7 (2) by striking paragraph (4) and inserting the 8 following: 9 ‘‘(4) LITIGATION COSTS.— 10 ‘‘(A) IN GENERAL.—Except as provided in 11 subparagraph (B), the court, in issuing any 12 final order in any suit brought under paragraph 13 (1), may award costs of litigation (including 14 reasonable attorney and expert witness fees) to 15 any party, whenever the court determines such 16 award is appropriate. 17 ‘‘(B) COVERED SETTLEMENT.— 18 ‘‘(i) CONSENT DECREES.—The court 19 shall not award costs of litigation in any 20 proposed covered settlement that is a con- 21 sent decree. 22 ‘‘(ii) OTHER COVERED SETTLE- 23 MENTS.— 24 VerDate Sep 11 2014 19:09 May 21, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1426.IS S1426 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 1426 IS ‘‘(I) IN GENERAL.—For a pro- 1 posed covered settlement other than a 2 consent decree, the court shall ensure 3 that the covered settlement does not 4 include payment to any plaintiff for 5 the costs of litigation. 6 ‘‘(II) MOTIONS.—The court shall 7 not grant any motion, including a mo- 8 tion to dismiss, based on the proposed 9 covered settlement described in sub- 10 clause (I) if the covered settlement in- 11 cludes payment to any plaintiff for the 12 costs of litigation.’’; and 13 (3) by adding at the end the following: 14 ‘‘(6) APPROVAL OF COVERED SETTLEMENT.— 15 ‘‘(A) DEFINITION OF SPECIES.—In this 16 paragraph, the term ‘species’ means a species 17 that is the subject of an action brought under 18 paragraph (1)(C). 19 ‘‘(B) IN GENERAL.— 20 ‘‘(i) CONSENT DECREES.—The court 21 shall not approve a proposed covered set- 22 tlement that is a consent decree unless 23 each State and county in which the Sec- 24 VerDate Sep 11 2014 19:09 May 21, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1426.IS S1426 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 1426 IS retary of the Interior believes a species oc- 1 curs approves the covered settlement. 2 ‘‘(ii) OTHER COVERED SETTLE- 3 MENTS.— 4 ‘‘(I) IN GENERAL.—For a pro- 5 posed covered settlement other than a 6 consent decree, the court shall ensure 7 that the covered settlement is ap- 8 proved by each State and county in 9 which the Secretary of the Interior be- 10 lieves a species occurs. 11 ‘‘(II) MOTIONS.—The court shall 12 not grant any motion, including a mo- 13 tion to dismiss, based on the proposed 14 covered settlement described in sub- 15 clause (I) unless the covered settle- 16 ment is approved by each State and 17 county in which the Secretary of the 18 Interior believes a species occurs. 19 ‘‘(C) NOTICE.— 20 ‘‘(i) IN GENERAL.—The Secretary of 21 the Interior shall provide each State and 22 county in which the Secretary of the Inte- 23 rior believes a species occurs notice of a 24 proposed covered settlement. 25 VerDate Sep 11 2014 19:09 May 21, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1426.IS S1426 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 1426 IS ‘‘(ii) DETERMINATION OF RELEVANT 1 STATES AND COUNTIES.—The defendant in 2 a covered settlement shall consult with 3 each State described in clause (i) to deter- 4 mine each county in which the Secretary of 5 the Interior believes a species occurs. 6 ‘‘(D) FAILURE TO RESPOND.—The court 7 may approve a covered settlement or grant a 8 motion described in subparagraph (B)(ii)(II) if, 9 not later than 45 days after the date on which 10 a State or county is notified under subpara- 11 graph (C)— 12 ‘‘(i)(I) a State or county fails to re- 13 spond; and 14 ‘‘(II) of the States or counties that re- 15 spond, each State or county approves the 16 covered settlement; or 17 ‘‘(ii) all of the States and counties fail 18 to respond. 19 ‘‘(E) PROOF OF APPROVAL.—The defend- 20 ant in a covered settlement shall prove any 21 State or county approval described in this para- 22 graph in a form— 23 ‘‘(i) acceptable to the State or county, 24 as applicable; and 25 VerDate Sep 11 2014 19:09 May 21, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1426.IS S1426 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 1426 IS ‘‘(ii) signed by the State or county of- 1 ficial authorized to approve the covered 2 settlement.’’. 3 Æ VerDate Sep 11 2014 19:09 May 21, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\S1426.IS S1426 pamtmann on DSKBFK8HB2PROD with BILLS