Refuge System Protection Act

II 116TH CONGRESS 1ST SESSION S. 1899 To authorize the United States Fish and Wildlife Service to seek compensa- tion for injuries to trust resources and to use funds received as that compensation to restore, replace, or acquire equivalent resources, and for other purposes. IN THE SENATE OF THE UNITED STATES JUNE 19, 2019 Mr. CARDIN (for himself and Mr. GARDNER) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To authorize the United States Fish and Wildlife Service to seek compensation for injuries to trust resources and to use funds received as that compensation to restore, replace, or acquire equivalent resources, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Refuge System Protec- 4 tion Act’’. 5 SEC. 2. DEFINITIONS. 6 In this Act: 7 VerDate Sep 11 2014 02:02 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1899.IS S1899 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 1899 IS (1) DAMAGES.—The term ‘‘damages’’ in- 1 cludes— 2 (A) compensation for— 3 (i)(I) the cost of replacing, restoring, 4 or acquiring the equivalent of a system re- 5 source; and 6 (II) the value of any significant loss of 7 use of a system resource, pending— 8 (aa) restoration or replacement 9 of the system resource; or 10 (bb) the acquisition of an equiva- 11 lent resource; or 12 (ii) the value of a system resource, if 13 the system resource cannot be replaced or 14 restored; and 15 (B) the cost of any relevant damage as- 16 sessment carried out pursuant to section 4(c). 17 (2) RESPONSE COST.—The term ‘‘response 18 cost’’ means the cost of any action carried out by 19 the Secretary— 20 (A) to prevent, minimize, or abate the de- 21 struction or loss of, or injury to, a system re- 22 source; 23 VerDate Sep 11 2014 02:02 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1899.IS S1899 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 1899 IS (B) to abate or minimize the imminent risk 1 of any destruction, loss, or injury described in 2 subparagraph (A); or 3 (C) to monitor the ongoing effects of any 4 incident causing any destruction, loss, or injury 5 described in subparagraph (A). 6 (3) SECRETARY.—The term ‘‘Secretary’’ means 7 the Secretary of the Interior. 8 (4) SYSTEM RESOURCE.—The term ‘‘system re- 9 source’’ means any living, nonliving, historical, cul- 10 tural, or archeological resource that is located within 11 the boundaries of— 12 (A) a unit of the National Wildlife Refuge 13 System; 14 (B) a unit of the National Fish Hatchery 15 System; or 16 (C) any other land or water managed by 17 the Director of the United States Fish and 18 Wildlife Service, including any land or water 19 managed cooperatively with any other Federal 20 or State agency. 21 SEC. 3. ACTIONS. 22 (a) IN GENERAL.—The Attorney General, on request 23 of the Secretary, may bring in the district court of the 24 United States of appropriate jurisdiction— 25 VerDate Sep 11 2014 02:02 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1899.IS S1899 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 1899 IS (1) a civil action against any individual or enti- 1 ty that— 2 (A) destroys, causes the loss of, or injures 3 any system resource; or 4 (B) causes the Secretary to carry out any 5 action to prevent, minimize, or abate the de- 6 struction or loss of, or injury or risk to, any 7 system resource; or 8 (2) an in rem action against any instrumen- 9 tality (including a vessel, vehicle, aircraft, or other 10 equipment or mechanism) that— 11 (A) destroys, causes the loss of, or injures 12 any system resource; or 13 (B) causes the Secretary to carry out any 14 action to prevent, minimize, or abate destruc- 15 tion or loss of, or injury or risk to, a system re- 16 source. 17 (b) AFFIRMATIVE DEFENSES.—It shall be an affirm- 18 ative defense in an action under subsection (a) that— 19 (1) the applicable destruction or loss of, or in- 20 jury to, the system resource was caused by an other- 21 wise legal act or omission that occurred outside of 22 the boundaries of the system resource; 23 (2) the applicable destruction or loss of, or in- 24 jury to, the system resource was caused by an activ- 25 VerDate Sep 11 2014 02:02 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1899.IS S1899 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 1899 IS ity performed in accordance with Federal, State, or 1 local law, regulation, or court order; 2 (3) the applicable destruction or loss of, or in- 3 jury to, the system resource was caused solely by an 4 act of God or an act of war; 5 (4)(A) the applicable individual, entity, or in- 6 strumentality exercised due care; and 7 (B) the applicable destruction or loss of, or in- 8 jury to, the system resource was caused solely by an 9 act or omission of a third party, other than an em- 10 ployee or agent of the individual, entity, or instru- 11 mentality; or 12 (5)(A) the applicable destruction or loss of, or 13 injury to, the system resource was caused by an in- 14 dividual, entity, or instrumentality, including an em- 15 ployee or agent of the individual, entity, or instru- 16 mentality, acting in physical self-defense or defense 17 of others against physical harm; and 18 (B) the physical defense was— 19 (i) reasonably necessary; 20 (ii) without reasonable alternative; and 21 (iii) not excessive under the circumstances. 22 (c) DAMAGES.—In an action under subsection (a), 23 the court may award response costs and damages resulting 24 VerDate Sep 11 2014 02:02 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1899.IS S1899 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 1899 IS from the applicable destruction or loss of, or injury to, 1 the system resource. 2 (d) ADMINISTRATIVE ACTIONS FOR RESPONSE 3 COSTS AND DAMAGES.— 4 (1) ACTION BY SECRETARY.— 5 (A) IN GENERAL.—Subject to paragraph 6 (2), the Secretary, after making a finding de- 7 scribed in subparagraph (B), may consider, 8 compromise, and settle a claim for response 9 costs and damages if the claim has not been re- 10 ferred to the Attorney General under subsection 11 (a). 12 (B) DESCRIPTION OF FINDINGS.—A find- 13 ing referred to in subparagraph (A) is a finding 14 that— 15 (i) destruction or loss of, or injury to, 16 a system resource has occurred; or 17 (ii) that destruction, loss, or injury 18 would occur absent an action by the Sec- 19 retary to prevent, minimize, or abate the 20 destruction, loss, or injury. 21 (2) REQUIREMENT.—In any case in which the 22 total amount to be recovered in an action under sub- 23 section (a) may exceed $500,000 (excluding inter- 24 est), a claim may be compromised and settled under 25 VerDate Sep 11 2014 02:02 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1899.IS S1899 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 1899 IS paragraph (1) only with the prior written approval 1 of the Attorney General. 2 (e) RESPONSE ACTIONS, ASSESSMENTS OF DAM- 3 AGES, AND INJUNCTIVE RELIEF.— 4 (1) IN GENERAL.—The Secretary may carry out 5 any necessary action (including making a request to 6 the Attorney General to seek injunctive relief)— 7 (A) to prevent, minimize, or abate the de- 8 struction or loss of, or injury to, a system re- 9 source; or 10 (B) to abate or minimize the imminent risk 11 of that destruction, loss, or injury. 12 (2) ASSESSMENT AND MONITORING.— 13 (A) IN GENERAL.—The Secretary may as- 14 sess and monitor the destruction or loss of, or 15 injury to, any system resource for purposes of 16 paragraph (1). 17 (B) JUDICIAL REVIEW.—Any determina- 18 tion or assessment of damage to a system re- 19 source carried out under subparagraph (A) 20 shall be subject to judicial review under sub- 21 chapter II of chapter 5, and chapter 7, of title 22 5, United States Code (commonly known as the 23 ‘‘Administrative Procedure Act’’), on the basis 24 VerDate Sep 11 2014 02:02 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1899.IS S1899 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 1899 IS of the administrative record developed by the 1 Secretary. 2 (f) SCOPE.—The liability established by this section 3 shall be in addition to any other liability arising under 4 Federal or State law. 5 SEC. 4. USE OF RECOVERED AMOUNTS. 6 (a) IN GENERAL.—An amount equal to the total 7 amount of the response costs and damages recovered by 8 the Secretary under this Act and any amounts recovered 9 by the Federal Government under any provision of Fed- 10 eral, State, or local law (including regulations) or other- 11 wise as a result of the destruction or loss of, or injury 12 to, any system resource shall be made available to the Sec- 13 retary, without further appropriation, for use in accord- 14 ance with subsection (b). 15 (b) USE.—The Secretary may use amounts made 16 available under subsection (a) only, in accordance with ap- 17 plicable law— 18 (1) to reimburse response costs and damage as- 19 sessments carried out pursuant to this Act by the 20 Secretary or such other Federal agency as the Sec- 21 retary determines to be appropriate; 22 (2) to restore, replace, or acquire the equivalent 23 of a system resource that was destroyed, lost, or in- 24 jured; or 25 VerDate Sep 11 2014 02:02 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1899.IS S1899 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 1899 IS (3) to monitor and study the recovery of the 1 system resources that were destroyed, lost, or in- 2 jured. 3 (c) ALLOCATION.—The Secretary shall— 4 (1) allocate for use under subsection (b) the 5 amount of response costs and damages recovered 6 with respect to each system resource and made 7 available under subsection (a) to the unit, land, or 8 water described in section 2(4) within which the sys- 9 tem resource was located at the time of the destruc- 10 tion, loss, or injury; and 11 (2) after the allocation under paragraph (1), al- 12 locate any remaining amounts for such use under 13 subsection (b) as the Secretary determines to be ap- 14 propriate. 15 SEC. 5. DONATIONS. 16 (a) IN GENERAL.—In addition to any other authority 17 to accept donations, the Secretary may accept donations 18 of money or services for expenditure or use to meet ex- 19 pected, immediate, or ongoing response costs and dam- 20 ages. 21 (b) TIMING.—A donation described in subsection (a) 22 may be expended or used at any time after acceptance of 23 the donation, without further action by Congress. 24 VerDate Sep 11 2014 02:02 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1899.IS S1899 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 1899 IS SEC. 6. TRANSFER OF FUNDS FROM NATURAL RESOURCE 1 DAMAGE ASSESSMENT AND RESTORATION 2 FUND. 3 The matter under the heading ‘‘NATURAL RESOURCE 4 DAMAGE ASSESSMENT AND RESTORATION FUND’’ under 5 the heading ‘‘UNITED STATES FISH AND WILDLIFE 6 SERVICE’’ in title I of the Department of the Interior and 7 Related Agencies Appropriations Act, 1994 (43 U.S.C. 8 1474b–1), is amended by striking ‘‘Provided, That’’ and 9 all that follows through ‘‘activities.’’ and inserting the fol- 10 lowing: ‘‘Provided, That notwithstanding any other provi- 11 sion of law, any amounts appropriated or credited during 12 fiscal year 1992 or any fiscal year thereafter may be trans- 13 ferred to any account (including through a payment to any 14 Federal or non-Federal trustee) to carry out a negotiated 15 legal settlement or other legal action for a restoration ac- 16 tivity under the Comprehensive Environmental Response, 17 Compensation, and Liability Act of 1980 (42 U.S.C. 9601 18 et seq.), the Federal Water Pollution Control Act (33 19 U.S.C. 1251 et seq.), the Oil Pollution Act of 1990 (33 20 U.S.C. 2701 et seq.), section 100721 of title 54, United 21 States Code, or the Refuge System Protection Act: Pro- 22 vided further, That sums provided by any individual or en- 23 tity before or after the date of enactment of this Act shall 24 remain available until expended and shall not be limited 25 to monetary payments, but may include stocks, bonds, or 26 VerDate Sep 11 2014 02:02 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1899.IS S1899 pamtmann on DSKBFK8HB2PROD with BILLS 11 •S 1899 IS other personal or real property, which may be retained, 1 liquidated, or otherwise disposed of by the Secretary for 2 the restoration of injured resources or to conduct any new 3 damage assessment activity.’’. 4 Æ VerDate Sep 11 2014 02:02 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6301 E:\BILLS\S1899.IS S1899 pamtmann on DSKBFK8HB2PROD with BILLS