[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 3500 Introduced in Senate (IS)]

112th CONGRESS
  2d Session
                                S. 3500

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             August 2, 2012

Mr. Cornyn (for himself, Mr. Barrasso, Mr. Coburn, Mr. Inhofe, Mr. Lee, 
Ms. Murkowski, Mr. Roberts, Mr. Vitter, 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 Representatives of the 
United States of America in Congress assembled,

SECTION 1. DEFINITIONS.

    Section 3 of the Endangered Species Act of 1973 (16 U.S.C. 1532) is 
amended--
            (1) by redesignating--
                    (A) paragraphs (1) through (4) as paragraphs (2) 
                through (5), respectively;
                    (B) paragraphs (5) through (10) as paragraphs (7) 
                through (12), respectively; and
                    (C) paragraphs (12) through (21) as paragraphs (13) 
                through (22), respectively;
            (2) by adding before paragraph (2) (as so redesignated) the 
        following:
            ``(1) Affected parties.--The term `affected party' means 
        any person, including a business entity, or any State, tribal 
        government, or local subdivision the rights of which may be 
        affected by a determination made under section 4(a) in a suit 
        brought under section 11(g)(1)(C).''; and
            (3) by adding after paragraph (5) (as so redesignated) the 
        following:
            ``(6) Covered settlement.--The term `covered settlement' 
        means a consent decree or a settlement agreement in an action 
        brought under section 11(g)(1)(C).''.

SEC. 2. INTERVENTION; APPROVAL OF COVERED SETTLEMENT.

    Section 11(g) of the Endangered Species Act of 1973 (16 U.S.C. 
1540) is amended--
            (1) in paragraph (3), by adding at the end the following:
                    ``(C) Publishing complaint; intervention.--
                            ``(i) Publishing complaint.--
                                    ``(I) In general.--Not later than 
                                30 days after the date on which the 
                                plaintiff serves the defendant with the 
                                complaint in an action brought under 
                                paragraph (1)(C) in accordance with 
                                Rule 4 of the Federal Rules of Civil 
                                Procedure, the Secretary of the 
                                Interior shall publish the complaint in 
                                a readily accessible manner, including 
                                electronically.
                                    ``(II) Failure to meet deadline.--
                                The failure of the Secretary to meet 
                                the 30-day deadline described in 
                                subclause (I) shall not be the basis 
                                for an action under paragraph (1)(C).
                            ``(ii) Intervention.--
                                    ``(I) In general.--After the end of 
                                the 30-day period described in clause 
                                (i), each affected party shall be given 
                                a reasonable opportunity to move to 
                                intervene in the action described in 
                                clause (i), until the end of which a 
                                party may not file a motion for a 
                                consent decree or to dismiss the case 
                                pursuant to a settlement agreement.
                                    ``(II) Rebuttable presumption.--In 
                                considering a motion to intervene by 
                                any affected party, the court shall 
                                presume, subject to rebuttal, that the 
                                interests of that party would not be 
                                represented adequately by the parties 
                                to the action described in clause (i).
                                    ``(III) Referral to alternative 
                                dispute resolution.--
                                            ``(aa) In general.--If the 
                                        court grants a motion to 
                                        intervene in the action, the 
                                        court shall refer the action to 
                                        facilitate settlement 
                                        discussions to--

                                                    ``(AA) the 
                                                mediation program of 
                                                the court; or

                                                    ``(BB) a magistrate 
                                                judge.

                                            ``(bb) Parties included in 
                                        settlement discussions.--The 
                                        settlement discussions 
                                        described in item (aa) shall 
                                        include each--

                                                    ``(AA) plaintiff;

                                                    ``(BB) defendant 
                                                agency; and

                                                    ``(CC) 
                                                intervenor.'';

            (2) by striking paragraph (4) and inserting the following:
            ``(4) Litigation costs.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B), the court, in issuing any final order 
                in any suit brought under paragraph (1), may award 
                costs of litigation (including reasonable attorney and 
                expert witness fees) to any party, whenever the court 
                determines such award is appropriate.
                    ``(B) Covered settlement.--
                            ``(i) Consent decrees.--The court shall not 
                        award costs of litigation in any proposed 
                        covered settlement that is a consent decree.
                            ``(ii) Other covered settlements.--
                                    ``(I) In general.--For a proposed 
                                covered settlement other than a consent 
                                decree, the court shall ensure that the 
                                covered settlement does not include 
                                payment to any plaintiff for the costs 
                                of litigation.
                                    ``(II) Motions.--The court shall 
                                not grant any motion, including a 
                                motion to dismiss, based on the 
                                proposed covered settlement described 
                                in subclause (I) if the covered 
                                settlement includes payment to any 
                                plaintiff for the costs of 
                                litigation.''; and
            (3) by adding at the end the following:
            ``(6) Approval of covered settlement.--
                    ``(A) Definition of species.--In this paragraph, 
                the term `species' means a species that is the subject 
                of an action brought under paragraph (1)(C).
                    ``(B) In general.--
                            ``(i) Consent decrees.--The court shall not 
                        approve a proposed covered settlement that is a 
                        consent decree unless each State and county in 
                        which the Secretary of the Interior believes a 
                        species occurs approves the covered settlement.
                            ``(ii) Other covered settlements.--
                                    ``(I) In general.--For a proposed 
                                covered settlement other than a consent 
                                decree, the court shall ensure that the 
                                covered settlement is approved by each 
                                State and county in which the Secretary 
                                of the Interior believes a species 
                                occurs.
                                    ``(II) Motions.--The court shall 
                                not grant any motion, including a 
                                motion to dismiss, based on the 
                                proposed covered settlement described 
                                in subclause (I) unless the covered 
                                settlement is approved by each State 
                                and county in which the Secretary of 
                                the Interior believes a species occurs.
                    ``(C) Notice.--
                            ``(i) In general.--The Secretary of the 
                        Interior shall provide each State and county in 
                        which the Secretary of the Interior believes a 
                        species occurs notice of a proposed covered 
                        settlement.
                            ``(ii) Determination of relevant states and 
                        counties.--The defendant in a covered 
                        settlement shall consult with each State 
                        described in clause (i) to determine each 
                        county in which the Secretary of the Interior 
                        believes a species occurs.
                    ``(D) Failure to respond.--The court may approve a 
                covered settlement or grant a motion described in 
                subparagraph (B)(ii)(II) if, not later than 45 days 
                after the date on which a State or county is notified 
                under subparagraph (C)--
                            ``(i)(I) a State or county fails to 
                        respond; and
                            ``(II) of the States or counties that 
                        respond, each State or county approves the 
                        covered settlement; or
                            ``(ii) all of the States and counties fail 
                        to respond.
                    ``(E) Proof of approval.--The defendant in a 
                covered settlement shall prove any State or county 
                approval described in this paragraph in a form--
                            ``(i) acceptable to the State or county, as 
                        applicable; and
                            ``(ii) signed by the State or county 
                        official authorized to approve the covered 
                        settlement.''.
                                 <all>