[Congressional Record Volume 160, Number 101 (Thursday, June 26, 2014)]
[Senate]
[Pages S4160-S4163]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CARDIN (by request):
  S. 2560. A bill to authorize the United States Fish and Wildlife 
Service to seek compensation for injuries to trust resources and use 
those funds to restore, replace, or acquire equivalent resources, and 
for other purposes; to the Committee on Environment and Public Works.
  Mr. CARDIN. Mr. President, I rise today to speak about a bill I am 
introducing that will provide the Department of Interior the necessary 
and appropriate authority to seek compensation from responsible parties 
who cause injury to public resources managed by the United States Fish 
and Wildlife Service like National Wildlife Refuges, National Fish 
Hatcheries, and other Service facilities. The proposal would allow the 
United States Fish and Wildlife Service, USFWS, to recover costs for 
assessing injury and to restore, replace, or acquire equivalent 
resources without further Congressional appropriations. The National 
Park Service, NPS, under the Park System Resource Protection Act 
PSRPA--16 U.S.C. 19jj, and the National Oceanic and Atmospheric 
Administration, NOAA, under the National Marine Sanctuaries Act, NMSA--
16 U.S.C. 1431, currently have similar authorities and its time USWFS 
were afforded this authority as well.
  The Service Resource Protection Act, RPA, would enhance the 
protection and restoration of USFWS resources found on National 
Wildlife Refuges, National Fish Hatcheries and other Service lands, 
should injury or harm occur. The RPA is a proposed statute that 
specifically protects all living and non-living resources within 
Service lands and waters. Any funds collected to compensate for injury 
or destruction of Service resources would be used to rectify that 
specific harm without further Congressional appropriation. Under this 
authority, damages could be used to reimburse assessment costs; prevent 
or minimize resource loss; abate or minimize the risk of loss; monitor 
ongoing effects, and/or restore, replace, or acquire resources 
equivalent to those injured or destroyed.
  Currently, USFWS Service manages more than 150 million acres of 
National Wildlife Refuge lands and 71 National Fish Hatcheries. The sum 
of USFWS's acres is greater than those lands and water resources 
managed by the NPS

[[Page S4161]]

and NOAA combined. USFWS has significant land based management 
responsibilities that are quite different from NOAA, in addition to 
marine and estuarine areas USFWS manages. Compared to National Parks, 
Refuges allow for a broader range of activities--such as hunting, 
fishing, and wildlife dependent activities. The large size of the 
USFWS's resource portfolio and the unique and varied stressors on these 
resources makes it imperative that the USFWS have the appropriate 
authority to seek damages from responsible parties who degrade or 
destroy USFWS resources and property.
  Unlike NPS and NOAA, USFWS does not have the authority to recover 
damages, e.g., monetary compensation, from responsible parties to 
assess and restore injured resources without prior Congressional 
appropriation. Today, when Service resources are damaged or destroyed, 
the costs for repair and restoration of these resources falls upon the 
appropriated budget for the affected Refuge, often at the expense of 
other Refuge programs. Competing priorities can leave Service resources 
languishing until the refuge obtains appropriations from Congress to 
address the injury. This may result in more intensive injuries, higher 
costs, and long-term degradation of publicly-owned Service resources.
  When bad actors harm public resources managed by USFWS the 
responsibility for remedying the problems caused by bad actors should 
not fall to the taxpayer to solve. More over the fact that currently to 
repair damages to USFWS resources may require earmarks in the budget to 
ensure these problems are resolved is doubly unfair in that such budget 
requirements take resources away from other worthwhile projects that 
are unrelated to fixing the problems caused by irresponsible actors. It 
is patently unfair for taxpayers to shoulder the burden of solving the 
mistakes and negligence of others. The public expects that Refuge 
resources--and the broad range of activities they support--will be 
available for future generations. Our bill ensures that persons 
responsible for harm, not taxpayers, should pay for any injury they 
cause.
  While the Natural Resource Damage Assessment and Restoration program 
established under the Oil Pollution Act and CERCLA establishes a unique 
process for the USFWS to seek damages in limited circumstances 
involving oil spills and or the release of hazardous substances. These 
laws do not apply to situations when toxics materials and regular solid 
waste are dumped on or near a refuge that are not formally defined as 
hazardous substances and the USFWS is not authorized to recover funds 
to address injury from the responsible party in these situations under 
existing statute. Additionally, for injuries caused by actions or 
mechanisms other than a `spill' of oil or release of a hazardous 
substance, such as illegal cutting of vegetation, destruction or 
vandalism of real property and facilities, e.g., kiosks, visitor 
centers, fire and abandoned debris, the USFWS has no statutory 
mechanism to recover costs for assessing and restoring the public's 
resources. In contrast, NPS and NOAA have statutory authority to 
recover civil damages for these types of injuries, and the funds go to 
the agencies for assessment and restoration.
  USFWS manages 556 National Wildlife Refuges and 38 Wetland Management 
Districts, covering over 150 million acres, and accounting for 25 
percent of public lands and waters managed by the Department of the 
Interior. The agency is also responsible for 71 National Fish 
Hatcheries and a National Conservation Training Center, which would 
also be covered by the proposed legislation. Management of the Refuge 
System prioritizes wildlife conservation and habitat management, but 
encourages the American public to enjoy the benefits of these lands. In 
the organic legislation, the National Wildlife Refuge System 
Improvement Act of 1997, activities such as hunting, fishing, 
photography, wildlife observation, environmental education and 
interpretation were identified as priority public uses on Refuges.
  Found in every U.S. State and territory, and within an hour's drive 
of most metropolitan areas, National Wildlife Refuges: attract 
approximately 45 million visitors each year; protect clean air and safe 
drinking water for nearby communities; protect more than 700 bird 
species, 220 mammals, 250 reptiles and amphibians, and 1,000 fish 
species; offers hunting on 322 refuges and fishing on 272 refuges; and 
generates more than $1.7 billion for local economies, creates nearly 
27,000 U.S. jobs annually, provides $543 million in employment income, 
and adds more than $185 million in tax revenue.
  The fiscal year 2014 appropriated budget for the Refuge System is 
approximately $72 million dollars, but it is estimated that the current 
operations and maintenance, O&M, backlog tops $3 billion dollars. The 
National Fish Hatchery System has a backlog in excess of $300 million. 
Because the Service does not have statutory authority to pursue 
recovery of damages from responsible parties, the cost of replacing or 
restoring injured Refuge or Hatchery resources typically gets included 
in the O&M project list, and requires tax-payer funding to fix. This 
legislation would allow the Service to recover damages directly from 
the person or persons that harmed the resource, thus removing this 
additional financial burden from taxpayers.
  The legislation is not intended to generate revenue for the Service; 
instead, it aims to be budget neutral. Any funds collected to 
compensate for resource injuries will be used to rectify that specific 
injury without the need for Congressional appropriation. Under this 
authority, damages would be required to reimburse assessment costs; 
prevent or minimize resource loss; abate or minimize the risk of loss; 
monitor ongoing effects, and/or restore, replace, or acquire resources 
equivalent to those injured or destroyed.
  By way of example, NPS has recovered damages on cases ranging from 
$125.00--$10 million dollars for assessment and restoration of injuries 
to resources on their lands. However, a direct comparison between USFWS 
and NPS is of limited value, since the two agencies have dissimilar 
missions and allow for different activities on their lands. The Refuge 
and Hatchery systems also manage many more individual land units and 
twice the acreage of the NPS.
  USFWS administers several laws, such as the Migratory Bird Treaty 
Act, that provide for penalties and fees as part of civil or criminal 
proceedings. The RPA is a civil authority that would allow the Service 
to recover compensation in the form of monetary damages for costs 
associated with assessment and restoration of injured resources. It is 
intended to make the public whole: it is not meant to be punitive 
towards the person or persons who caused the injury. As part of the 
Annual Uniform Crime Report, AUCR, Service Law Enforcement has 
identified several categories of crimes in which they have prosecuted 
individuals for criminal violations and received associated fines. 
These fines are remitted to the U.S. Treasury and do not provide any 
means to assess injury or recover restoration costs associated with 
repairing or replacing resources. The Service has used Tort law to 
recover damages on occasion, but many of our cases do not meet the 
dollar threshold for pursuing a civil lawsuit by the Department of 
Justice. As a result, even though cases may be criminally prosecuted, 
most of them are not pursued as a potential civil claim.
  However, if the Service had RPA authority, we could use a civil 
process to recover costs for assessment and restoration. The AUCR 
provides many examples of areas where the Service could use the civil 
authority under RPA in conjunction with other criminal procedures. In 
2010, 39 arson offenses were reported on Service lands. Monetary loss 
to the government resulting from these cases totaled almost $850,000, 
but neither restoration funds, nor repair of the public's resources 
resulted from these prosecutions. Similarly, over 2,300 vandalism 
offenses, totaling $314,000 in monetary loss were documented. Other 
reported offenses number in the thousands and could lead to recovery of 
damages for many field stations: These include, illegal off-road use 
(n=2,234), trespass (n = 8,163), and other natural resource violations 
(n = 4,628). In these instances, the Service must choose between using 
tax-payer funded, appropriations to pay for assessing, repairing, 
replacing or restoring structures, habitat and other resources injured 
by the responsible party or for other important Refuge needs.

[[Page S4162]]

  It is time to shed taxpayers' cost burden of repairs and restoration 
due to damage caused by the unlawful behavior of negligent individuals 
and give the USFWS the authority it need to collect damages from those 
responsible to do the work to right what's wrong. I urge my colleagues 
to support this bill.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2560

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``United States Fish and 
     Wildlife Service Resource Protection Act''.

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) Damages.--The term ``damages'' means--
       (A) compensation for--
       (i)(I) the cost of replacing, restoring, or acquiring the 
     equivalent of a system resource; and
       (II) the value of any significant loss of use of a system 
     resource, pending--

       (aa) restoration or replacement of the system resource; or
       (bb) the acquisition of an equivalent resource; or

       (ii) the value of a system resource, if the system resource 
     cannot be replaced or restored; and
       (B) the cost of any relevant damage assessment carried out 
     pursuant to section 4(c).
       (2) Response cost.--The term ``response cost'' means the 
     cost of any action carried out by the Secretary--
       (A) to prevent, minimize, or abate destruction or loss of, 
     or injury to, a system resource;
       (B) to abate or minimize the imminent risk of such 
     destruction, loss, or injury; or
       (C) to monitor the ongoing effects of any incident causing 
     such destruction, loss, or injury.
       (3) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior.
       (4) System resource.--The term ``system resource'' means 
     any living, nonliving, historical, cultural, or archeological 
     resource that is located within the boundaries of--
       (A) a unit of the National Wildlife Refuge System;
       (B) a unit of the National Fish Hatchery System; or
       (C) any other land managed by the United States Fish and 
     Wildlife Service, including any land managed cooperatively 
     with any other Federal or State agency.

     SEC. 3. LIABILITY.

       (a) In General.--Subject to subsection (c), any individual 
     or entity that destroys, causes the loss of, or injures any 
     system resource, or that causes the Secretary to carry out 
     any action to prevent, minimize, or abate destruction or loss 
     of, or injuries or risk to, any system resource, shall be 
     liable to the United States for any response costs or damages 
     resulting from the destruction, loss, or injury.
       (b) Liability in Rem.--Any instrumentality (including a 
     vessel, vehicle, aircraft, or other equipment or mechanism) 
     that destroys, causes the loss of, or injures any system 
     resource, or that causes the Secretary to carry out any 
     action to prevent, minimize, or abate destruction or loss of, 
     or injury or risk to, a system resource shall be liable in 
     rem to the United States for any response costs or damages 
     resulting from the destruction, loss, or injury, to the same 
     extent that an individual or entity is liable under 
     subsection (a).
       (c) Defenses.--An individual or entity shall not be liable 
     under this section, if the individual or entity can establish 
     that--
       (1) the destruction or loss of, or injury to, the system 
     resource was caused solely by an act of God or an act of war; 
     or
       (2)(A) the individual or entity exercised due care; and
       (B) the destruction or loss of, or injury to, the system 
     resource was caused solely by an act or omission of a third 
     party, other than an employee or agent of the individual or 
     entity.
       (d) Scope.--The liability established by this section shall 
     be in addition to any other liability arising under Federal 
     or State law.

     SEC. 4. ACTIONS.

       (a) Civil Actions for Response Costs and Damages.--The 
     Attorney General, on request of the Secretary, may commence a 
     civil action in the United States district court of 
     appropriate jurisdiction against any individual, entity, or 
     instrumentality that may be liable under section 3 for 
     response costs or damages.
       (b) Administrative Actions for Response Costs and 
     Damages.--
       (1) Action by secretary.--
       (A) In general.--Subject to paragraph (2), the Secretary, 
     after making a finding described in subparagraph (B), may 
     consider, compromise, and settle a claim for response costs 
     and damages if the claim has not been referred to the 
     Attorney General under subsection (a).
       (B) Description of findings.--A finding referred to in 
     subparagraph (A) is a finding that--
       (i) destruction or loss of, or injury to, a system resource 
     has occurred; or
       (ii) such destruction, loss, or injury would occur absent 
     an action by the Secretary to prevent, minimize, or abate the 
     destruction, loss, or injury.
       (2) Requirement.--In any case in which the total amount to 
     be recovered in a civil action under subsection (a) may 
     exceed $500,000 (excluding interest), a claim may be 
     compromised and settled under paragraph (1) only with the 
     prior written approval of the Attorney General.
       (c) Response Actions, Assessments of Damages, and 
     Injunctive Relief.--
       (1) In general.--The Secretary may carry out all necessary 
     actions (including making a request to the Attorney General 
     to seek injunctive relief)--
       (A) to prevent, minimize, or abate destruction or loss of, 
     or injury to, a system resource; or
       (B) to abate or minimize the imminent risk of such 
     destruction, loss, or injury.
       (2) Assessment and monitoring.--
       (A) In general.--The Secretary may assess and monitor the 
     destruction or loss of, or injury to, any system resource for 
     purposes of paragraph (1).
       (B) Judicial review.--Any determination or assessment of 
     damage to a system resource carried out under subparagraph 
     (A) shall be subject to judicial review under subchapter II 
     of chapter 5, and chapter 7, of title 5, United States Code 
     (commonly known as the ``Administrative Procedure Act''), on 
     the basis of the administrative record developed by the 
     Secretary.

     SEC. 5. USE OF RECOVERED AMOUNTS.

       (a) In General.--An amount equal to the total amount of the 
     response costs and damages recovered by the Secretary under 
     this Act and any amounts recovered by the Federal Government 
     under any provision of Federal, State, or local law 
     (including regulations) or otherwise as a result of the 
     destruction or loss of, or injury to, any system resource 
     shall be made available to the Secretary, without further 
     appropriation, for use in accordance with subsection (b).
       (b) Use.--The Secretary may use amounts made available 
     under subsection (a) only, in accordance with applicable 
     law--
       (1) to reimburse response costs and damage assessments 
     carried out pursuant to this Act by the Secretary or such 
     other Federal agency as the Secretary determines to be 
     appropriate;
       (2) to restore, replace, or acquire the equivalent of a 
     system resource that was destroyed, lost, or injured; or
       (3) to monitor and study system resources.

     SEC. 6. DONATIONS.

       (a) In General.--In addition to any other authority to 
     accept donations, the Secretary may accept donations of money 
     or services for expenditure or use to meet expected, 
     immediate, or ongoing response costs and damages.
       (b) Timing.--A donation described in subsection (a) may be 
     expended or used at any time after acceptance of the 
     donation, without further action by Congress.

     SEC. 7. TRANSFER OF FUNDS FROM NATURAL RESOURCE DAMAGE 
                   ASSESSMENT AND RESTORATION FUND.

       The matter under the heading ``Natural resource damage 
     assessment and restoration fund'' under the heading ``United 
     states fish and wildlife service'' of title I of the 
     Department of the Interior and Related Agencies 
     Appropriations Act, 1994 (43 U.S.C. 1474b-1), is amended by 
     striking ``Provided, That'' and all that follows through 
     ``activities.'' and inserting the following: ``Provided, That 
     notwithstanding any other provision of law, any amounts 
     appropriated or credited during fiscal year 1992 or any 
     fiscal year thereafter may be transferred to any account 
     (including through a payment to any Federal or non-Federal 
     trustee) to carry out a negotiated legal settlement or other 
     legal action for a restoration activity under the 
     Comprehensive Environmental Response, Compensation, and 
     Liability Act (42 U.S.C. 9601 et seq.), the Federal Water 
     Pollution Control Act (33 U.S.C. 1251 et seq.), the Oil 
     Pollution Act of 1990 (33 U.S.C. 2701 et seq.), the Act of 
     July 27, 1990 (16 U.S.C. 19jj et seq.), or the United States 
     Fish and Wildlife Service Resource Protection Act, or for any 
     damage assessment activity: Provided further, That sums 
     provided by any individual or entity before or after the date 
     of enactment of this Act shall remain available until 
     expended and shall not be limited to monetary payments, but 
     may include stocks, bonds, or other personal or real 
     property, which may be retained, liquidated, or otherwise 
     disposed of by the Secretary for the restoration of injured 
     resources or to conduct any new damage assessment 
     activity.''.

[[Page S4163]]



                          ____________________