[Congressional Record Volume 163, Number 26 (Tuesday, February 14, 2017)]
[Senate]
[Page S1162]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. CORNYN (for himself, Mr. Cruz, Mr. Boozman, Mr. Crapo, Mr.
Flake, Mr. Roberts, and Mr. Wicker):
S. 375. A bill to amend the Endangered Species Act of 1973 to
establish a procedure for approval of certain settlements; to the
Committee on Environment and Public Works.
Mr. CORNYN. 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. 375
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.''.
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