[House Report 113-538]
[From the U.S. Government Publishing Office]


113th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     113-538

======================================================================



 
              ENDANGERED SPECIES RECOVERY TRANSPARENCY ACT

                                _______
                                

 July 17, 2014.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Hastings of Washington, from the Committee on Natural Resources, 
                        submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 4316]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 4316) to amend the Endangered Species Act of 
1973 to improve the disclosure of certain expenditures under 
that Act, and for other purposes, having considered the same, 
report favorably thereon with an amendment and recommend that 
the bill as amended do pass.
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Endangered Species Recovery 
Transparency Act''.

SEC. 2. DISCLOSURE OF EXPENDITURES UNDER ENDANGERED SPECIES ACT OF 
                    1973.

  (a) Requirement To Disclose.--Section 13 of the Endangered Species 
Act of 1973 (87 Stat. 902; relating to conforming amendments which have 
executed) is amended to read as follows:

``SEC. 13. DISCLOSURE OF EXPENDITURES.

  ``(a) Requirement.--The Secretary of the Interior, in consultation 
with the Secretary of Commerce, shall--
          ``(1) not later than 90 days after the end of each fiscal 
        year, submit to the Committee on Natural Resources of the House 
        of Representatives and the Committee on Energy and Natural 
        Resources of the Senate an annual report detailing Federal 
        Government expenditures for covered suits during the preceding 
        fiscal year (including the information described in subsection 
        (b)); and
          ``(2) make publicly available through the Internet a 
        searchable database of the information described in subsection 
        (b).
  ``(b) Included Information.--The report shall include--
          ``(1) the case name and number of each covered suit, and a 
        hyperlink to the record or decision for each covered suit (if 
        available);
          ``(2) a description of the claims in each covered suit;
          ``(3) the name of each covered agency whose actions gave rise 
        to a claim in a covered suit;
          ``(4) funds expended by each covered agency (disaggregated by 
        agency account) to receive and respond to notices referred to 
        in section 11(g)(2) or to prepare for litigation of, litigate, 
        negotiate a settlement agreement or consent decree in, or 
        provide material, technical, or other assistance in relation 
        to, a covered suit;
          ``(5) the number of full-time equivalent employees that 
        participated in the activities described in paragraph (4); and
          ``(6) attorneys fees and other expenses (disaggregated by 
        agency account) awarded in covered suits, including any consent 
        decrees or settlement agreements (regardless of whether a 
        decree or settlement agreement is sealed or otherwise subject 
        to nondisclosure provisions), including the bases for such 
        awards.
  ``(c) Requirement To Provide Information.--The head of each covered 
agency shall provide to the Secretary in a timely manner all 
information requested by the Secretary to comply with the requirements 
of this section.
  ``(d) Limitation on Disclosure.--Notwithstanding any other provision 
of this section, this section shall not affect any restriction in a 
consent decree or settlement agreement on the disclosure of information 
that is not described in subsection (b).
  ``(e) Definitions.--
          ``(1) Covered agency.--The term `covered agency' means any 
        agency of the Department of the Interior, the Forest Service, 
        the National Marine Fisheries Service, the Bonneville Power 
        Administration, the Western Area Power Administration, the 
        Southwestern Power Administration, or the Southeastern Power 
        Administration.
          ``(2) Covered suit.--The term `covered suit' means any civil 
        action containing a claim against the Federal Government, in 
        which the claim arises under this Act and is based on the 
        action of a covered agency.''.
  (b) Clerical Amendment.--The table of contents in the first section 
of such Act is amended by striking the item relating to such section 
and inserting the following:

``Sec. 13. Disclosure of expenditures.''.

  (c) Prior Amendments Not Affected.--This section shall not be 
construed to affect the amendments made by section 13 of such Act, as 
in effect before the enactment of this Act.

                          Purpose of the Bill

    The purpose of H.R. 4316 is to amend the Endangered Species 
Act of 1973 to improve the disclosure of certain expenditures 
under that Act.

                  Background and Need for Legislation

    H.R. 4316, as amended, is intended to ensure public 
transparency of litigation costs paid by American taxpayers 
relating to the Endangered Species Act (ESA) by requiring the 
Secretary of the Interior to track and report to Congress and 
make available online: 1) the total funds expended to respond 
to ESA lawsuits; 2) the number of federal employees dedicated 
to ESA lawsuits; and 3) attorneys' fees awarded in the course 
of ESA lawsuits and settlements.
    The Natural Resources Committee, through multiple hearings 
over the past three years, has received testimony from numerous 
witnesses and direct evidence from the U.S. Department of 
Justice that ESA lawsuits and threats of lawsuits are 
distracting federal agencies from their mission of species 
conservation and recovery. Much of the litigation is over 
procedure, such as federal agencies missing statutory 90-day or 
12-month deadlines in responding to a rising number of 
petitions to list species as threatened or endangered.
    In an April 20, 2011, New York Times article titled, 
``Wildlife at Risk Face Long Line at U.S. Agency,'' the U.S. 
Fish and Wildlife Service (FWS) acknowledged the number of 
petitions to list has proliferated from an average of 20 
petitions from 1994 to 2006 to more than 1,200 since 2009. At 
an August 1, 2013, hearing of the Natural Resources Committee, 
the current FWS Director, Mr. Dan Ashe, acknowledged that 
``when the Service is sued for missing deadlines, we have no 
defense.''
    Mr. David Hayes, who served as Deputy Interior Secretary 
during both the Clinton and Obama Administrations, stated 
during a March 22, 2013, speech before the Environmental Law 
and Policy Annual Review in Washington, D.C. that: ``My major 
concern is timing, resource needs, the fact that this has been 
fish-in-the-barrel litigation for folks, who because there's a 
deadline, and we miss these deadlines, and so, we've been 
spending a huge amount of, in my mind, relatively unproductive 
time fending off lawsuits in this arena.''
    While the actual total cost of ESA litigation remains 
elusive, isolated disclosures from the current Administration 
suggest that responding to ESA lawsuits consumes significant 
agency resources. For example, the FWS Fiscal Year 2013 budget 
allocated $20.9 million for endangered species listings and 
critical habitat designations, and it acknowledged that 86 full 
time employees devoted their attention to complying with court 
orders or settlement agreements resulting from litigation.
    In addition, the federal government is routinely awarding 
taxpayer-funded attorneys' fees to plaintiffs in ESA lawsuits. 
According to a 2012 Government Accountability Office (GAO) 
report of cases filed against the Departments of the Interior 
and Agriculture between 2000 and 2010, the ESA was the third 
most expensive and litigious statute for the Agriculture 
Department (costing taxpayers $1.63 million in attorneys' fees 
and costs), and the most expensive and litigious statute for 
the entire Interior Department (costing the taxpayers $22 
million in attorneys' fees and costs). In its Fiscal Year 2015 
budget request for the Office of the Solicitor, the Interior 
Department voluntarily disclosed that it had paid over $1.6 
million in attorneys' fees in Fiscal Year 2013.
    Despite these piecemeal disclosures, there is no full 
accounting of ESA litigation costs borne by the taxpayer. 
According to the previously mentioned 2012 GAO report, most 
federal agencies within the Departments of the Interior and 
Agriculture do not keep detailed records of the litigation, 
including the cases where they are required to pay attorneys' 
fees, or even the type of the cases that involve particular 
statutes such as the ESA. Former Interior Secretary Ken Salazar 
acknowledged at a 2012 budget hearing before the Natural 
Resources Committee that he could not identify how much money 
his agency spent on ESA-related litigation.
    Prior to 1995, federal agencies, including the Department 
of the Interior, were required to report attorneys' fees paid 
out as part of the Equal Access to Justice Act. The Department 
of the Interior has demonstrated the ability to track not just 
attorneys' fees, but also the cost of staff hours devoted to 
specific activities. For example, during an April 3, 2014, 
hearing on the Interior Department's Fiscal Year 2015 budget, 
Interior Secretary Jewell was able to estimate how many tax 
dollars and staff hours have been devoted to responding to 
document requests by the Natural Resources Committee.
    H.R. 4316 is intended to build on the Department's isolated 
instances of litigation disclosure to further the public's 
right to transparency, giving Congress and the federal taxpayer 
a complete and accessible accounting of expenditures on ESA 
litigation--expenditures that could otherwise be devoted to the 
core ESA mission of recovering species.
    As amended at Committee, the bill also ensures that 
electricity ratepayers served by the Power Marketing 
Administrations (the Bonneville Power Administration, the 
Western Area Power Administration, the Southwestern Power 
Administration and the Southeastern Power Administration) have 
a clear picture of how ESA costs are impacting their 
electricity rates. Though not comprehensively reported, some 
ESA-related costs incurred by the PMAs can be extraordinary. 
For example, the Bonneville Power Administration, which is one 
of the named defendants in long-standing ESA litigation on the 
operation of the Federal Columbia River Power System, has paid 
over $1.5 million ratepayer dollars in attorneys' fees to the 
plaintiffs and spent hundreds of hours in federal district 
court that have not been measured in terms of costs to 
ratepayers.
    H.R. 4316, as amended, makes no change to the citizen suit 
provision of ESA. It simply requires the agencies covered under 
the bill to provide transparent costs borne by the American 
public.

                            Committee Action

    H.R. 4316 was introduced on March 27, 2014, by 
Congresswoman Cynthia M. Lummis (R-WY). The bill was referred 
to the Committee on Natural Resources. On April 8, 2014, the 
Committee held a hearing on the bill, and on April 30, 2014, 
the Committee met to consider the bill. Congresswoman Lummis 
offered an amendment designated .033 to the bill; the amendment 
was adopted by a roll call vote of 22 to 16, as follows:


    No further amendments were offered, and the bill, as 
amended, was then adopted and ordered favorably reported to the 
House of Representatives by a roll call vote of 26 to 16, as 
follows:


            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

                    Compliance With House Rule XIII

    1. Cost of Legislation. Clause 3(d)(1) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(2)(B) 
of that rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974. Under clause 3(c)(3) of rule 
XIII of the Rules of the House of Representatives and section 
403 of the Congressional Budget Act of 1974, the Committee has 
received the following cost estimate for this bill from the 
Director of the Congressional Budget Office:

H.R. 4316--Endangered Species Recovery Transparency Act

    H.R. 4316 would require the Secretary of the Interior to 
submit a report to the Congress each year detailing federal 
government expenditures for lawsuits brought under the 
Endangered Species Act (ESA). The bill also would require the 
Secretary to create a publicly available database that would 
include information regarding each lawsuit brought under ESA.
    Based on information from the Fish and Wildlife Service 
(USFWS) regarding the costs of similar activities, CBO 
estimates that preparing the annual report for the Congress 
would have no significant effect on the federal budget. CBO 
also estimates that constructing the database required under 
the bill would cost roughly $150,000, based on information 
provided by USFWS, subject to the availability of appropriated 
funds. We estimate that any costs to update and maintain the 
database would be insignificant in any year.
    Enacting the bill would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    H.R. 4316 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Jeff LaFave. The 
estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.
    2. Section 308(a) of Congressional Budget Act. As required 
by clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives and section 308(a) of the Congressional Budget 
Act of 1974, this bill does not contain any new budget 
authority, spending authority, credit authority, or an increase 
or decrease in revenues or tax expenditures. CBO estimates that 
preparing the annual report for the Congress would have no 
significant effect on the federal budget. CBO also estimates 
that constructing the database required under the bill would 
cost roughly $150,000, based on information provided by USFWS, 
subject to the availability of appropriated funds.
    3. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to amend the Endangered Species Act 
of 1973 to improve the disclosure of certain expenditures under 
that Act.

                           Earmark Statement

    This bill does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined 
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 
the House of Representatives.

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                       Compliance With H. Res. 5

    Directed Rule Making. The Chairman does not believe that 
this bill directs any executive branch official to conduct any 
specific rule-making proceedings.
    Duplication of Existing Programs. This bill does not 
establish or reauthorize a program of the federal government 
known to be duplicative of another program. Such program was 
not included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-139 
or identified in the most recent Catalog of Federal Domestic 
Assistance published pursuant to the Federal Program 
Information Act (Public Law 95-220, as amended by Public Law 
98-169) as relating to other programs.

                Preemption of State, Local or Tribal Law

    This bill is not intended to preempt any State, local or 
tribal law.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule ``RI of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is Shown in roman):

ENDANGERED SPECIES ACT OF 1973

           *       *       *       *       *       *       *



                            TABLE OF CONTENTS

Sec. 2. Findings, purposes, and policy.
     * * * * * * *
[Sec. 13. Conforming amendments.]
Sec. 13. Disclosure of expenditures.
     * * * * * * *

                         [CONFORMING AMENDMENTS

    [Sec. 13. (a) Subsection 4(c) of the Act of October 15, 
1966 (80 Stat. 928, 16 U.S.C. 668dd (c)), is further amended by 
revising the second sentence thereof to read as follows: ``With 
the exception of endangered-species and threatened species 
listed by the Secretary pursuant to section 4 of the Endangered 
Species Act of 1973 in States wherein a cooperative agreement 
does not evict pursuant to section 6(c) of that Act, nothing in 
this Act shall be construed to authorize the Secretary to 
control or regulate hunting or fishing of resident fish and 
wildlife on lands not within the system.''
    [(b) Subsection 10(a) of the Migratory Bird Conservation 
Act (45 Stat. 1224, 16 U.S.C. 715i(a)) and subsection 401(a) of 
the Act of June 15, 1935 (49 Stat. 383, 16 U.S.C. 715s(a)), are 
each amended by striking out ``threatened with extinction,'' 
and inverting in lieu thereof the following: ``listed pursuant 
to section 4 of the Endangered Species Act of 1973 as 
endangered species or threatened species,''.
    [(c) Section 7(a)(1) of the Land and Water Conservation 
Fund Act of 1965 (16 U.S.C. 460l-9(a)(1)) is amended by 
striking out;
          [``Threatened Species.--For any national area which 
        may be authorized for the preservation of species of 
        fish or wildlife that are threatened with extinction.''
and inserting in lieu thereof the following:
          ``Endangered Species and Threatened Species.--For 
        lands, waters, or interests therein, the acquisition of 
        which is authorized under section 5(a) of the 
        Endangered Species Act of 1973, needed for the purpose 
        of conserving endangered or threatened species of fish 
        or wildlife or plants.''
    [(d). The first sentence of section 2 of the Act of 
September 28, 1962, as amended (76 Stat 653, 16 U.S.C. 480k-1), 
is amended to read as follows:
    [``The Secretary is authorized to acquire areas of land, or 
interests therein, which are suitable for--
          [``(1) incidental fish and wildlife-oriented 
        recreational development,
          [``(2) the protection of natural resources,
          [``(3) the conservation of endangered species or 
        threatened species listed by the Secretary pursuant to 
        section 4 of the Endangered Species Act of 1973, or
          [``(4) carrying out two or more of the purposes set 
        forth in paragraphs (1) through (3) of this section, 
        and are adjacent to, or within, the said conservation 
        areas, except that the acquisition of any land or 
        interest therein pursuant to this section shall be 
        accomplished only with such funds as may be 
        appropriated therefor by the Congress or donated for 
        such purposes, but such property shall not be acquired 
        with funds obtained from the sale of Federal migratory 
        bird hunting stamps.''
    (e) The Marine Mammal Protection Act of 1972 (16 U.S.C. 
1361-1107) is amended--
          [(1) by striking out ``Endangered Species 
        Conservation Act of 1969'' in section 3(1)(B) thereof 
        and inserting in lieu thereof the following: 
        ``Endangered Species Act of 1973'';
          [(2) by striking out ``pursuant to the Endangered 
        Species Conservation Act of 1969'' in section 
        101(a)(3)(B) thereof and inserting in lieu thereof the 
        following: ``or threatened species pursuant to the 
        Endangered Species Act of 1973'';
          [(3) by striking out ``endangered under the 
        Endangered Species Conservation Act of 1969'' in 
        section 102(b)(3) thereof and inserting in lieu thereof 
        the following: ``an endangered species or threatened 
        species pursuant to the Endangered Species Act of 
        1973''; and
          [(4) by striking out ``of the Interior such revisions 
        of the Endangered Species List, authorized by the 
        Endangered Species Conservation Act of 1969,'' in 
        section 202(a)(6) thereof and inserting in lieu thereof 
        the following : ``such revisions of the endangered 
        species list and threatened species list published 
        pursuant to section 4(c)(1) of the Endangered Species 
        Act of 1973''.
    [(f) Section 2(l) of the Federal Environmental Pesticide 
Control Act of 1972 (Public Law 92-516) is amended by striking 
out the words ``by the Secretary of the Interior under Public 
Law 91-135'' and inserting in lieu thereof the words ``or 
threatened by the Secretary pursuant to the Endangered Species 
Act of 1973''.]

SEC. 13. DISCLOSURE OF EXPENDITURES.

    (a) Requirement.--The Secretary of the Interior, in 
consultation with the Secretary of Commerce, shall--
          (1) not later than 90 days after the end of each 
        fiscal year, submit to the Committee on Natural 
        Resources of the House of Representatives and the 
        Committee on Energy and Natural Resources of the Senate 
        an annual report detailing Federal Government 
        expenditures for covered suits during the preceding 
        fiscal year (including the information described in 
        subsection (b)); and
          (2) make publicly available through the Internet a 
        searchable database of the information described in 
        subsection (b).
    (b) Included Information.--The report shall include--
          (1) the case name and number of each covered suit, 
        and a hyperlink to the record or decision for each 
        covered suit (if available);
          (2) a description of the claims in each covered suit;
          (3) the name of each covered agency whose actions 
        gave rise to a claim in a covered suit;
          (4) funds expended by each covered agency 
        (disaggregated by agency account) to receive and 
        respond to notices referred to in section 11(g)(2) or 
        to prepare for litigation of, litigate, negotiate a 
        settlement agreement or consent decree in, or provide 
        material, technical, or other assistance in relation 
        to, a covered suit;
          (5) the number of full-time equivalent employees that 
        participated in the activities described in paragraph 
        (4); and
          (6) attorneys fees and other expenses (disaggregated 
        by agency account) awarded in covered suits, including 
        any consent decrees or settlement agreements 
        (regardless of whether a decree or settlement agreement 
        is sealed or otherwise subject to nondisclosure 
        provisions), including the bases for such awards.
    (C) Requirement To Provide Information.--The head of each 
covered agency shall provide to the Secretary in a timely 
manner all information requested by the Secretary to comply 
with the requirements of this section.
    (d) Limitation on Disclosure.--Notwithstanding any other 
provision of this section, this section shall not affect any 
restriction in a consent decree or settlement agreement on the 
disclosure of information that is not described in subsection 
(b).
    (e) Definitions.--
          (1) Covered agency.--The term ``covered agency'' 
        means any agency of the Department of the Interior, the 
        Forest Service, the National Marine Fisheries Service, 
        the Bonneville Power Administration, the Western Area 
        Power Administration, the Southwestern Power 
        Administration, or the Southeastern Power 
        Administration.
          (2) Covered suit.--The term ``covered suit'' means 
        any civil action containing a claim against the Federal 
        Government, in which the claim arises under this Act 
        and is based on the action of a covered agency.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    H.R. 4316 will do nothing to recover endangered species, 
despite including the word ``recovery'' in its title.
    This bill is based on the false premise that environmental 
groups are getting rich filing lawsuits against the Federal 
government under the Endangered Species Act (ESA). Apparently, 
the Majority thinks requiring agencies to file detailed and 
onerous reports on ESA litigation will somehow address this 
alleged problem.
    In reality, this burdensome reporting effort will divert 
already limited time and resources from species recovery 
efforts and, according to the Fish and Wildlife Service and 
National Marine Fisheries Service, will neither impact the 
manner in which they implement the ESA, nor the manner in which 
they address litigation.
    Ironically, all federal agencies were previously required 
to report their litigation costs under the Equal Access to 
Justice Act (EAJA), but the Majority eliminated that reporting 
requirement in 1995 as one of their efforts to cut government 
``waste.'' There has been no official accounting of EAJA 
payments since.
    The Majority, which frequently supports ``streamlining'' 
environmental laws, actually supports creating more red tape, 
but only for the Fish and Wildlife Service, NMFS, and the 
Forest Service, and only for lawsuits filed under the ESA. In 
addition, as the result of an amendment adopted in Committee, 
the reporting requirement for ESA litigation will now apply to 
the Power Marketing Administrations (Bonneville, Western, 
Southwestern and Southeastern), increasing costs for the 
ratepayers in those regions.
    If the Majority were truly concerned about agency budgets 
and diversion of resources, they should reevaluate their 
endless document demands and subpoenas which have cost millions 
of dollars and required thousands of staff-hours to address.
    Because H.R. 4316 will make species recovery more 
difficult, we oppose this legislation.
                                   Peter A. DeFazio.
                                   Raul M. Grijalva.
                                   Grace F. Napolitano.
                                   Gregorio Kilili Camacho Sablan.
                                   Eni F. H. Faleomavaega.
                                   Rush Holt.
                                   Jared Huffman.
                                   Alan S. Lowenthal.
                                   Katherine M. Clark.
                                   Matt Cartwright.

                                  
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