II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. DEFINITIONS. 

4 Section 3 of the Endangered Species Act of 1973 (16 

5 U.S.C. 1532) is amended— 

6 (1) by redesignating— 

7 (A) paragraphs (1) through (4) as para8 graphs (2) through (5), respectively; 


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1 (B) paragraphs (5) through (10) as para2 graphs (7) through (12), respectively; and 

3 (C) paragraphs (12) through (21) as para4 graphs (13) through (22), respectively; 

5 (2) by adding before paragraph (2) (as so re6 designated) the following: 

7 ‘‘(1) AFFECTED PARTIES.—The term ‘affected 

8 party’ means any person, including a business enti9 ty, or any State, tribal government, or local subdivi10 sion the rights of which may be affected by a deter11 mination made under section 4(a) in a suit brought 

12 under section 11(g)(1)(C).’’; and 

13 (3) by adding after paragraph (5) (as so redes14 ignated) the following: 

15 ‘‘(6) COVERED SETTLEMENT.—The term ‘cov16 ered settlement’ means a consent decree or a settle17 ment agreement in an action brought under section 

18 11(g)(1)(C).’’. 

19 SEC. 2. INTERVENTION; APPROVAL OF COVERED SETTLE20 MENT. 

21 Section 11(g) of the Endangered Species Act of 1973 

22 (16 U.S.C. 1540) is amended— 

23 (1) in paragraph (3), by adding at the end the 

24 following: 


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1 ‘‘(C) PUBLISHING COMPLAINT; INTERVEN2 TION.— 

3 ‘‘(i) PUBLISHING COMPLAINT.— 

4 ‘‘(I) IN GENERAL.—Not later 

5 than 30 days after the date on which 

6 the plaintiff serves the defendant with 

7 the complaint in an action brought 

8 under paragraph (1)(C) in accordance 

9 with Rule 4 of the Federal Rules of 

10 Civil Procedure, the Secretary of the 

11 Interior shall publish the complaint in 

12 a readily accessible manner, including 

13 electronically. 

14 ‘‘(II) FAILURE TO MEET DEAD15 LINE.—The failure of the Secretary to 

16 meet the 30-day deadline described in 

17 subclause (I) shall not be the basis for 

18 an action under paragraph (1)(C). 

19 ‘‘(ii) INTERVENTION.— 

20 ‘‘(I) IN GENERAL.—After the end 

21 of the 30-day period described in 

22 clause (i), each affected party shall be 

23 given a reasonable opportunity to 

24 move to intervene in the action de25 scribed in clause (i), until the end of 


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1 which a party may not file a motion 

2 for a consent decree or to dismiss the 

3 case pursuant to a settlement agree4 ment. 

5 ‘‘(II) REBUTTABLE PRESUMP6 TION.—In considering a motion to in7 tervene by any affected party, the 

8 court shall presume, subject to rebut9 tal, that the interests of that party 

10 would not be represented adequately 

11 by the parties to the action described 

12 in clause (i). 

13 ‘‘(III) REFERRAL TO ALTER14 NATIVE DISPUTE RESOLUTION.— 

15 ‘‘(aa) IN GENERAL.—If the 

16 court grants a motion to inter17 vene in the action, the court shall 

18 refer the action to facilitate set19 tlement discussions to— 

20 ‘‘(AA) the mediation 

21 program of the court; or 

22 ‘‘(BB) a magistrate 

23 judge. 

24 ‘‘(bb) PARTIES INCLUDED IN

25 SETTLEMENT DISCUSSIONS.— 


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1 The settlement discussions de2 scribed in item (aa) shall include 

3 each— 

4 ‘‘(AA) plaintiff; 

5 ‘‘(BB) defendant agen6 cy; and 

7 ‘‘(CC) intervenor.’’; 

8 (2) by striking paragraph (4) and inserting the 

9 following: 

10 ‘‘(4) LITIGATION COSTS.— 

11 ‘‘(A) IN GENERAL.—Except as provided in 

12 subparagraph (B), the court, in issuing any 

13 final order in any suit brought under paragraph 

14 (1), may award costs of litigation (including 

15 reasonable attorney and expert witness fees) to 

16 any party, whenever the court determines such 

17 award is appropriate. 

18 ‘‘(B) COVERED SETTLEMENT.— 

19 ‘‘(i) CONSENT DECREES.—The court 

20 shall not award costs of litigation in any 

21 proposed covered settlement that is a con22 sent decree. 

23 ‘‘(ii) OTHER COVERED SETTLE24 MENTS.— 


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1 ‘‘(I) IN GENERAL.—For a pro2 posed covered settlement other than a 

3 consent decree, the court shall ensure 

4 that the covered settlement does not 

5 include payment to any plaintiff for 

6 the costs of litigation. 

7 ‘‘(II) MOTIONS.—The court shall 

8 not grant any motion, including a mo9 tion to dismiss, based on the proposed 

10 covered settlement described in sub11 clause (I) if the covered settlement in12 cludes payment to any plaintiff for the 

13 costs of litigation.’’; and 

14 (3) by adding at the end the following: 

15 ‘‘(6) APPROVAL OF COVERED SETTLEMENT.— 

16 ‘‘(A) DEFINITION OF SPECIES.—In this 

17 paragraph, the term ‘species’ means a species 

18 that is the subject of an action brought under 

19 paragraph (1)(C). 

20 ‘‘(B) IN GENERAL.— 

21 ‘‘(i) CONSENT DECREES.—The court 

22 shall not approve a proposed covered set23 tlement that is a consent decree unless 

24 each State and county in which the SecVerDate Mar 15 2010 00:32 Aug 11, 2012 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3500.IS S3500

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1 retary of the Interior believes a species oc2 curs approves the covered settlement. 

3 ‘‘(ii) OTHER COVERED SETTLE4 MENTS.— 

5 ‘‘(I) IN GENERAL.—For a pro6 posed covered settlement other than a 

7 consent decree, the court shall ensure 

8 that the covered settlement is ap9 proved by each State and county in 

10 which the Secretary of the Interior be11 lieves a species occurs. 

12 ‘‘(II) MOTIONS.—The court shall 

13 not grant any motion, including a mo14 tion to dismiss, based on the proposed 

15 covered settlement described in sub16 clause (I) unless the covered settle17 ment is approved by each State and 

18 county in which the Secretary of the 

19 Interior believes a species occurs. 

20 ‘‘(C) NOTICE.— 

21 ‘‘(i) IN GENERAL.—The Secretary of 

22 the Interior shall provide each State and 

23 county in which the Secretary of the Inte24 rior believes a species occurs notice of a 

25 proposed covered settlement. 


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1 ‘‘(ii) DETERMINATION OF RELEVANT

2 STATES AND COUNTIES.—The defendant in 

3 a covered settlement shall consult with 

4 each State described in clause (i) to deter5 mine each county in which the Secretary of 

6 the Interior believes a species occurs. 

7 ‘‘(D) FAILURE TO RESPOND.—The court 

8 may approve a covered settlement or grant a 

9 motion described in subparagraph (B)(ii)(II) if, 

10 not later than 45 days after the date on which 

11 a State or county is notified under subpara12 graph (C)— 

13 ‘‘(i)(I) a State or county fails to re14 spond; and 

15 ‘‘(II) of the States or counties that re16 spond, each State or county approves the 

17 covered settlement; or 

18 ‘‘(ii) all of the States and counties fail 

19 to respond. 

20 ‘‘(E) PROOF OF APPROVAL.—The defend21 ant in a covered settlement shall prove any 

22 State or county approval described in this para23 graph in a form— 

24 ‘‘(i) acceptable to the State or county, 

25 as applicable; and 


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1 ‘‘(ii) signed by the State or county of2 ficial authorized to approve the covered 

3 settlement.’’. 

Æ 


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