I 

113TH CONGRESS 

1ST SESSION H. R. 1314 

To amend the Endangered Species Act of 1973 to establish a procedure 

for approval of certain settlements. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 21, 2013 

Mr. FLORES (for himself, Mr. CARTER, Mr. CONAWAY, Mr. THORNBERRY, 

and Mr. PEARCE) introduced the following bill; which was referred to the 

Committee on Natural Resources, and in addition to the Committee on 

the Judiciary, for a period to be subsequently determined by the Speaker, 

in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

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) MOTION TO INTERVENE.— 

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 ALTERNATIVE

14 DISPUTE RESOLUTION.—If the court 

15 grants a motion to intervene in the action, 

16 the court shall refer the action to facilitate 

17 settlement discussions to— 

18 ‘‘(I) the mediation program of 

19 the court; or 

20 ‘‘(II) a magistrate judge. 

21 ‘‘(iv) PARTIES INCLUDED IN SETTLE22 MENT DISCUSSIONS.—The settlement dis23 cussions described in clause (i) shall in24 clude each plaintiff, defendant agency, and 

25 intervenor.’’; 


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

2 following: 

3 ‘‘(4) LITIGATION COSTS.— 

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

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

6 final order in any suit brought under paragraph 

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

8 reasonable attorney and expert witness fees) to 

9 any party, whenever the court determines such 

10 award is appropriate. 

11 ‘‘(B) COVERED SETTLEMENT.— 

12 ‘‘(i) CONSENT DECREES.—The court 

13 shall not award costs of litigation in any 

14 proposed covered settlement that is a con15 sent decree. 

16 ‘‘(ii) OTHER COVERED SETTLE17 MENTS.— 

18 ‘‘(I) IN GENERAL.—For a pro19 posed covered settlement other than a 

20 consent decree, the court shall ensure 

21 that the covered settlement does not 

22 include payment to any plaintiff for 

23 the costs of litigation. 

24 ‘‘(II) MOTIONS.—The court shall 

25 not grant any motion, including a moVerDate Mar 15 2010 05:49 Mar 26, 2013 Jkt 029200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1314.IH H1314

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1 tion to dismiss, based on the proposed 

2 covered settlement described in sub3 clause (I) if the covered settlement in4 cludes payment to any plaintiff for the 

5 costs of litigation.’’; and 

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

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

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

9 paragraph, the term ‘species’ means a species 

10 that is the subject of an action brought under 

11 paragraph (1)(C). 

12 ‘‘(B) IN GENERAL.— 

13 ‘‘(i) CONSENT DECREES.—The court 

14 shall not approve a proposed covered set15 tlement that is a consent decree unless 

16 each State and county in which the Sec17 retary of the Interior believes a species oc18 curs approves the covered settlement. 

19 ‘‘(ii) OTHER COVERED SETTLE20 MENTS.— 

21 ‘‘(I) IN GENERAL.—For a pro22 posed covered settlement other than a 

23 consent decree, the court shall ensure 

24 that the covered settlement is ap25 proved by each State and county in 


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1 which the Secretary of the Interior be2 lieves a species occurs. 

3 ‘‘(II) MOTIONS.—The court shall 

4 not grant any motion, including a mo5 tion to dismiss, based on the proposed 

6 covered settlement described in sub7 clause (I) unless the covered settle8 ment is approved by each State and 

9 county in which the Secretary of the 

10 Interior believes a species occurs. 

11 ‘‘(C) NOTICE.— 

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

13 the Interior shall provide each State and 

14 county in which the Secretary of the Inte15 rior believes a species occurs notice of a 

16 proposed covered settlement. 

17 ‘‘(ii) DETERMINATION OF RELEVANT

18 STATES AND COUNTIES.—The defendant in 

19 a covered settlement shall consult with 

20 each State described in clause (i) to deter21 mine each county in which the Secretary of 

22 the Interior believes a species occurs. 

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

24 may approve a covered settlement or grant a 

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


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1 not later than 45 days after the date on which 

2 a State or county is notified under subpara3 graph (C)— 

4 ‘‘(i)(I) a State or county fails to re5 spond; and 

6 ‘‘(II) of the States or counties that re7 spond, each State or county approves the 

8 covered settlement; or 

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

10 to respond. 

11 ‘‘(E) PROOF OF APPROVAL.—The defend12 ant in a covered settlement shall prove any 

13 State or county approval described in this para14 graph in a form— 

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

16 as applicable; and 

17 ‘‘(ii) signed by the State or county of18 ficial authorized to approve the covered 

19 settlement.’’. 

Æ 


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