II 

116TH CONGRESS 

1ST SESSION S. 1899 

To authorize the United States Fish and Wildlife Service to seek compensation for injuries to trust resources and to use funds received as that 

compensation to restore, replace, or acquire equivalent resources, and 

for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 19, 2019 

Mr. CARDIN (for himself and Mr. GARDNER) introduced the following bill; 

which was read twice and referred to the Committee on Environment and 

Public Works 

A BILL 

To authorize the United States Fish and Wildlife Service 

to seek compensation for injuries to trust resources and 

to use funds received as that compensation to restore, 

replace, or acquire equivalent resources, and for other 

purposes. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Refuge System Protec5 tion Act’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 


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•S 1899 IS

1 (1) DAMAGES.—The term ‘‘damages’’ in2 cludes— 

3 (A) compensation for— 

4 (i)(I) the cost of replacing, restoring, 

5 or acquiring the equivalent of a system re6 source; and 

7 (II) the value of any significant loss of 

8 use of a system resource, pending— 

9 (aa) restoration or replacement 

10 of the system resource; or 

11 (bb) the acquisition of an equiva12 lent resource; or 

13 (ii) the value of a system resource, if 

14 the system resource cannot be replaced or 

15 restored; and 

16 (B) the cost of any relevant damage as17 sessment carried out pursuant to section 4(c). 

18 (2) RESPONSE COST.—The term ‘‘response 

19 cost’’ means the cost of any action carried out by 

20 the Secretary— 

21 (A) to prevent, minimize, or abate the de22 struction or loss of, or injury to, a system re23 source; 


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1 (B) to abate or minimize the imminent risk 

2 of any destruction, loss, or injury described in 

3 subparagraph (A); or 

4 (C) to monitor the ongoing effects of any 

5 incident causing any destruction, loss, or injury 

6 described in subparagraph (A). 

7 (3) SECRETARY.—The term ‘‘Secretary’’ means 

8 the Secretary of the Interior. 

9 (4) SYSTEM RESOURCE.—The term ‘‘system re10 source’’ means any living, nonliving, historical, cul11 tural, or archeological resource that is located within 

12 the boundaries of— 

13 (A) a unit of the National Wildlife Refuge 

14 System; 

15 (B) a unit of the National Fish Hatchery 

16 System; or 

17 (C) any other land or water managed by 

18 the Director of the United States Fish and 

19 Wildlife Service, including any land or water 

20 managed cooperatively with any other Federal 

21 or State agency. 

22 SEC. 3. ACTIONS. 

23 (a) IN GENERAL.—The Attorney General, on request 

24 of the Secretary, may bring in the district court of the 

25 United States of appropriate jurisdiction— 


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1 (1) a civil action against any individual or enti2 ty that— 

3 (A) destroys, causes the loss of, or injures 

4 any system resource; or 

5 (B) causes the Secretary to carry out any 

6 action to prevent, minimize, or abate the de7 struction or loss of, or injury or risk to, any 

8 system resource; or 

9 (2) an in rem action against any instrumen10 tality (including a vessel, vehicle, aircraft, or other 

11 equipment or mechanism) that— 

12 (A) destroys, causes the loss of, or injures 

13 any system resource; or 

14 (B) causes the Secretary to carry out any 

15 action to prevent, minimize, or abate destruc16 tion or loss of, or injury or risk to, a system re17 source. 

18 (b) AFFIRMATIVE DEFENSES.—It shall be an affirm19 ative defense in an action under subsection (a) that— 

20 (1) the applicable destruction or loss of, or in21 jury to, the system resource was caused by an other22 wise legal act or omission that occurred outside of 

23 the boundaries of the system resource; 

24 (2) the applicable destruction or loss of, or in25 jury to, the system resource was caused by an activVerDate Sep 11 2014 02:02 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1899.IS S1899

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1 ity performed in accordance with Federal, State, or 

2 local law, regulation, or court order; 

3 (3) the applicable destruction or loss of, or in4 jury to, the system resource was caused solely by an 

5 act of God or an act of war; 

6 (4)(A) the applicable individual, entity, or in7 strumentality exercised due care; and 

8 (B) the applicable destruction or loss of, or in9 jury to, the system resource was caused solely by an 

10 act or omission of a third party, other than an em11 ployee or agent of the individual, entity, or instru12 mentality; or 

13 (5)(A) the applicable destruction or loss of, or 

14 injury to, the system resource was caused by an in15 dividual, entity, or instrumentality, including an em16 ployee or agent of the individual, entity, or instru17 mentality, acting in physical self-defense or defense 

18 of others against physical harm; and 

19 (B) the physical defense was— 

20 (i) reasonably necessary; 

21 (ii) without reasonable alternative; and 

22 (iii) not excessive under the circumstances. 

23 (c) DAMAGES.—In an action under subsection (a), 

24 the court may award response costs and damages resulting 


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1 from the applicable destruction or loss of, or injury to, 

2 the system resource. 

3 (d) ADMINISTRATIVE ACTIONS FOR RESPONSE

4 COSTS AND DAMAGES.— 

5 (1) ACTION BY SECRETARY.— 

6 (A) IN GENERAL.—Subject to paragraph 

7 (2), the Secretary, after making a finding de8 scribed in subparagraph (B), may consider, 

9 compromise, and settle a claim for response 

10 costs and damages if the claim has not been re11 ferred to the Attorney General under subsection 

12 (a). 

13 (B) DESCRIPTION OF FINDINGS.—A find14 ing referred to in subparagraph (A) is a finding 

15 that— 

16 (i) destruction or loss of, or injury to, 

17 a system resource has occurred; or 

18 (ii) that destruction, loss, or injury 

19 would occur absent an action by the Sec20 retary to prevent, minimize, or abate the 

21 destruction, loss, or injury. 

22 (2) REQUIREMENT.—In any case in which the 

23 total amount to be recovered in an action under sub24 section (a) may exceed $500,000 (excluding inter25 est), a claim may be compromised and settled under 


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1 paragraph (1) only with the prior written approval 

2 of the Attorney General. 

3 (e) RESPONSE ACTIONS, ASSESSMENTS OF DAM4 AGES, AND INJUNCTIVE RELIEF.— 

5 (1) IN GENERAL.—The Secretary may carry out 

6 any necessary action (including making a request to 

7 the Attorney General to seek injunctive relief)— 

8 (A) to prevent, minimize, or abate the de9 struction or loss of, or injury to, a system re10 source; or 

11 (B) to abate or minimize the imminent risk 

12 of that destruction, loss, or injury. 

13 (2) ASSESSMENT AND MONITORING.— 

14 (A) IN GENERAL.—The Secretary may as15 sess and monitor the destruction or loss of, or 

16 injury to, any system resource for purposes of 

17 paragraph (1). 

18 (B) JUDICIAL REVIEW.—Any determina19 tion or assessment of damage to a system re20 source carried out under subparagraph (A) 

21 shall be subject to judicial review under sub22 chapter II of chapter 5, and chapter 7, of title 

23 5, United States Code (commonly known as the 

24 ‘‘Administrative Procedure Act’’), on the basis 


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1 of the administrative record developed by the 

2 Secretary. 

3 (f) SCOPE.—The liability established by this section 

4 shall be in addition to any other liability arising under 

5 Federal or State law. 

6 SEC. 4. USE OF RECOVERED AMOUNTS. 

7 (a) IN GENERAL.—An amount equal to the total 

8 amount of the response costs and damages recovered by 

9 the Secretary under this Act and any amounts recovered 

10 by the Federal Government under any provision of Fed11 eral, State, or local law (including regulations) or other12 wise as a result of the destruction or loss of, or injury 

13 to, any system resource shall be made available to the Sec14 retary, without further appropriation, for use in accord15 ance with subsection (b). 

16 (b) USE.—The Secretary may use amounts made 

17 available under subsection (a) only, in accordance with ap18 plicable law— 

19 (1) to reimburse response costs and damage as20 sessments carried out pursuant to this Act by the 

21 Secretary or such other Federal agency as the Sec22 retary determines to be appropriate; 

23 (2) to restore, replace, or acquire the equivalent 

24 of a system resource that was destroyed, lost, or in25 jured; or 


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1 (3) to monitor and study the recovery of the 

2 system resources that were destroyed, lost, or in3 jured. 

4 (c) ALLOCATION.—The Secretary shall— 

5 (1) allocate for use under subsection (b) the 

6 amount of response costs and damages recovered 

7 with respect to each system resource and made 

8 available under subsection (a) to the unit, land, or 

9 water described in section 2(4) within which the sys10 tem resource was located at the time of the destruc11 tion, loss, or injury; and 

12 (2) after the allocation under paragraph (1), al13 locate any remaining amounts for such use under 

14 subsection (b) as the Secretary determines to be ap15 propriate. 

16 SEC. 5. DONATIONS. 

17 (a) IN GENERAL.—In addition to any other authority 

18 to accept donations, the Secretary may accept donations 

19 of money or services for expenditure or use to meet ex20 pected, immediate, or ongoing response costs and dam21 ages. 

22 (b) TIMING.—A donation described in subsection (a) 

23 may be expended or used at any time after acceptance of 

24 the donation, without further action by Congress. 


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1 SEC. 6. TRANSFER OF FUNDS FROM NATURAL RESOURCE 

2 DAMAGE ASSESSMENT AND RESTORATION 

3 FUND. 

4 The matter under the heading ‘‘NATURAL RESOURCE

5 DAMAGE ASSESSMENT AND RESTORATION FUND’’ under 

6 the heading ‘‘UNITED STATES FISH AND WILDLIFE

7 SERVICE’’ in title I of the Department of the Interior and 

8 Related Agencies Appropriations Act, 1994 (43 U.S.C. 

9 1474b–1), is amended by striking ‘‘Provided, That’’ and 

10 all that follows through ‘‘activities.’’ and inserting the fol11 lowing: ‘‘Provided, That notwithstanding any other provi12 sion of law, any amounts appropriated or credited during 

13 fiscal year 1992 or any fiscal year thereafter may be trans14 ferred to any account (including through a payment to any 

15 Federal or non-Federal trustee) to carry out a negotiated 

16 legal settlement or other legal action for a restoration ac17 tivity under the Comprehensive Environmental Response, 

18 Compensation, and Liability Act of 1980 (42 U.S.C. 9601 

19 et seq.), the Federal Water Pollution Control Act (33 

20 U.S.C. 1251 et seq.), the Oil Pollution Act of 1990 (33 

21 U.S.C. 2701 et seq.), section 100721 of title 54, United 

22 States Code, or the Refuge System Protection Act: Pro23 vided further, That sums provided by any individual or en24 tity before or after the date of enactment of this Act shall 

25 remain available until expended and shall not be limited 

26 to monetary payments, but may include stocks, bonds, or 


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1 other personal or real property, which may be retained, 

2 liquidated, or otherwise disposed of by the Secretary for 

3 the restoration of injured resources or to conduct any new 

4 damage assessment activity.’’. 

Æ 


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