I
104TH CONGRESS
1ST SESSION
H. R. 2364
To provide incentives for the conservation and recovery of endangered species,
and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
SEPTEMBER 19, 1995
Mr. SHADEGG (for himself, Mr. DELAY, Mr. MCINTOSH, Mr. LARGENT, Mr.
BARTON of Texas, Mrs. CUBIN, Mr. SMITH of Texas, Mr. DOOLITTLE,
Mr. STUMP, and Mr. RADANOVICH) introduced the following bill; which
was referred to the Committee on Resources, and in addition to the Com-
mittees on the Judiciary and Ways and Means, for a period to be subse-
quently determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
A BILL
To provide incentives for the conservation and recovery of
endangered species, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Endangered Species
Recovery and Conservation Incentive Act of 1995’’.
SEC. 2. FINDINGS AND PURPOSES.
(a) FINDINGS.—The Congress finds and declares
that—
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(1) the United States has a unique and remark-
able natural heritage rich in fish, wildlife, and plants
that the people of the United States wish to conserve
for the well-being and benefit of future generations;
(2) in numerous instances we have successfully
demonstrated the ability to restore, improve, and ef-
fectively manage natural resources including fish,
wildlife, plants, and habitat;
(3) the United States has done so because of
the creativity and ingenuity of our single greatest re-
source, our people;
(4) successful conservation programs must en-
courage private stewardship through voluntary, in-
centive-based programs to enlist the cooperation of
owners of private property and invigorate their con-
servation ethic;
(5) successful conservation efforts encourage
conservation through commerce, including the pri-
vate propagation of animals and plants, to take ad-
vantage of the resourceful, creative and energetic
abilities of the people of the United States;
(6) the primary responsibility for conservation
of fish, wildlife, and plants, including those which
are endangered, rests with the States;
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(7) Federal conservation efforts will only be
successful if the sanctity of property rights and per-
petuation of vigorous human enterprise are ensured;
(8) effective Federal conservation efforts shall
ensure the wise use of the vast Federal estate to en-
sure a continuous supply of resources critical to the
people of the United States while ensuring these re-
sources are available for future generations;
(9) Federal conservation actions should incur
the lowest cost possible to citizens and taxpayers
and ensure efficient use of scarce conservation re-
sources;
(10) the United States should provide incen-
tives for State, local, and private conservation efforts
to enable and assist the State, local governments,
and private sectors to create, maintain, and imple-
ment effective endangered species programs and
should affirmatively intervene in fish, wildlife, and
plant recovery conservation efforts where there is a
direct and substantial effect on interstate commerce
and State, local and private efforts have proven inef-
fective;
(11) the constitutionally recognized rights
should be protected and accounted for in carrying
out the purposes and provisions of this Act;
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(12) the costs of programs which benefit society
as a whole should not be borne by individuals but
should be shared equally by the public which benefits
from those programs; and
(13) the provisions of this Act and the actions
authorized herein are consistent with and meet the
obligations imposed by all duly adopted and valid
international treaties and agreements to which the
United States is a party as of the date of enactment
hereof.
(b) PURPOSES.—The purposes of this Act are to—
(1) provide conservation and recovery, in those
cases where it is feasible to recover endangered spe-
cies, and therefore conserve biodiversity;
(2) ensure that the needs and rights of people
are accounted for in decisionmaking pertaining to
endangered species recovery and conservation;
(3) ensure that determination of species as en-
dangered, recovery and conservation efforts and de-
cisions are made only upon valid factual and sci-
entific bases; and
(4) to provide incentives for the recovery and
conservation of endangered species.
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SEC. 3. DEFINITIONS.
For the purposes of this Act, the following definitions
apply:
(1) The term ‘‘animal’’ means any wild species,
subspecies, or distinct population of fish or wildlife
or any viable egg thereof or any parts thereof ob-
tained in violation of this Act. The term animal shall
not include any privately owned specimen, eggs, part
or products thereof, nor shall it include any micro-
organism.
(2) The term ‘‘plant’’ includes any wild species,
subspecies, or distinct population of plant and any
viable seed, root or part thereof obtained in violation
of this Act. The term plant shall not include any pri-
vately owned specimens, seed, root, part or products
thereof, nor shall it include any microorganism.
(3) The term ‘‘endangered,’’ with respect to a
wild animal or a wild plant, means a species has
been determined by the Secretary under section 5 to
be in imminent danger of extinction or likely to be-
come in danger of extinction throughout all or a sig-
nificant portion of its range other than a species de-
termined by the Secretary to constitute a pest whose
protection under the provisions of this Act would
present a substantial risk to man.
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(4) Except as otherwise provided herein, the
term ‘‘injure’’ means, with respect to a member of
an endangered species, an action which directly re-
sults in physical harm which will significantly reduce
the member’s chance of survival other than an in-
jury brought about as an unintended consequence of
habitat modification or alteration.
(5) The terms ‘‘conserve,’’ ‘‘conserving,’’ and
‘‘conservation’’ mean to take actions to improve a
negative trend in or to stabilize the condition of an
endangered species, including all activities associated
with resources management such as habitat manage-
ment and alteration, habitat acquisition, propaga-
tion, harvest, cultivation, live trapping, transplan-
tation, census, research, and technical assistance
and support.
(6) The term ‘‘State’’ means any of the several
States, the District of Columbia, the Commonwealth
of Puerto Rico, American Samoa, the Virgin islands
and the Pacific islands under United States sov-
ereignty.
(7) The term ‘‘State agency’’ means any agen-
cy, department, board, commission, or other govern-
mental agency or other entity designated by the leg-
islative body of the State to have responsibility for
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the management and conservation for fish, wildlife,
or plant resources within the State: Provided, how-
ever, That the legislative body of the State shall de-
termine which agency shall carry out the responsibil-
ities assigned to State agencies under this Act and
to what extent each such agency shall act pursuant
thereto.
(8) The term ‘‘Secretary’’, except as otherwise
herein provided, means the Secretary of the Interior
or the Secretary of Commerce as program respon-
sibilities are vested pursuant to the provisions of Re-
organization Plan Numbered 4 of 1970; except that
with respect to the enforcement of the provisions of
this Act and the Convention on International Trade
in Endangered Species of Wild Fauna and Flora
signed on March 3, 1973, (including the appendices
thereto) which pertain to the importation or expor-
tation of terrestrial plants, the term also means the
Secretary of Agriculture.
(9) The term ‘‘Federal agency’’ means any de-
partment, agency, Government corporation or instru-
mentality of the United States.
(10)(A) The term ‘‘person’’ means—
(i) an individual, corporation, partnership,
trust, association, or other private entity;
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(ii) any State, municipality, or political
subdivision of a State;
(iii) any officer, employee, agent, agency,
department or instrumentality of the Federal
Government, of any State, municipality, or po-
litical subdivision of a State, or of any foreign
government; and
(iv) any other entity subject to the jurisdic-
tion of the United States.
(B) The term ‘‘non-Federal person’’ means—
(i) a person described in subparagraph (A)
(i), (ii), or (iv); and
(ii) any officer, employee, agent, agency,
department or instrumentality of any State,
municipality, political subdivision of a State,
foreign government, or Indian tribe.
(11) The term ‘‘vertebrate species’’ means any
member of the sub-phylum vertebrata including any
mammal, bird, reptile, amphibian, or fish.
(12) The term ‘‘recover’’ means to improve the
condition of an endangered species to the point at
which it is no longer endangered within the meaning
of this Act.
(13) The term ‘‘net benefit’’ means an action
which, on its own or in the context of other actions,
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contributes to furthering the conservation of an en-
dangered species.
(14) The term ‘‘feasible’’ means determined by
the Secretary to be attainable when biological, cli-
matic, technical, economic, budgetary, legal, social,
and other limiting factors have been taken into con-
sideration.
(15) The term ‘‘trespassing’’ means entering
into privately owned land without the consent of the
landowner including any person having a possessory
interest in said land except where expressly per-
mitted by State or local law: Provided, That said
landowner may consent to said entry after the fact.
(16) The term ‘‘shall’’ means mandatory.
(17) The term ‘‘may’’ means precatory.
(18) The term ‘‘habitat’’ means the geographic
area which contains the factors necessary for an en-
dangered species to carry out its range of life and
reproductive functions and which presently supports
a viable population of the animal or plant.
(19) The term ‘‘property’’ means all property
protected under the fifth amendment to the Con-
stitution of the United States, any applicable Fed-
eral or State law and includes without limitation:
real property or any interest therein; the right to use
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or receive water; rents, issues and profits of land;
contracts; property provided by or memorialized in
contracts; and any interest understood to be prop-
erty based on custom, usage, common law, or mutu-
ally reinforcing understandings sufficiently well-
grounded in law to back a claim of interest.
(20) The term ‘‘endangered species’’ means any
animal or plant that has been determined to be en-
dangered by the Secretary in accordance with sec-
tion 5 and any species that on the date of enactment
of this Act is included in a list published under sec-
tion 4(C) of the Endangered Species Act of 1973
(16 U.S.C. 1533(C)).
SEC. 4. RECOVERY.
(a) RECOVERY PLANS AND STATEMENTS.—The Sec-
retary shall within 2 years after the listing of an animal
or plant as endangered under section 5 develop a plan for
the conservation or recovery of the endangered species, un-
less he finds that such a plan will not promote the con-
servation or recovery of the endangered species, in which
case he shall develop a conservation or recovery statement.
(1) PLANS.—The Secretary, in developing and
implementing plans, shall, to the maximum extent
practicable give priority to those endangered species
that are most likely to benefit from such plans and
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give priority to those endangered species that are
more genetically complex, taxonomically unique or
ecologically, medicinally or economically valuable.
The Secretary shall incorporate in the plan for an
endangered species—
(A) a description of such site-specific man-
agement actions as may be necessary to achieve
the plan’s goal for the conservation or recovery
of the endangered species;
(B) objective, measurable, and feasible cri-
teria which, if met, would result in a determina-
tion, in accordance with the provisions of sec-
tion 5, that the endangered species be removed
from the list published under that section in the
instances where this is determined to be feasible
in accord with section 5;
(C) estimates of the time required and the
cost to carry out those measures needed to
achieve the plan’s goal and to achieve inter-
mediate steps toward that goal;
(D) population goals for conservation or
recovery of the endangered species and the
bases for establishing the stated goals;
(E) estimates of the endangered species
present population and distribution;
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(F) identifiable social and economic bene-
fits of conserving the endangered species; and
(G) a description of the animals or plants
of the same species or sub-genus and the status
of those animals and plants including distribu-
tion and population and the reliability and va-
lidity of such data.
(2) STATEMENTS.—For those endangered spe-
cies for which the Secretary chooses not to develop
and implement a plan, the Secretary shall develop a
conservation or recovery statement. The Secretary,
in developing statements shall give priority to those
endangered species which are more genetically com-
plex, taxonomically unique or ecologically, medici-
nally and economically valuable. The Secretary shall,
to the maximum extent practicable, incorporate in
each statement the matters specified in subpara-
graphs (B) through (G) of paragraph 1.
(3) PUBLIC
COMMENT.—Within 18 months
after the date of listing an animal or plant as endan-
gered the Secretary shall make available for public
comment for a period of at least 90 days a draft of
a plan or a statement for the endangered species
by—
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(A) publishing a notice of the draft of a
plan or a statement in a newspaper of general
circulation in each area of the United States in
which the animal or plant is believed to occur,
information on how to obtain a copy and in-
structions for submitting comments or request-
ing a public hearing;
(B) providing information on how to obtain
a copy and instructions for submitting com-
ments or for requesting a public hearing to—
(i) each State or county or equivalent
jurisdiction in which the endangered spe-
cies is believed to occur;
(ii) insofar as practical, and in co-
operation with the Secretary of State, each
foreign nation in which the animal or plant
is believed to occur or whose citizens har-
vest the animal or plant on the high seas;
(iii) such professional scientific orga-
nizations or individuals as the Secretary
considers appropriate; and
(iv) each owner of property on which
the endangered species is believed to occur,
where reasonably feasible to provide such
individual notice.
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(C) promptly holding, on request, one or
more public hearings on the draft plan or state-
ment at a location reasonably convenient to the
affected public, if any affected person files a re-
quest for such a hearing within 45 days after
the date of publication of notice of the draft
plan; and
(D) in addition the Secretary shall provide
a copy of the draft plan or statement to any
person requesting a copy. The Secretary shall
not charge any person requesting a copy of the
plan or statement for the cost of providing said
copy if the person requesting the copy certifies
that the requester is an owner of property on
which the endangered species may exist, is a
representative of an owner or owners of such
property or is a person who may be directly or
substantially affected by the existence of the en-
dangered species.
(4) PLAN AND STATEMENT APPROVAL.—After
taking comments submitted in accordance with this
subsection, the Secretary shall amend the draft plan
or statement if necessary and then approve the plan
or statement.
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(5) PUBLIC NOTIFICATION.—Upon approval of
the plan the Secretary shall—
(A) publish in the Federal Register a sum-
mary of the plan or statement and information
on how to obtain a copy;
(B) provide without charge a copy of the
plan or statement, or information on how to ob-
tain a copy to those who submitted comments
or requested a copy or public hearing under
paragraph (3); and
(C) publish a notice of the approved plan
or statement in a newspaper of general circula-
tion in each area of the United States in which
the animal or plant is believed to occur and in-
formation on how to obtain a copy.
(6) AMENDMENT.—The Secretary may amend
an approved plan through the rulemaking process.
(7) OUTSIDE ASSISTANCE.—The Secretary, in
developing plans or statements, may procure the
services, through the use of a competitive bidding
process or other means, of appropriate public and
private agencies and institutions, and other persons.
(8) FEDERAL ADVISORY COMMITTEE ACT.—Re-
covery teams appointed pursuant to this subsection
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shall be subject to the Federal Advisory Committee
Act (5 U.S.C. App.).
(b) RECOVERY MANAGEMENT.—
(1) 
TECHNICAL
ASSISTANCE, 
VOLUNTARY
AGREEMENTS, CONSERVATION THROUGH COMMERCE
AND
OTHER
MEASURES.—If the Secretary deter-
mines that it will contribute to the conservation or
recovery of an endangered species, the Secretary
may provide scientific, technical, administrative or
financial assistance to private, State or lesser gov-
ernment entities to—
(A) establish voluntary agreements with
land owners who are non-Federal persons, of up
to 25 years in duration, to improve, maintain or
create habitat for endangered species;
(B) promote conservation through com-
merce, including the private propagation of en-
dangered species and the private use of endan-
gered species when such use results in a net
benefit to said species, by providing assistance
to, entering into agreements with or otherwise
encouraging for-profit and not-for-profit compa-
nies, organizations, and individuals involved in
such activities;
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(C) subject to the availability of appropria-
tions, acquire property from willing sellers; and
(D) take other nonregulatory conservation
or recovery measures.
(2) MONITORING.—The Secretary may monitor
the success of voluntary agreements and other vol-
untary efforts under this section in conserving and
recovering endangered species.
(3) OTHER
REQUIRED
ACTIONS.—The Sec-
retary shall—
(A) establish a system of awards and re-
wards for participation in voluntary, cooperative
programs that further the conservation or re-
covery of endangered species; and
(B) maintain a database of information
valuable to the conservation of endangered spe-
cies which shall be accessible to the public.
(4) STATE COOPERATION.—The Secretary, sub-
ject to the availability of appropriations, may, with
any State or States, enter into a cooperative agree-
ment that is designed to directly further the man-
agement of endangered species or their habitat and
thereby promote the conservation or recovery of such
endangered species through the provision of sci-
entific, technical or managerial assistance or through
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the provision of contracts. Any contract which the
Secretary awards under this paragraph shall stipu-
late that the recipient State shall provide the Sec-
retary with the information relevant to the State for
purposes of section 5.
(c) FEDERAL COOPERATION.—The Secretary may
provide scientific, technical or administrative assistance to
other Federal agencies for the purpose of directly further-
ing the conservation or recovery of endangered species in-
cluding—
(1) the adoption of memoranda of understand-
ing or memoranda of agreement;
(2) the establishment of formal or informal
working groups, task forces or other such entities
which—
(A) may include representatives of State,
local, or other government entities or other non-
Federal persons; and
(B) which shall be advisory committees
within the meaning of the Federal Advisory
Committee Act (5 U.S.C. app.); and
(3) other non-regulatory conservation or recov-
ery management activities.
(d) SECRETARIAL ASSESSMENT OF MAJOR FEDERAL
PROJECTS.—
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(1) IN GENERAL.—The Secretary shall—
(A) assess whether any major Federal
project will directly and significantly reduce the
likelihood that an endangered species may be
conserved or recovered; and
(B) transmit the findings of that assess-
ment to the head of the Federal agency con-
ducting the major Federal project and the Con-
gress.
(2) MAJOR FEDERAL PROJECT DEFINED.—For
the purposes of this subsection, the term ‘‘major
Federal project’’ means any individual Federal un-
dertaking, permit, or license directly resulting in a
Federal expenditure of more than $2,000,000.
(e) EMERGENCY MEASURES.—
(1) INITIAL INJUNCTION.—The Secretary may
bring an action to enjoin, for up to 45 days, any ac-
tivity which the Secretary can reasonably dem-
onstrate to destroy an endangered species or its
habitat. During the period of such an injunction, the
Secretary may negotiate a conservation management
or other agreement beneficial to the endangered spe-
cies with the owner of the property on which the ac-
tivity will be conducted.
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(2) ADDITIONAL
INJUNCTION.—If during the
period of an injunction under paragraph (1) at-
tempts to negotiate a voluntary conservation agree-
ment with the property owner are unsuccessful, the
Secretary may bring no more than one additional ac-
tion to enjoin the activity for up to an additional 45
days. During the period of such an injunction, the
Secretary may—
(A) continue negotiations;
(B) collect or capture the endangered spe-
cies on the property and translocate them to
another site within 90 days after filing of the
action for the first injunction if the Secretary—
(i) makes a reasonable effort to gain
the property owner’s written, informed
consent to enter the property and gives the
property owner at least 48 hours notice of
intent to enter the property; and
(ii) inflicts the minimal damage, dis-
turbance, annoyance, or nuisance nec-
essary; or
(C) seek to purchase the property under
subsection (f).
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(3) LIMITATION ON INJUNCTIONS.—Except by
consent of the property owner the Secretary may
not—
(A) subject a property to an injunction
under paragraph (1) more than one time in any
10-year period or extend any injunction beyond
the originally specified period herein.
(4) ORDERS TO COLLECT AND REMOVE.—The
Secretary may seek an order for express and sole
purpose of expeditiously and with minimal intrusion
and interruption entering a property to capture or
collect and remove endangered species based upon
reasonable belief that said endangered species, un-
less removed from the property, face imminent dam-
age or destruction.
(5) COMPENSATION FOR DAMAGE OR LOSS DUE
TO ENTRY.—The United States Government shall be
liable to a property owner for all damages and losses
incurred by the property owner as a result of any
entry of the property under paragraph (2)(B) or (4).
(f) ACQUISITION OF PROPERTY.—
(1) Prior to any purchase or other acquisition
of property or property interest pursuant to this Act,
the Secretary shall make reasonable efforts to reach
an agreement with the property owner for an ex-
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change of said property for property owned by the
United States of like value. If such agreement is ob-
tained, the Secretary shall present the agreement to
Congress for approval as required by law.
(2) Property acquired pursuant to this Act shall
be appraised for the purposes of that acquisition
without regard to the presence of endangered spe-
cies.
(g) MONITORING.—The Secretary may monitor the
success of voluntary agreements and other voluntary ef-
forts under this section in conserving and recovering en-
dangered species.
SEC. 5. DETERMINATION OF ENDANGERED ANIMALS AND
PLANTS, LISTING AND REPORTING.
(a) DETERMINATION.—
(1) IN GENERAL.—The Secretary, at such times
the Secretary considers appropriate and by regula-
tion promulgated in accordance with subsection (b),
may determine whether any animal or plant is en-
dangered based on any of the following factors:
(A) The present or imminent destruction,
adverse modification, or curtailment of a sig-
nificant portion of its habitat or range.
(B) Disease or predation.
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Federal expenditures on endangered species by year
and as a running total;
(6) an accounting on an animal by animal and
plant by plant basis of each State’s reasonably iden-
tifiable expenditures on endangered species by year
and as a running total, including expenditures by
agencies other than those with primary responsibility
for endangered species;
(7) to the extent practicable, an accounting on
an animal by animal or a plant by plant basis of all
reasonably identifiable private expenditures on en-
dangered species by year and as a running total; and
(8) an accounting of other expenditures by Fed-
eral, State, or private persons that resulted from
this Act and that are not attributable to a specific
endangered species.
SEC. 6. PROHIBITIONS, PENALTIES, AND EXCEPTIONS.
(a) INTENTIONAL KILLING
OR INJURING VIOLA-
TION.—It is unlawful for any person to directly and inten-
tionally kill or directly and intentionally physically injure
a member of any vertebrate species and which is properly
included in the list published under section 5(e), except
that uses of endangered species, including but not limited
to hunting, fishing, captive propagation, and harvesting