which a party may not file a motion 
for a consent decree or to dismiss the 
case pursuant to a settlement agree-
ment. 
‘‘(II) 
REBUTTABLE
PRESUMP-
TION.—In considering a motion to in-
tervene by any affected party, the 
court shall presume, subject to rebut-
tal, that the interests of that party 
would not be represented adequately 
by the parties to the action described 
in clause (i). 
‘‘(iii) REFERRAL
TO
ALTERNATIVE 
DISPUTE
RESOLUTION.—If 
the 
court 
grants a motion to intervene in the action, 
the court shall refer the action to facilitate 
settlement discussions to— 
‘‘(I) the mediation program of 
the court; or 
‘‘(II) a magistrate judge. 
‘‘(iv) PARTIES INCLUDED IN SETTLE-
MENT DISCUSSIONS.—The settlement dis-
cussions described in clause (i) shall in-
clude each plaintiff, defendant agency, and 
intervenor.’’; 
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(2) by striking paragraph (4) and inserting the 
following: 
‘‘(4) LITIGATION COSTS.— 
‘‘(A) IN GENERAL.—Except as provided in 
subparagraph (B), the court, in issuing any 
final order in any suit brought under paragraph 
(1), may award costs of litigation (including 
reasonable attorney and expert witness fees) to 
any party, whenever the court determines such 
award is appropriate. 
‘‘(B) COVERED SETTLEMENT.— 
‘‘(i) CONSENT DECREES.—The court 
shall not award costs of litigation in any 
proposed covered settlement that is a con-
sent decree. 
‘‘(ii) 
OTHER
COVERED
SETTLE-
MENTS.— 
‘‘(I) IN
GENERAL.—For a pro-
posed covered settlement other than a 
consent decree, the court shall ensure 
that the covered settlement does not 
include payment to any plaintiff for 
the costs of litigation. 
‘‘(II) MOTIONS.—The court shall 
not grant any motion, including a mo-
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tion to dismiss, based on the proposed 
covered settlement described in sub-
clause (I) if the covered settlement in-
cludes payment to any plaintiff for the 
costs of litigation.’’; and 
(3) by adding at the end the following: 
‘‘(6) APPROVAL OF COVERED SETTLEMENT.— 
‘‘(A) DEFINITION
OF
SPECIES.—In this 
paragraph, the term ‘species’ means a species 
that is the subject of an action brought under 
paragraph (1)(C). 
‘‘(B) IN GENERAL.— 
‘‘(i) CONSENT DECREES.—The court 
shall not approve a proposed covered set-
tlement that is a consent decree unless 
each State and county in which the Sec-
retary of the Interior believes a species oc-
curs approves the covered settlement. 
‘‘(ii) 
OTHER
COVERED
SETTLE-
MENTS.— 
‘‘(I) IN
GENERAL.—For a pro-
posed covered settlement other than a 
consent decree, the court shall ensure 
that the covered settlement is ap-
proved by each State and county in 
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which the Secretary of the Interior be-
lieves a species occurs. 
‘‘(II) MOTIONS.—The court shall 
not grant any motion, including a mo-
tion to dismiss, based on the proposed 
covered settlement described in sub-
clause (I) unless the covered settle-
ment is approved by each State and 
county in which the Secretary of the 
Interior believes a species occurs. 
‘‘(C) NOTICE.— 
‘‘(i) IN GENERAL.—The Secretary of 
the Interior shall provide each State and 
county in which the Secretary of the Inte-
rior believes a species occurs notice of a 
proposed covered settlement. 
‘‘(ii) DETERMINATION OF RELEVANT 
STATES AND COUNTIES.—The defendant in 
a covered settlement shall consult with 
each State described in clause (i) to deter-
mine each county in which the Secretary of 
the Interior believes a species occurs. 
‘‘(D) FAILURE TO RESPOND.—The court 
may approve a covered settlement or grant a 
motion described in subparagraph (B)(ii)(II) if, 
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not later than 45 days after the date on which 
a State or county is notified under subpara-
graph (C)— 
‘‘(i)(I) a State or county fails to re-
spond; and 
‘‘(II) of the States or counties that re-
spond, each State or county approves the 
covered settlement; or 
‘‘(ii) all of the States and counties fail 
to respond. 
‘‘(E) PROOF OF APPROVAL.—The defend-
ant in a covered settlement shall prove any 
State or county approval described in this para-
graph in a form— 
‘‘(i) acceptable to the State or county, 
as applicable; and 
‘‘(ii) signed by the State or county of-
ficial authorized to approve the covered 
settlement.’’. 
Æ 
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