II 116th CONGRESS 1st Session S. 1426 IN THE SENATE OF THE UNITED STATES May 13, 2019 Mr. Cornyn (for himself, Mr. Boozman , Mr. Crapo , Mr. Cruz , Mr. Enzi , Mr. Lankford , Mr. Risch , Mr. Sullivan , 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. Definitions Section 3 of the Endangered Species Act of 1973 ( 16 U.S.C. 1532 ) is amended— (1) by redesignating— (A) paragraphs (12) through (21) as paragraphs (13) through (22), respectively; (B) paragraphs (5) through (10) as paragraphs (7) through (12), respectively; and (C) paragraphs (1) through (4) as paragraphs (2) through (5), respectively; (2) by inserting before paragraph (2) (as so redesignated) the following: (1) Affected party The term affected party means any person, including a business entity, or any State, Tribal government, or local subdivision the rights of which may be affected by a determination made under section 4(a) in a suit brought under section 11(g)(1)(C). ; and (3) by inserting after paragraph (5) (as so redesignated) the following: (6) Covered settlement The term covered settlement means a consent decree or a settlement agreement in an action brought under section 11(g)(1)(C). . 2. Intervention; approval of covered settlement Section 11(g) of the Endangered Species Act of 1973 ( 16 U.S.C. 1540(g) ) is amended— (1) in paragraph (3), by adding at the end the following: (C) Publishing complaint; intervention (i) Publishing complaint (I) In general Not later than 30 days after the date on which the plaintiff serves the defendant with the complaint in an action brought under paragraph (1)(C) in accordance with Rule 4 of the Federal Rules of Civil Procedure, the Secretary of the Interior shall publish the complaint in a readily accessible manner, including electronically. (II) Failure to meet deadline The failure of the Secretary to meet the 30-day deadline described in subclause (I) shall not be the basis for an action under paragraph (1)(C). (ii) Intervention (I) In general After the end of the 30-day period described in clause (i), each affected party shall be given a reasonable opportunity to move to intervene in the action described in clause (i), until the end of which a party may not file a motion for a consent decree or to dismiss the case pursuant to a settlement agreement. (II) Rebuttable presumption In considering a motion to intervene by any affected party, the court shall presume, subject to rebuttal, 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 (aa) In general If the court grants a motion to intervene in the action, the court shall refer the action to facilitate settlement discussions to— (AA) the mediation program of the court; or (BB) a magistrate judge. (bb) Parties included in settlement discussions The settlement discussions described in item (aa) shall include each— (AA) plaintiff; (BB) defendant agency; and (CC) intervenor. ; (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 consent decree. (ii) Other covered settlements (I) In general For a proposed 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 motion to dismiss, based on the proposed covered settlement described in subclause (I) if the covered settlement includes 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 settlement that is a consent decree unless each State and county in which the Secretary of the Interior believes a species occurs approves the covered settlement. (ii) Other covered settlements (I) In general For a proposed covered settlement other than a consent decree, the court shall ensure that the covered settlement is approved by each State and county in which the Secretary of the Interior believes a species occurs. (II) Motions The court shall not grant any motion, including a motion to dismiss, based on the proposed covered settlement described in subclause (I) unless the covered settlement 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 Interior 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 determine 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, not later than 45 days after the date on which a State or county is notified under subparagraph (C)— (i) (I) a State or county fails to respond; and (II) of the States or counties that respond, each State or county approves the covered settlement; or (ii) all of the States and counties fail to respond. (E) Proof of approval The defendant in a covered settlement shall prove any State or county approval described in this paragraph in a form— (i) acceptable to the State or county, as applicable; and (ii) signed by the State or county official authorized to approve the covered settlement. .