[House Report 115-1048]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-1048
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ENDANGERED SPECIES TRANSPARENCY AND REASONABLENESS ACT
_______
November 27, 2018.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Bishop of Utah, from the Committee on Natural Resources, submitted
the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 3608]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 3608) to amend the Endangered Species Act of
1973 to require publication on the Internet of the basis for
determinations that species are endangered species or
threatened species, and for other purposes, having considered
the same, report favorably thereon without amendment and
recommend that the bill do pass.
Purpose of the Bill
The purpose of H.R. 3608 is to amend the Endangered Species
Act of 1973 to require publication on the Internet of the basis
for determinations that species are endangered species or
threatened species.
Background and Need for Legislation
The Endangered Species Act
The Endangered Species Act of 1973 (ESA, 16 U.S.C. 1531 et
seq.) sets out the broad goal of conserving and recovering
species facing extinction. The law authorizes federal agencies
to identify imperiled species and list them as either
threatened or endangered, as appropriate.\1\ The law further
requires agencies to take necessary actions to conserve those
species and their habitats.\2\ The Secretary of the Interior,
through the U.S. Fish and Wildlife Service (FWS), has
responsibility for plants, wildlife and inland fisheries. The
Secretary of Commerce, through the National Marine Fisheries
Service (NMFS) is responsible for implementing the ESA with
respect to ocean-going fish and some marine mammals.\3\
Congress made its most significant amendments to ESA in 1978,
1982, and 1988, although the overall framework has remained
essentially unchanged since its original enactment in 1973.\4\
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\1\ 16 U.S.C. 1533.
\2\ Id.
\3\Cong. Research Serv., RL31654, The Endangered Species Act: A
Primer 15 (2016).
\4\ A History of the Endangered Species Act of 1973, U.S. Fish and
Wildlife Service, U.S. Department of the Interior, https://www.fws.gov/
endangered/esa-library/pdf/history_ESA.pdf (last visited Sept. 18,
2018).
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Despite the worthy goal set out by the ESA to conserve and
protect species, in the 45 years since its enactment, less than
2 percent of species have recovered enough to warrant removal
from the list of endangered and threatened species.\5\ In fact,
many of those species were delisted after it was discovered
that federal agencies used erroneous data in the original
listing.\6\ In total, to date there have been 2,421 listings\7\
under the ESA. In that time the Secretaries have delisted 77
species, but only 47 distinct species have been removed, either
entirely or partially throughout their range, due to population
recovery.\8\
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\5\ ECOS Environmental Conservation Online System, Listed Species
Summary (Boxscore), U.S. Fish and Wildlife Service, U.S. Department of
the Interior, https://ecos.fws.gov/ecp0/reports/box-score-report (last
visited Sept. 19, 2018).
\6\ ECOS Environmental Conservation Online System, Delisted
Species, U.S. Fish and Wildlife Service, U.S. Department of the
Interior, https://ecos.fws.gov/ecp0/reports/delisting-
report (last visited Sept. 19, 2018).
\7\ Supra, note 5. This number was determined by adding the total
number of species listed as endangered or threatened under the ESA to
the total number delisted since the ESA's enactment.
\8\Supra, note 6.
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In addition to failing to achieve meaningful recovery for
species, implementation of the ESA disincentivizes conservation
and can lead to increased conflict between people and species
through unpredictable and expansive restrictions on land
use.\9\ Excessive litigation and a lack of transparency in
federal ESA decision-making has only exacerbated these problems
and reduced the ESA's effectiveness in recovering species.\10\
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\9\Committee on House Natural Resources, Endangered Species Act
Congressional Working Group, Report Findings and Recommendations,
(2014) available at https://naturalresources.house.gov/uploadedfiles/
esa_working_group_final_report_ and_recommendations_02_04_14.pdf; See
also: Legislative Hearing on H.R. 424. H.R. 717, H.R. 1274, H.R. 2603,
and H.R. 3131: Hearing before the H. Comm. on Natural Resources, 115th
Cong, (2017) (testimony of Kent Holsinger, Manager and Founder,
Holsinger Law, LLC) available at https://naturalresources.house.gov/
uploadedfiles/testimony_holsinger.pdf.
\10\Hearing on Examining Policy Impacts of Excessive Litigation
Against the Department of the Interior, Before the Subcomm. on
Oversight & Investigations of the H. Comm. on Natural Resources, 115th
Cong. (2017), available at https://naturalresources.house.gov/
uploadedfiles/
hearing_memo_--_ov_hrg_06.28.17.pdf.
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In many cases, implementation of the ESA has caused
increased burdens for those living in close proximity to the
protected species.\11\ Often States and local communities have
the most knowledge about the species located in their State and
can bring the greatest amount of resources to conservation
efforts.\12\ They are eager to stabilize species populations to
prevent listings that can have a major negative economic impact
on State and local communities through restrictions on land
use.\13\ Yet, too often, federal management of threatened and
endangered species fails to take advantage of the wealth of
knowledge of State and local officials and of the successful
conservation measures implemented by States.\14\
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\11\ Supra, note 9.
\12\Legislative Hearing on H.R. 424. H.R. 717, H.R. 1274, H.R.
2603, and H.R. 3131: Hearing before the H. Comm. on Natural Resources,
115th Cong, (2017) (testimony of Kent Holsinger, Manager and Founder,
Holsinger Law, LLC) available at https://naturalresources.house.gov/
uploadedfiles/testimony_holsinger.pdf.
\13\ Id.
\14\See e.g., Letter from John Hickenlooper, Governor, State or
Colorado, and Matt Mead, Governor, State of Wyoming, to Steve Ellis,
Deputy Director, Bureau of Land Management, U.S. Dep't of the Interior,
and Leslie Weldon, Deputy Chief, National Forest System, U.S. Forest
Service, U.S. Dep't of Agriculture, Sept. 29, 2014, available at http:/
/westgov.org/images/editor/LTR_GSG_ Rollup_Mtgs_FINAL.pdf.
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Despite these shortcomings in how the ESA has been
implemented since its enactment, the ESA and its overall goal
of conserving and recovering species remains widely popular and
accepted.\15\ ESA modernization should prioritize effective
species recovery while maintaining the core principles of the
Act.
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\15\ See e.g., Memo from Ben Tulchin, Ben Krompack, and Kiel
Brunner, Tulchin Research, to Interested Parties, Jul. 6, 2015,
available at https://earthjustice.org/sites/default/files/files/
PollingMemoNationalESASurvey.pdf.
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Best scientific and commercial data available
Section 4 of the ESA requires listings be made based on the
best scientific and commercial data available.\16\ Defining
best scientific and commercial data available, as well as the
application of that data by federal agencies and its
availability to the public, is a source of controversy. The
data used to inform ESA policy decisions is a substantial
factor in the total economic cost of the ESA to taxpayers and
has been the basis for costly litigation.\17\
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\16\[ELRS] Science And Deference: The ``Best Available Science''
Mandate is A Fiction in the Ninth Circuit, Harvard Environmental Law
Review (2016), http://harvardelr.com/2016/11/07/elrs-science-and-
deference-the-best-available-science-mandate-is-a-fiction-in-the-ninth-
circuit (last visited Sep 19, 2018); see also: P.J. Sullivan et al.,
Defining and Implementing Best Available Science for Fisheries and
Environmental Science, Policy, and Management, 31 Defining and
Implementing Best Available Science for Fisheries and Environmental
Science, Policy, and Management (2006) available at https://
www.fws.gov/wafwo/fisheries/ Publications/Fisheries3109.pdf (last
visited Sep 19, 2018).
\17\Natalie Lowell & Ryan P. Kelly, Evaluating agency use of ``best
available science'' under
the United States Endangered Species Act, 196 Biological Conservation
53-59 (2016),
https://www.researchgate.net/publication/
295684321_Evaluating_agency_use_of_best_available_
science_under _the_United_States_Endangered_Species_Act (last visited
Sep 19, 2018).
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Currently, most data used to make critical listing
decisions is not readily available to the public. ESA proposed
rules and final ruling are published in the Federal
Register,\18\ which serves as the official public notice.
Finalized listings are publicly available on the FWS
website,\19\ providing the public with access to threatened and
endangered plant and animal species. Although listings are
readily available to the public, the scientific and commercial
data used in making such decisions is generally unavailable.
Testimony from local entities has raised concerns regarding
unavailability of reports used to make controversial listing
decisions.\20\
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\18\Wildlife Service, Listing and Critical HabitatPetition
Process Official Web Page
of the US Fish and Wildlife Service, https://www.fws.gov/endangered/
what-we-do/listing-
petition-process.html (last visited Sep 19, 2018).
\19\Sarah Leon, Find Endangered Species Official Web page of the U
S Fish and Wildlife Service, https://www.fws.gov/endangered/ (last
visited Sep 19, 2018).
\20\Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on Endangered
Species and People: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (testimony of Kent McMullen, Franklin
County Natural Resources Advisory Committee, at 21).
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H.R. 3608 aims to increase transparency by making listing
data available to the public through the Internet. The current
available information only allows the public to see the
aftermath of the decision-making process. This bill will give
taxpayers the ability to view what each agency identifies as
the ``best scientific and commercial data available'' for use
in each ESA listing, prompting agencies to ensure the data used
meets the standards set forth by the ESA.
Use of State, tribal, and local information
Section 6 of the ESA requires federal cooperation with the
States ``to the maximum extent practicable'' in listing
decisions.\21\ Species listings and critical habitat
designations have the potential to impact communities and
industries while placing unnecessary burdens upon State and
local governments. States, tribes, and local governments are
well-equipped to participate in listing decisions in a
productive manner; however, federal cooperation with such
governments does not always occur.
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\21\Endangered Species Act of 1973, 16 U.S.C. 1531 (1973).
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State witnesses have testified that the ESA, as currently
implemented, does not properly honor their ability to
participate to the maximum extent practicable in federal ESA
listing decisions. State witnesses have stated that they are
not made aware of factors used by the federal government in
listing decisions that impact lands, communities, and species
within their borders.\22\ States possess on-the-ground
experience and expertise in managing wildlife as a public asset
and in practical policy application, making them valuable
resources for NMFS and FWS with regard to ESA listings.\23\
State expertise and data must be utilized to better manage ESA
listed species.
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\22\See, The Status of the Federal Government's Management of
Wolves: Hearing Before the H. Comm. on Natural Resources, 114th Cong.
(2016) (States were not included in decisions to introduce and manage
wolf populations in the Southwest, Mid-Atlantic, West, and Great Lakes
regions. Faulty science and implementation caused failure of Red Wolf
program in North Carolina).
\23\See, H.B. 1025, 83rd Legislature (TX 2009) (The Texas
Legislature provided $5 million to the Texas Comptroller's Office to
support high-quality species research through state-funded universities
and continues to provide funding. This has kept species, such as the
Dunes Sagebrush Lizard, off of the Endangered Species List), https://
comptroller.texas.gov/programs/species-economy/. See also, Letter from
Glenn Hegar, Comptroller, State of Texas to the People of Texas (2017)
available at https://comptroller.texas.gov/ programs/species-economy/
letter.php.
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Local governments, particularly those in areas with a
significant portion of federally-owned lands, have expressed
concerns that federal ESA-implementing agencies often ignore
locally generated science.\24\ In more than one case, a court
order has been required to obtain listing data from federal
officials, even though the data was obtained through taxpayer-
funded studies.\25\ Additionally, local entities have raised
the concern that a key document used by the FWS in an ESA
listing determination was an unpublished manuscript that was
inaccessible to the public.\26\
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\24\Defining Species Conservation Success: Tribal, State and Local
Stewardship vs. Federal Courtroom Battles and Sue-and-Settle Practices:
Oversight Hearing Before the H. Comm. On Natural Resources, 113th Cong.
(2013) (written testimony of Tom Jankovsky, Garfield County, Colorado,
at 39), which describes Garfield County, Colorado's questioned the
accuracy of a map developed by the FWS for sage grouse habitat in
Colorado after the federal agency refused its request to verify data
used by the U.S. Fish and Wildlife Service federal report.
\25\Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on Endangered
Species and People: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (testimony of Dr. Ramey, at 27).
\26\Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on Endangered
Species and People: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (testimony of Kent McMullen, Franklin
County Natural Resources Advisory Committee, at 21).
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Tribal governments also play a significant role in species
conservation and recovery activities. Witnesses have testified
that tribal data and science are not factored into ESA listing
decisions. For example, in the Columbia and Snake Rivers, where
13 populations of salmon are listed under the ESA, tribal
hatchery managers have successfully utilized hatchery
supplementation to enhance salmon and steelhead recovery. The
Snake River fall chinook run has rebounded to near-record
levels due in large part to the tribal hatchery programs.\27\
Though a federal court ordered NMFS in 2001 to consider
hatchery salmon in populations proposed for ESA listing, the
agency issued a revised policy that emphasized the ``negative
impacts'' of hatchery fish on naturally spawning fish, and
ignored tribal data highlighting the benefits hatchery fish are
having on recovering salmon.\28\
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\27\Defining Species Conservation Success: Tribal, State and Local
Stewardship vs. Federal Courtroom Battles and Sue-and-Settle Practices:
Oversight Hearing Before the H. Comm. On Natural Resources, 113th Cong.
(2013) (written testimony of N. Kathryn Brigham, Columbia River Inter-
Tribal Fish Commission, at 17).
\28\Trout Unlimited v. Lohn, 559 F.3d 946 (9th Cir. 2009); 70 Fed.
Reg. 37, 204.
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Despite the expertise and willingness of State, local, and
tribal governments to participate in the ESA process, the
Secretaries of the Interior and Commerce are not required to
disclose scientific information or the basis they use in making
listing decisions to these governments. The Secretaries are
also not required to utilize data generated by States, tribes,
or local governments, even though these governments often have
data federal agencies lack.\29\
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\29\See, Western Energy Alliance, Environmental Groups Keep Suing
Despite Vast ESA Settlement Agreements (July 13, 2017), https://
www.westernenergyalliance.org/knowledge-center/legal/sue-and-settle
(FWS settled agreements behind closed doors with WildEarth Guardians
and the Center for Biological Diversity on a combined 878 species in
2011 and the scientific information utilized in the settlement listing
decisions was not made available to the States).
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H.R. 3608 would require FWS and NMFS to be transparent in
their use of data for ESA listing decisions, both with regard
to their ESA section 6 responsibilities and use of valuable
State, local and tribal data to guide listing determinations.
It ensures that States are afforded every opportunity to
provide input on laws, regulations, and policies related to the
implementation of the ESA before such policies are finalized.
This bill would ensure that the best scientific and commercial
data available for ESA listing decisions includes data from
those closest to the ground and most impacted by the listings--
the States, local governments, and tribes.\30\
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\30\John Stroud, Garfield County Protests Sage Grouse Protection
Plan, The Aspen Times, July 8, 2015 at http://www.aspentimes.com/news/
garfield-county-protests-sage-grouse-protection-plan/ (Garfield County,
Co challenged the Northwest Colorado Greater Sage-Grouse management
plan on the basis that the plan fails to recognize habitat differences
in that portion of Colorado, designating critical habitat where the
birds are unable to live. It also challenges the federal failure to
take local and state habitat conservation plans into consideration) and
Garfield County, CO, Comments on the BLM's NW Colorado Greater Sage
Grouse Draft Resource Management Plan and Final Environmental Impact
Statement (May 13, 2015) at https://www.garfield-county.com/community-
development/sage-grouse-resource-management.aspx.
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Disclosure of Expenditures
Federal expenditures associated with implementing and
administering the ESA have long been a contentious issue. Much
of the debate is centered on ESA's ``tremendous costs and
adverse impact on private property owners and effective land
management.''\31\ Enormous economic and regulatory burdens
hinder species conservation, rendering ESA ineffective.\32\ The
Competitive Enterprise Institute (CEI) recently reported that
the overall economic impact of ESA cannot be systematically
analyzed due to the complex nature of the ESA's impact on both
individuals and businesses. All things considered, CEI
estimates that the total cost of implementing ESA over its
lifetime is ``close to hundreds of billions of dollars.''\33\
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\31\Robert Gordon, CEI Report: Endangered Species Act Costs
Billions More than Generally Acknowledged, Government Accounting
Obscures Costs Competitive Enterprise Institute (2018), https://
cei.org/content/cei-report-endangered-species-act-costs-billions-more-
generally-acknowledged-government (last visited Sep 19, 2018).
\32\Endangered Species Act Cong. Working Group, 113th Cong.,
Reports, Findings and Recommendations 32 (2014), available at https://
naturalresources.house.gov/uploadedfiles/
esa_working_group_final_report_and_recommendations_02_04_14.pdf.
\33\Robert Gordon, CEI Report: Endangered Species Act Costs
Billions More than Generally Acknowledged, Government Accounting
Obscures Costs Competitive Enterprise Institute (2018), https://
cei.org/content/cei-report-endangered-species-act-costs-billions-more-
generally-acknowledged-government (last visited Sep 19, 2018).
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To decipher the cost to taxpayers associated with ESA, it
is imperative for the agencies responsible for its
implementation report their spending to Congress. H.R. 3608
requires the creation of an annual expenditure report to be
submitted to the House Natural Resources Committee and Senate
Energy and Natural Resources Committee. Both FWS and NMFS must
report the federal spending for ESA litigation costs for the
previous year. This information will also be publicly available
through an online searchable database. The information
requiredincludes funds spent responding to ESA lawsuits, total number
of full-time employees who participate in ESA lawsuits, and attorneys'
fees associated with ESA litigation and settlement agreements.
Litigation costs under the ESA
Attorneys' fees play a significant role in the enormous
financial burden associated with the ESA. Special interest
attorneys representing environmental groups argue that their
expertise is ``specialized'' to justify substantial, uncapped
fees.\34\ Some special interest attorneys have collected fees
as high as $750 taxpayer dollars per hour.\35\ According to
records from the Department of Justice, at least two such
attorneys have garnered more than $2 million in attorneys' fees
by filing ESA suits.\36\ Further, a review of 141 ESA lawsuits
from 2005 to 2015 show that only ten environmental advocacy
groups accounted for over 80 percent of all ESA settlements
reached during the decade. These ``sue and settle'' ESA cases
cost taxpayers huge amounts in attorneys' fees to fund ongoing
litigation.\37\
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\34\Endangered Species Act Cong. Working Group, 113th Cong.,
Reports, Findings and Recommendations 32 (2014), available at https://
naturalresources.house.gov/uploadedfiles/
esa_working_group_final_report_and_recommendations_02_04_14.pdf.
\35\Jordan Lofthouse, Ryan M. Yonk & Randy T. Simmons, Equal Access
to Justice Act 12, available at http://www.strata.org/wp-content/
uploads/ipePublications/Final-Print.pdf; RaeLynn Ricarte, Taypayers
Foot the Bill of Resource Lawsuits, Dallas Chron., May 13, 2014, http:/
/www.thedalleschronicle.com/news/2014/may/13/taxpayers-foot-bill-
resource-lawsuits/.
\36\Endangered Species Act Cong. Working Group, supra note 6, at
31.
\37\Rob Gordon & Hans A. von Spakovsky, Scott Pruitt Ends an Obama
Administration Abuse of Power, National Review (2017), https://
www.nationalreview.com/2017/10/scott-pruitt-ends-epa-sue-settle-scheme-
obama-administration-abuse-power/ (last visited Sep 19, 2018).
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With environmental groups leading the charge on ``sue and
settle'' cases, it is important to evaluate the cost of
litigation to American taxpayers.\38\ In September 2018, the
Interior Department issued an order to promote transparency and
accountability in consent decrees and settlement
agreements.\39\ The Department plans to establish a publicly
accessible website making available litigation information,
consent decrees, and settlements.
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\38\Millions of Taxpayer Dollars Spent on Endangered Species Act
Litigation and Attorney Fees, House Committee on Natural Resources
(2012), https://naturalresources.house.gov/newsroom/
documentsingle.aspx?DocumentID=299899 (last visited Sep 19, 2018).
\39\Order No. 3368, Promoting Transparency and Accountability in
Consent Decrees and Settlement Agreements, U.S. Dep't of the Interior,
Sept. 11, 2018, available at https://www.doi.gov/sites/doi.gov/files/
elips/documents/so_3368_promoting_transparency_and_accountability_in_
consent_decrees_ and_settlement_agreements.pdf.
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The Equal Access to Justice Act (EAJA) authorizes a
``prevailing party'' to collect attorneys' fees in litigation
against the federal government.\40\ EAJA also provides that
``attorney fees shall not be awarded in excess of $125 per hour
unless the court determines that an increase in the cost of
living or a special factor, such as the limited availability of
qualified attorneys for the proceedings involved, justifies a
higher fee.''\41\
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\40\28 U.S.C. 2412.
\41\28 U.S.C. 2412(d)(2)(A).
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H.R. 3608 would require ESA litigants to abide by the same
rules as others suing the federal government, requiring
plaintiffs to prevail to collect attorneys' fees, as well as
impose the $125 fee cap set by EAJA. Capable environmental
attorneys are no longer a rarity; therefore, uncapped
attorneys' fees are not justified. While this legislation does
not restrict aggrieved parties' ability to seek redress in
court, it removes an incentive for litigious plaintiffs to
request large fee awards. Most importantly, it safeguards
taxpayer dollars against abusive litigation.\42\
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\42\Id. (For example, an attorney representing Center for
Biological Diversity in a lawsuit to block construction of a San Diego
elementary school based on the existence of a fairy shrimp argued that
the ``prevailing San Diego market rate'' for his attorneys' fees was
reasonable due to his special expertise in challenging ESA habitat
conservation plans, vernal pools, and his skill in preparing documents.
He charged more than $400 per hour in the final six years of
litigation, including $450 per hours in the years that the project was
delayed. With his own fees totaling over $150,000, he and two other
attorneys were granted $650,000 in federal funds by the court.
Similarly, in 2012 plaintiffs were awarded $940,000 in legal fees for
litigation between 2000 and 2004, and an additional $950,000 for
litigation between 2004 and 2008 for a case involving Salmon and dams
operated by the Bonneville Power Administration. The plaintiffs'
attorneys' fees included rates of $200 to $350 per hour, as well as
$100 per hour for interns helping with the case. In 2014, three of the
same attorneys representing the involved plaintiffs filed a third
application for attorneys' fees, this time arguing for attorneys' fees
at rates of $500, $475, and $400 per hour. These requested rates more
than doubled in just a few years' time).
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Section-by-Section Analysis
Section 1. Short title
This act may be cited as the Endangered Species
Transparency and Reasonableness Act.
Section 2. Requirement to publish on the Internet the basis for
listings
Section 2 amends section 4 of the ESA to require the
relevant Secretary make the ``best scientific and commercial
data,'' which is the basis for listing determinations, publicly
available on the Internet. If a State determines publishing
online is prohibited by State law, an exception may be made to
withhold publishing on the Internet. Further, the Secretary of
Defense may prohibit publishing on the Internet to prevent
disclosing classified information.
Section 3. Decisional Transparency and Use of State, Tribal, and Local
information
Subsection (a). Requiring Decisional Transparency with
Affected States.
Subsection (a) amends section 6 of the ESA to require the
relevant Secretary to provide all data used in listing
determinations to affected States.
Subsection (b). Ensuring Use of State, Tribal, and Local
Information.
Section (b) ensures FWS and NMFS's use of State, tribal,
and local information in listing decisions by clarifying that
the term ``best scientific and commercial data'' includes all
such data submitted by State, tribal, or local governments that
meets the criteria for ``best scientific and commercial data.''
Section 4. Disclosure of expenditures under Endangered Species Act of
1973
Subsection (a) amends section 13 of the ESA to require FWS
and NMFS to submit to the House Natural Resources Committee and
the Senate Energy and Natural Resources Committee an annual
report outlining federal spending on lawsuits related to ESA.
The report must document funds spent by the federal government
in response to ESA lawsuits, the number of government employees
involved in ESA litigation, and attorney fees paid by the
federal government for litigations and settlements. It also
requires this information be made available on the Internet.
Section 5. Award of litigation costs to prevailing parties in
accordance with existing law
Section 5 amends the ESA by limiting attorney fees to the
$125 per hour cap currently established the EAJA, the same
standard that applies to all other litigation against the
federal government.
Committee Action
H.R. 3608 was introduced on July 28, 2017, by Congressman
Tom McClintock (R-CA). The bill was referred to the Committee
on Natural Resources. On September 26, 2018, the Committee held
a hearing on the bill. On September 27, 2018, the Committee met
to consider the bill. No amendments were offered, and the bill
was ordered favorably reported to the House of Representatives
by a roll call vote of 19 yeas and 12 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Compliance With House Rule XIII and Congressional Budget Act
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 7, 2018.
Hon. Rob Bishop,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3608, the
Endangered Species Transparency and Reasonableness Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Janani
Shankaran.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 3608--Endangered Species Transparency and Reasonableness Act
H.R. 3608 would direct the U.S. Fish and Wildlife Service
(USFWS) and the National Oceanic and Atmospheric Administration
to make the data used as the basis for listing a species for
protection under the Endangered Species Act (ESA) publicly
available. The bill also would require certain agencies (such
as the Forest Service and the Bonneville Power Administration)
to provide information to the USFWS on ESA lawsuits, and would
direct the USFWS to make that information publicly available in
a searchable database. Based on the costs of similar
activities, CBO estimates that implementing the bill would cost
less than $500,000; such spending would be subject to the
availability of appropriated funds.
Enacting H.R. 3608 would affect direct spending; therefore,
pay-as-you-go procedures apply. Under current law, plaintiffs
who challenge the federal government under the ESA may be
entitled to the repayment of attorneys' fees. Such payments are
made from the Judgment Fund, which has a permanent indefinite
appropriation. Section 5 would cap attorney fees awarded under
the ESA to $125 per hour, adjusted for cost of living and other
factors. Based on the amount of attorneys' fees paid to
plaintiffs under the ESA in the past, CBO expects that amounts
awarded to attorneys under the bill would be slightly less than
amounts awarded under current law. In addition, the bill could
affect spending by the Bonneville Power Administration, which
is not funded through annual appropriations acts. On net, CBO
estimates that enacting H.R. 3608 would reduce direct spending
by an insignificant amount. Enacting the bill would not affect
revenues.
CBO estimates that enacting H.R. 3608 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
H.R. 3608 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
On February 12, 2018, CBO transmitted a cost estimate for
H.R. 3131, the Endangered Species Litigation Reasonableness
Act, as ordered reported by the House Committee on Natural
Resources on October 4, 2017. H.R. 3131 is similar to section 5
of H.R. 3608, and CBO' s estimates of the budgetary effects of
those provisions are the same.
The CBO staff contact for this estimate is Janani
Shankaran. The estimate was reviewed by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
2. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to require publication on the
Internet of the basis for determinations that species are
endangered species or threatened species.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Compliance With H. Res. 5
Directed Rule Making. This bill contains no directed
rulemakings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
ENDANGERED SPECIES ACT OF 1973
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That this
Act may be cited as the ``Endangered Species Act of 1973''.
TABLE OF CONTENTS
Sec. 2. Findings, purposes, and policy.
* * * * * * *
[Sec. 13. Conforming amendments.]
Sec. 13. Disclosure of expenditures.
* * * * * * *
definitions
Sec. 3. For the purposes of this Act--
(1) The term ``alternative courses of action'' means all
alternatives and thus is not limited to original project
objectives and agency jurisdiction.
(2) The term ``best scientific and commercial data
available'' includes all such data submitted by a State,
tribal, or county government.
[(2)] (3) The term ``commercial activity'' means all
activities of industry and trade, including, but not limited
to, the buying or selling of commodities and activities
conducted for the purpose of facilitating such buying and
selling: Provided, however, That it does not include
exhibitions of commodities by museums or similar cultural or
historical organizations.
[(3)] (4) The terms ``conserve,''``conserving,'' and
``conservation'' mean to use and the use of all methods and
procedures which are necessary to bring any endangered species
or threatened species to the point at which the measures
provided pursuant to this Act are no longer necessary. Such
methods and procedures include, but are not limited to, all
activities associated with scientific resources management such
as research, census, law enforcement, habitat acquisition and
maintenance, propagation, live trapping, and transplantation,
and, in the extraordinary case where population pressures
within a given ecosystem cannot be otherwise relieved, may
include regulated taking.
[(4)] (5) The term ``Convention'' means the Convention on
International Trade in Endangered Species of Wild Fauna and
Flora, signed on March 3, 1973, and the appendices thereto.
[(5)] (6)(A) The term ``critical habitat'' for a threatened
or endangered species means--
(i) the specific areas within the geographical area
occupied by the species, at the time it is listed in
accordance with the provisions of section 4 of this
Act, on which are found those physical or biological
features (I) essential to the conservation of the
species and (II) which may require special management
considerations or protection; and
(ii) specific areas outside the geographical area
occupied by the species at the time it is listed in
accordance with the provisions of section 4 of this
Act, upon a determination by the Secretary that such
areas are essential for the conservation of the
species.
(B) Critical habitat may be established for those species now
listed as threatened or endangered species for which no
critical habitat has heretofore been established as set forth
in subparagraph (A) of this paragraph.
(C) Except in those circumstances determined by the
Secretary, critical habitat shall not include the entire
geographical area which can be occupied by the threatened or
endangered species.
[(6)] (7) The term ``endangered species'' means any species
which is in danger of extinction throughout all or a
significant portion of its range other than a species of the
Class Insecta determined by the Secretary to constitute a pest
whose protection under the provisions of this Act would present
an overwhelming and overriding risk to man.
[(7)] (8) The term ``Federal agency'' means any department,
agency, or instrumentality of the United States.
[(8)] (9) The term ``fish or wildlife'' means any member of
the animal kingdom, including without limitation any mammal,
fish, bird (including any migratory, nonmigratory, or
endangered bird for which protection is also afforded by treaty
or other international agreement), amphibian, reptile, mollusk,
crustacean, arthropod or other invertebrate, and includes any
part, product, egg, or offspring thereof, or the dead body or
parts thereof.
[(9)] (10) The term ``foreign commerce'' includes, among
other things, any transaction--
(A) between persons within one foreign country;
(B) between persons in two or more foreign countries;
(C) between a person within the United States and a
person in a foreign country; or
(D) between persons within the United States, where
the fish and wildlife in question are moving in any
country or countries outside the United States.
[(10)] (11) The term ``import'' means to land on, bring into,
or introduce into or attempt to land on, bring into, or
introduce into, any place subject to the jurisdiction of the
United States, whether or not such landing, bringing, or
introduction constitutes an importation within the meaning of
the customs laws of the United States.
[(12)] (13) The term ``permit or license applicant'' means,
when used with respect to an action of a Federal agency for
which exemption is sought under section 7, any person whose
application to such agency for a permit or license has been
denied primarily because of the application of section 7(a) to
such agency action.
[(13)] (14) The term ``person'' means an individual,
corporation, partnership, trust, association, or any other
private entity; or any officer, employee, agent, department, or
instrumentality of the Federal Government, of any State,
municipality, or political subdivision of a State, or of any
foreign government; any State, municipality, or political
subdivision of a State; or any other entity subject to the
jurisdiction of the United States.
[(14)] (15) The term ``plant'' means any member of the plant
kingdom, including seeds, roots and other parts thereof.
[(15)] (16) The term ``Secretary'' means, except as otherwise
herein provided, the Secretary of the Interior or the Secretary
of Commerce as program responsibilities are vested pursuant to
the provisions of Reorganization Plan Numbered 4 of 1970;
except that with respect to the enforcement of the provisions
of this Act and the Convention which pertain to the importation
or exportation of terrestrial plants, the term also means the
Secretary of Agriculture.
[(16)] (17) The term ``species'' includes any subspecies of
fish or wildlife or plants, and any distinct population segment
of any species of vertebrate fish or wildlife which interbreeds
when mature.
[(17)] (18) The term ``State'' means any of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, American Samoa, the Virgin Islands, Guam, and the Trust
Territory of the Pacific Islands.
[(18)] (19) The term ``State agency'' means any State agency,
department, board, commission, or other governmental entity
which is responsible for the management and conservation of
fish, plant, or wildlife resources within a State.
[(19)] (20) The term ``take'' means to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or to
attempt to engage in any such conduct.
[(20)] (21) The term ``threatened species'' means any species
which is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of
its range.
[(21)] (22) The term ``United States,'' when used in a
geographical context, includes all States.
determination of endangered species and threatened species
Sec. 4. (a) General.--(1) The Secretary shall by regulation
promulgated in accordance with subsection (b) determine whether
any species is an endangered species or a threatened species
because of any of the following factors:
(A) the present or threatened destruction,
modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational,
scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms;
or
(E) other natural or manmade factors affecting its
continued existence.
(2) With respect to any species over which program
responsibilities have been vested in the Secretary of Commerce
pursuant to Reorganization Plan Numbered 4 of 1970--
(A) in any case in which the Secretary of Commerce
determines that such species should--
(i) be listed as an endangered species or a
threatened species, or
(ii) be changed in status from a threatened
species to an endangered species, he shall so
inform the Secretary of the Interior, who shall
list such species in accordance with this
section;
(B) in any case in which the Secretary of Commerce
determines that such species should--
(i) be removed from any list published
pursuant to subsection (c) of this section, or
(ii) be changed in status from an endangered
species to a threatened species, he shall
recommend such action to the Secretary of the
Interior, and the Secretary of the Interior, if
he concurs in the recommendation, shall
implement such action; and
(C) the Secretary of the Interior may not list or
remove from any list any such species, and may not
change the status of any such species which are listed,
without a prior favorable determination made pursuant
to this section by the Secretary of Commerce.
(3)(A) The Secretary, by regulation promulgated in accordance
with subsection (b) and to the maximum extent prudent and
determinable--
(i) shall, concurrently with making a determination
under paragraph (1) that a species is an endangered
species or a threatened species, designate any habitat
of such species which is then considered to be critical
habitat; and
(ii) may, from time-to-time thereafter as
appropriate, revise such designation.
(B)(i) The Secretary shall not designate as critical habitat
any lands or other geographical areas owned or controlled by
the Department of Defense, or designated for its use, that are
subject to an integrated natural resources management plan
prepared under section 101 of the Sikes Act (16 U.S.C. 670a),
if the Secretary determines in writing that such plan provides
a benefit to the species for which critical habitat is proposed
for designation.
(ii) Nothing in this paragraph affects the requirement to
consult under section 7(a)(2) with respect to an agency action
(as that term is defined in that section).
(iii) Nothing in this paragraph affects the obligation of the
Department of Defense to comply with section 9, including the
prohibition preventing extinction and taking of endangered
species and threatened species.
(b) Basis for Determinations.--(1)(A) The Secretary shall
make determinations required by subsection (a)(1) solely on the
basis of the best scientific and commercial data available to
him after conducting a review of the status of the species and
after taking into account those efforts, if any, being made by
any State or foreign nation, or any political subdivision of a
State or foreign nation, to protect such species, whether by
predator control, protection of habitat and food supply, or
other conservation practices, within any area under its
jurisdiction, or on the high seas.
(B) In carrying out this section, the Secretary shall give
consideration to species which have been--
(i) designated as requiring protection from
unrestricted commerce by any foreign nation, or
pursuant to any international agreement; or
(ii) identified as in danger of extinction, or likely
to become so within the foreseeable future, by any
State agency or by any agency of a foreign nation that
is responsible for the conservation of fish or wildlife
or plants.
(2) The Secretary shall designate critical habitat, and make
revisions thereto, under subsection (a)(3) on the basis of the
best scientific data available and after taking into
consideration the economic impact, the impact on national
security, and any other relevant impact, of specifying any
particular area as critical habitat. The Secretary may exclude
any area from critical habitat if he determines that the
benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he
determines, based on the best scientific and commercial data
available, that the failure to designate such area as critical
habitat will result in the extinction of the species concerned.
(3)(A) To the maximum extent practicable, within 90 days
after receiving the petition of an interested person under
section 553(e) of title 5, United States Code, to add a species
to, or to remove a species from, either of the lists published
under subsection (c), the Secretary shall make a finding as to
whether the petition presents substantial scientific or
commercial information indicating that the petitioned action
may be warranted. If such a petition is found to present such
information, the Secretary shall promptly commence a review of
the status of the species concerned. The Secretary shall
promptly publish each finding made under this subparagraph in
the Federal Register.
(B) Within 12 months after receiving a petition that is found
under subparagraph (A) to present substantial information
indicating that the petitioned action may be warranted, the
Secretary shall make one of the following findings:
(i) The petitioned action is not warranted, in which
case the Secretary shall promptly publish such finding
in the Federal Register.
(ii) The petitioned action is warranted in which case
the Secretary shall promptly publish in the Federal
Register a general notice and the complete text of a
proposed regulation to implement such action in
accordance with paragraph (5).
(iii) The petitioned action is warranted but that--
(I) the immediate proposal and timely
promulgation of a final regulation implementing
the petitioned action in accordance with
paragraphs (5) and (6) is precluded by pending
proposals to determine whether any species is
an endangered species or a threatened species,
and
(II) expeditious progress is being made to
add qualified species to either of the lists
published under subsection (c) and to remove
from such lists species for which the
protections of the Act are no longer necessary,
in which case the Secretary shall promptly publish such
finding in the Federal Register, together with a
description and evaluation of the reasons and data on
which the finding is based.
(C)(i) A petition with respect to which a finding is made
under subparagraph (B)(iii) shall be treated as a petition that
is resubmitted to the Secretary under subparagraph (A) on the
date of such finding and that presents substantial scientific
or commercial information that the petitioned action may be
warranted.
(ii) Any negative finding described in subparagraph (A) and
any finding described in subparagraph (B)(i) or (iii) shall be
subject to judicial review.
(iii) The Secretary shall implement a system to monitor
effectively the status of all species with respect to which a
finding is made under subparagraph (B)(iii) and shall make
prompt use of the authority under paragraph 7 to prevent a
significant risk to the well being of any such species.
(D)(i) To the maximum extent practicable, within 90 days
after receiving the petition of an interested person under
section 553(e) of title 5, United States Code, to revise a
critical habitat designation, the Secretary shall make a
finding as to whether the petition presents substantial
scientific information indicating that the revision may be
warranted. The Secretary shall promptly publish such finding in
the Federal Register.
(ii) Within 12 months after receiving a petition that is
found under clause (i) to present substantial information
indicating that the requested revision may be warranted, the
Secretary shall determine how he intends to proceed with the
requested revision, and shall promptly publish notice of such
intention in the Federal Register.
(4) Except as provided in paragraphs (5) and (6) of this
subsection, the provisions of section 553 of title 5, United
States Code (relating to rulemaking procedures), shall apply to
any regulation promulgated to carry out the purposes of this
Act.
(5) With respect to any regulation proposed by the Secretary
to implement a determination, designation, or revision referred
to in subsection (a)(1) or (3), the Secretary shall--
(A) not less than 90 days before the effective date
of the regulation--
(i) publish a general notice and the complete
text of the proposed regulation in the Federal
Register, and
(ii) give actual notice of the proposed
regulation (including the complete text of the
regulation) to the State agency in each State
in which the species is believed to occur, and
to each county or equivalent jurisdiction in
which the species is believed to occur, and
invite the comment of such agency, and each
such jurisdiction, thereon;
(B) insofar as practical, and in cooperation with the
Secretary of State, give notice of the proposed
regulation to each foreign nation in which the species
is believed to occur or whose citizens harvest the
species on the high seas, and invite the comment of
such nation thereon;
(C) give notice of the proposed regulation to such
professional scientific organizations as he deems
appropriate;
(D) publish a summary of the proposed regulation in a
newspaper of general circulation in each area of the
United States in which the species is believed to
occur; and
(E) promptly hold one public hearing on the proposed
regulation if any person files a request for such a
hearing within 45 days after the date of publication of
general notice.
(6)(A) Within the one-year period beginning on the date on
which general notice is published in accordance with paragraph
(5)(A)(i) regarding a proposed regulation, the Secretary shall
publish in the Federal Register--
(i) if a determination as to whether a species is an
endangered species or a threatened species, or a
revision of critical habitat, is involved, either--
(I) a final regulation to implement such
determination,
(II) a final regulation to implement such
revision or a finding that such revision should
not be made,
(III) notice that such one-year period is
being extended under subparagraph (B)(i), or
(IV) notice that the proposed regulation is
being withdrawn under subparagraph (B)(ii),
together with the finding on which such
withdrawal is based; or
(ii) subject to subparagraph (C), if a designation of
critical habitat is involved, either--
(I) a final regulation to implement such
designation, or
(II) notice that such one-year period is
being extended under such subparagraph.
(B)(i) If the Secretary finds with respect to a proposed
regulation referred to in subparagraph (A)(i) that there is
substantial disagreement regarding the sufficiency or accuracy
of the available data relevant to the determination or revision
concerned, the Secretary may extend the one-year period
specified in subparagraph (A) for not more than six months for
purposes of soliciting additional data.
(ii) If a proposed regulation referred to in subparagraph
(A)(i) is not promulgated as a final regulation within such
one-year period (or longer period if extension under clause (i)
applies) because the Secretary finds that there is not
sufficient evidence to justify the action proposed by the
regulation, the Secretary shall immediately withdraw the
regulation. The finding on which a withdrawal is based shall be
subject to judicial review. The Secretary may not propose a
regulation that has previously been withdrawn under this clause
unless he determines that sufficient new information is
available to warrant such proposal.
(iii) If the one-year period specified in subparagraph (A) is
extended under clause (i) with respect to a proposed
regulation, then before the close of such extended period the
Secretary shall publish in the Federal Register either a final
regulation to implement the determination or revision
concerned, a finding that the revision should not be made, or a
notice of withdrawal of the regulation under clause (ii),
together with the finding on which the withdrawal is based.
(C) A final regulation designating critical habitat of an
endangered species or a threatened species shall be published
concurrently with the final regulation implementing the
determination that such species is endangered or threatened,
unless the Secretary deems that--
(i) it is essential to the conservation of such
species that the regulation implementing such
determination be promptly published; or
(ii) critical habitat of such species is not then
determinable, in which case the Secretary, with respect
to the proposed regulation to designate such habitat,
may extend the one-year period specified in
subparagraph (A) by not more than one additional year,
but not later than the close of such additional year
the Secretary must publish a final regulation, based on
such data as may be available at that time,
designating, to the maximum extent prudent, such
habitat.
(7) Neither paragraph (4), (5), or (6) of this subsection nor
section 553 of title 5, United States Code, shall apply to any
regulation issued by the Secretary in regard to any emergency
posing a significant risk to the well-being of any species of
fish and wildlife or plants, but only if--
(A) at the time of publication of the regulation in
the Federal Register the Secretary publishes therein
detailed reasons why such regulation is necessary; and
(B) in the case such regulation applies to resident
species of fish or wildlife, or plants, the Secretary
gives actual notice of such regulation to the State
agency in each State in which such species is believed
to occur.
Such regulation shall, at the discretion of the Secretary, take
effect immediately upon the publication of the regulation in
the Federal Register. Any regulation promulgated under the
authority of this paragraph shall cease to have force and
effect at the close of the 240-day period following the date of
publication unless, during such 240-day period, the rulemaking
procedures which would apply to such regulation without regard
to this paragraph are complied with. If at any time after
issuing an emergency regulation the Secretary determines, on
the basis of the best appropriate data available to him, that
substantial evidence does not exist to warrant such regulation,
he shall withdraw it.
(8) The publication in the Federal Register of any proposed
or final regulation which is necessary or appropriate to carry
out the purposes of this Act shall include a summary by the
Secretary of the data on which such regulation is based and
shall show the relationship of such data to such regulation;
and if such regulation designates or revises critical habitat,
such summary shall, to the maximum extent practicable, also
include a brief description and evaluation of those activities
(whether public or private) which, in the opinion of the
Secretary, if undertaken may adversely modify such habitat, or
may be affected by such designation.
(9) The Secretary shall make publicly available on the
Internet the best scientific and commercial data available that
are the basis for each regulation, including each proposed
regulation, promulgated under subsection (a)(1), except that,
at the request of a Governor, State agency, or legislature of a
State, the Secretary shall not make available under this
paragraph information regarding which the State has determined
public disclosure is prohibited by a law or regulation of that
State, including any law or regulation requiring the protection
of personal information; and except that within 30 days after
the date of the enactment of this paragraph, the Secretary
shall execute an agreement with the Secretary of Defense that
prevents the disclosure of classified information pertaining to
Department of Defense personnel, facilities, lands, or waters.
(c) Lists.--(1) The Secretary of the Interior shall publish
in the Federal Register a list of all species determined by him
or the Secretary of Commerce to be endangered species and a
list of all species determined by him or the Secretary of
Commerce to be threatened species. Each list shall refer to the
species contained therein by scientific and common name or
names, if any, specify with respect to such species over what
portion of its range it is endangered or threatened, and
specify any critical habitat within such range. The Secretary
shall from time to time revise each list published under the
authority of this subsection to reflect recent determinations,
designations, and revisions made in accordance with subsections
(a) and (b).
(2) The Secretary shall--
(A) conduct, at least once every five years, a review
of all species included in a list which is published
pursuant to paragraph (1) and which is in effect at the
time of such review; and
(B) determine on the basis of such review whether any
such species should--
(i) be removed from such list;
(ii) be changed in status from an endangered
species to a threatened species; or
(iii) be changed in status from a threatened
species to an endangered species.
Each determination under subparagraph (B) shall be made in
accordance with the provisions of subsection (a) and (b).
(d) Protective Regulations.--Whenever any species is listed
as a threatened species pursuant to subsection (c) of this
section, the Secretary shall issue such regulations as he deems
necessary and advisable to provide for the conservation of such
species. The Secretary may by regulation prohibit with respect
to any threatened species any act prohibited under section
9(a)(1), in the case of fish or wildlife, or section 9(a)(2) in
the case of plants, with respect to endangered species; except
that with respect to the taking of resident species of fish or
wildlife, such, regulations shall apply in any State which has
entered into a cooperative agreement pursuant to section 6(c)
of this Act only to the extent that such regulations have also
been adopted by such State.
(e) Similarity of Appearance Cases.--The Secretary may, by
regulation of commerce or taking, and to the extent he deems
advisable, treat any species as an endangered species or
threatened species even through it is not listed pursuant to
section 4 of this Act if he finds that--
(A) such species so closely resembles in appearance,
at the point in question, a species which has been
listed pursuant to such section that enforcement
personnel would have substantial difficulty in
attempting to differentiate between the listed and
unlisted species;
(B) the effect of this substantial difficulty is an
additional threat to an endangered or threatened
species; and
(C) such treatment of an unlisted species will
substantially facilitate the enforcement and further
the policy of this Act.
(f)(1) Recovery Plans.--The Secretary shall develop and
implement plans (hereinafter in this subsection referred to as
``recovery plans'') for the conservation and survival of
endangered species and threatened species listed pursuant to
this section, unless he finds that such a plan will not promote
the conservation of the species. The Secretary, in developing
and implementing recovery plans, shall, to the maximum extent
practicable--
(A) give priority to those endangered species or
threatened species, without regard to taxonomic
classification, that are most likely to benefit from
such plans, particularly those species that are, or may
be, in conflict with construction or other development
projects or other forms of economic activity;
(B) incorporate in each plan--
(i) a description of such site-specific
management actions as may be necessary to
achieve the plan's goal for the conservation
and survival of the species;
(ii) objective, measurable criteria which,
when met, would result in a determination, in
accordance with the provisions of this section,
that the species be removed from the list; and
(iii) estimates of the time required and the
cost to carry out those measures needed to
achieve the plan's goal and to achieve
intermediate steps toward that goal.
(2) The Secretary, in developing and implementing recovery
plans, may procure the services of appropriate public and
private agencies and institutions and other qualified persons.
Recovery teams appointed pursuant to this subsection shall not
be subject to the Federal Advisory Committee Act.
(3) The Secretary shall report every two years to the
Committee on Environment and Public Works of the Senate and the
Committee on Merchant Marine and Fisheries of the House of
Representatives on the status of efforts to develop and
implement recovery plans for all species listed pursuant to
this section and on the status of all species for which such
plans have been developed.
(4) The Secretary shall, prior to final approval of a new or
revised recovery plan, provide public notice and an opportunity
for public review and comment on such plan. The Secretary shall
consider all information presented during the public comment
period prior to approval of the plan.
(5) Each Federal agency shall, prior to implementation of a
new or revised recovery plan, consider all information
presented during the public comment period under paragraph (4).
(g) Monitoring.--(1) The Secretary shall implement a system
in cooperation with the States to monitor effectively for not
less than five years the status of all species which have
recovered to the point at which the measures provided pursuant
to this Act are no longer necessary and which, in accordance
with the provisions of this section, have been removed from
either of the lists published under subsection (c).
(2) The Secretary shall make prompt use of the authority
under paragraph 7 of subsection (b) of this section to prevent
a significant risk to the well being of any such recovered
species.
(h) Agency Guidelines.--The Secretary shall establish, and
publish in the Federal Register, agency guidelines to insure
that the purposes of this section are achieved efficiently and
effectively. Such guidelines shall include, but are not limited
to--
(1) procedures for recording the receipt and the
disposition of petitions submitted under subsection
(b)(3) of this section;
(2) criteria for making the findings required under
such subsection with respect to petitions;
(3) a ranking system to assist in the identification
of species that should receive priority review under
subsection (a)(1) of the section; and
(4) a system for developing and implementing, on a
priority basis, recovery plans under subsection (f) of
this section.
The Secretary shall provide to the public notice of, and
opportunity to submit written comments on, any guideline
(including any amendment thereto) proposed to be established
under this subsection.
(i) If, in the case of any regulation proposed by the
Secretary under the authority of this section, a State agency
to which notice thereof was given in accordance with subsection
(b)(5)(A)(ii) files comments disagreeing with all or part of
the proposed regulation, and the Secretary issues a final
regulation which is in conflict with such comments, or if the
Secretary fails to adopt a regulation pursuant to an action
petitioned by a State agency under subsection (b)(3), the
Secretary shall submit to the State agency a written
justification for his failure to adopt regulations consistent
with the agency's comments or petition.
* * * * * * *
cooperation with the states
Sec. 6. (a) General.--(1) In carrying out the program
authorized by this Act, the Secretary shall cooperate to the
maximum extent practicable with the States. [Such cooperation
shall include]
(2) Such cooperation shall include--
(A) before making a determination under
section 4(a), providing to States affected by
such determination all data that is the basis
of the determination; and
(B) consultation with the States concerned
before acquiring any land or water, or interest
therein, for the purpose of conserving any
endangered species or threatened species.
(b) Management Agreements.--The Secretary may enter into
agreements with any State for the administration and management
of any area established for the conservation of endangered
species or threatened species. Any revenues derived from the
administration of such areas under these agreements shall be
subject to the provisions of section 401 of the Act of June 15,
1935 (49 Stat. 383; 16 U.S.C. 715s).
(c)(1) Cooperative Agreements.--In furtherance of the
purposes of this Act, the Secretary is authorized to enter into
a cooperative agreement in accordance with this section with
any State which establishes and maintains an adequate and
active program for the conservation of endangered species and
threatened species. Within one hundred and twenty days after
the Secretary receives a certified copy of such a proposed
State program, he shall make a determination whether such
program is in accordance with this Act. Unless he determines,
pursuant to this paragraph, that the State program is not in
accordance with this Act, he shall enter into a cooperative
agreement with the State for the purpose of assisting in
implementation of the State program. In order for a State
program to be deemed an adequate and active program for the
conservation of endangered species and threatened species, the
Secretary must find, and annually thereafter reconfirm such
finding, that under the State program--
(A) authority resides in the State agency to conserve
resident species of fish or wildlife determined by the
State agency or the Secretary to be endangered or
threatened;
(B) the State agency has established acceptable
conservation programs, consistent with the purposes and
policies of this Act, for all resident species of fish
or wildlife in the State which are deemed by the
Secretary to be endangered or threatened, and has
furnished a copy of such plan and program together with
all pertinent details, information, and data requested
to the Secretary;
(C) the State agency is authorized to conduct
investigations to determine the status and requirements
for survival of resident species of fish and wildlife;
(D) the State agency is authorized to establish
programs, including the acquisition of land or aquatic
habitat or interests therein, for the conservation of
resident endangered or threatened species of fish or
wildlife; and
(E) provision is made for public participation in
designating resident species of fish or wildlife as
endangered or threatened; or
that under the State program--
(i) the requirements set forth in subparagraphs (C),
(D), and (E) of this paragraph are complied with, and
(ii) plans are included under which immediate
attention will be given to those resident species of
fish and wildlife which are determined by the Secretary
or the State agency to be endangered or threatened and
which the Secretary and the State agency agree are most
urgently in need of conservation programs; except that
a cooperative agreement entered into with a State whose
program is deemed adequate and active pursuant to
clause (i) and this clause shall not affect the
applicability of prohibitions set forth in or
authorized pursuant to section 4(d) or section 9(a)(1)
with respect to the taking of any resident endangered
or threatened species.
(2) In furtherance of the purposes of this Act, the Secretary
is authorized to enter into a cooperative agreement in
accordance with this section with any State which establishes
and maintains an adequate and active program for the
conservation of endangered species and threatened species of
plants. Within one hundred and twenty days after the Secretary
receives a certified copy of such a proposed State program, he
shall make a determination whether such program is in
accordance with this Act. Unless he determines, pursuant to
this paragraph, that the State program is not in accordance
with this Act, he shall enter into a cooperative agreement with
the State for the purpose of assisting in implementation of the
State program. In order for a State program to be deemed an
adequate and active program for the conservation of endangered
species of plants and threatened species of plants, the
Secretary must find, and annually thereafter reconfirm such
findings, that under the State program--
(A) authority resides in the State agency to conserve
resident species of plants determined by the State
agency or the Secretary to be endangered or threatened;
(B) the State agency has established acceptable
conservation programs, consistent with the purposes and
policies of this Act, for all resident species of
plants in the State which are deemed by the Secretary
to be endangered or threatened, and has furnished a
copy of such plan and program together with all
pertinent details, information, and data requested to
the Secretary;
(C) the State agency is authorized to conduct
investigations to determine the status and requirements
for survival of resident species of plants; and
(D) provision is made for public participation in
designating resident species of plants as endangered or
threatened; or that under the State program--
(i) the requirements set forth in
subparagraphs (C) and (D) of this paragraph are
complied with, and
(ii) plans are included under which immediate
attention will be given to those resident
species of plants which are determined by the
Secretary or the State agency to be endangered
or threatened and which the Secretary and the
State agency agree are most urgently in need of
conservation programs; except that a
cooperative agreement entered into with a State
whose program is deemed adequate and active
pursuant to clause (i) and this clause shall
not affect the applicability of prohibitions
set forth in or authorized pursuant to section
4(d) or section 9(a)(1) with respect to the
taking of any resident endangered or threatened
species.
(d) Allocation of Funds.--(1) The Secretary is authorized to
provide financial assistance to any State, through its
respective State agency, which has entered into a cooperative
agreement pursuant to subsection (c) of this section to assist
in development of programs for the conservation of endangered
and threatened species or to assist in monitoring the status of
candidate species pursuant to subparagraph (C) of section
4(b)(3) and recovered species pursuant to section 4(g). The
Secretary shall allocate each annual appropriation made in
accordance with the provisions of subsection (i) of this
section to such States based on consideration of--
(A) the international commitments of the United
States to protect endangered species or threatened
species;
(B) the readiness of a State to proceed with a
conservation program consistent with the objectives and
purposes of this Act;
(C) the number of endangered species and threatened
species within a State;
(D) the potential for restoring endangered species
and threatened species within a State;
(E) the relative urgency to initiate a program to
restore and protect an endangered species or threatened
species in terms of survival of the species;
(F) the importance of monitoring the status of
candidate species within a State to prevent a
significant risk to the well being of any such species;
and
(G) the importance of monitoring the status of
recovered species within a State to assure that such
species do not return to the point at which the
measures provided pursuant to this Act are again
necessary.
So much of the annual appropriation made in accordance with
provisions of subsection (i) of this section allocated for
obligation to any State for any fiscal year as remains
unobligated at the close thereof is authorized to be made
available to that State until the close of the succeeding
fiscal year. Any amount allocated to any State which is
unobligated at the end of the period during which it is
available for expenditure is authorized to be made available
for expenditure by the Secretary in conducting programs under
this section.
(2) Such cooperative agreements shall provide for (A) the
actions to be taken by the Secretary and the States; (B) the
benefits that are expected to be derived in connection with the
conservation of endangered or threatened species; (C) the
estimated cost of these actions; and (D) the share of such
costs to be bore by the Federal Government and by the States;
except that--
(i) the Federal share of such program costs shall not
exceed 75 percent of the estimated program cost stated
in the agreement; and
(ii) the Federal share may be increased to 90 percent
whenever two or more States having a common interest in
one or more endangered or threatened species, the
conservation of which may be enhanced by cooperation of
such States, enter jointly into agreement with the
Secretary.
The Secretary may, in his discretion, and under such rules and
regulations as he may prescribe, advance funds to the State for
financing the United States pro rata share agreed upon in the
cooperative agreement. For the purposes of this section, the
non-Federal share may, in the discretion of the Secretary, be
in the form of money or real property, the value of which will
be determined by the Secretary whose decision shall be final.
(e) Review of State Programs.--Any action taken by the
Secretary under this section shall be subject to his periodic
review at no greater than annual intervals.
(f) Conflicts Between Federal and State Laws.--Any State law
or regulation which applies with respect to the importation or
exportation of, or interstate or foreign commerce in,
endangered species or threatened species is void to the extent
that it may effectively (1) permit what is prohibited by this
Act or by any regulation which implements this Act, or (2)
prohibit what is authorized pursuant to an exemption or permit
provided for in this Act or in any regulation which implements
this Act. This Act shall not otherwise be construed to void any
State law or regulation which is intended to conserve
migratory, resident, or introduced fish or wildlife, or to
permit or prohibit sale of such fish or wildlife. Any State law
or regulation respecting the taking of an endangered species or
threatened species may be more restrictive than the exemptions
or permits provided for in this Act or in any regulation which
implements this Act but not less restrictive than the
prohibitions so defined.
(g) Transition.--(1) For purposes of this subsection, the
term ``establishment period'' means, with respect to any State,
the period beginning on the date of enactment of this Act and
ending on whichever of the following dates first occurs: (A)
the date of the close of the 120-day period following the
adjournment of the first regular session of the legislature of
such State which commences after such date of enactment, or (B)
the date of the close of the 15-month period following such
date of enactment.
(2) The prohibitions set forth in or authorized pursuant to
sections 4(d) and 9(a)(1)(B) of this Act shall not apply with
respect to the taking of any resident endangered species or
threatened species (other than species listed in Appendix I to
the Convention or otherwise specifically covered by any other
treaty or Federal law) within any State--
(A) which is then a party to a cooperative agreement
with the Secretary pursuant to section 6(c) of this Act
(except to the extent that the taking of any such
species is contrary to the law of such State); or
(B) except for any time within the establishment
period when--
(i) the Secretary applies such prohibition to
such species at the request of the State, or
(ii) the Secretary applies such prohibition
after he finds, and publishes his finding, that
an emergency exists posing a significant risk
to the well-being of such species and that the
prohibition must be applied to protect such
species. The Secretary's finding and
publication may be made without regard to the
public hearing or comment provisions of section
553 of title 5, United States Code, or any
other provision of this Act; but such
prohibition shall expire 90 days after the date
of its imposition unless the Secretary further
extends such prohibition by publishing notice
and a statement of justification of such
extension.
(h) Regulations.--The Secretary is authorized to promulgate
such regulations as may be appropriate to carry out the
provisions of this section relating to financial assistance to
States.
(i) Appropriations.--(1) To carry out the provisions of this
section for fiscal years after September 30, 1988, there shall
be deposited into a special fund known as the cooperative
endangered species conservation fund, to be administered by the
Secretary, an amount equal to five percent of the combined
amounts covered each fiscal year into the Federal aid to
wildlife restoration fund under section 3 of the Act of
September 2, 1937, and paid, transferred, or otherwise credited
each fiscal year to the Sport Fishing Restoration Account
established under 1016 of the Act of July 18, 1984.
(2) Amounts deposited into the special fund are authorized to
be appropriated annually and allocated in accordance with
subsection (d) of this section.
interagency cooperation
Sec. 7. (a) Federal Agency Actions and Consultations.--(1)
The Secretary shall review other programs administered by him
and utilize such programs in furtherance of the purposes of
this Act. All other Federal agencies shall, in consultation
with and with the assistance of the Secretary, utilize their
authorities in furtherance of the purposes of this Act by
carrying out programs for the conservation of endangered
species and threatened species listed pursuant to section 4 of
this Act.
(2) Each Federal agency shall, in consultation with and with
the assistance of the Secretary, insure that any action
authorized, funded, or carried out by such agency (hereinafter
in this section referred to as an ``agency action'') is not
likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or
adverse modification of habitat of such species which is
determined by the Secretary, after consultation as appropriate
with affected States, to be critical, unless such agency has
been granted an exemption for such action by the Committee
pursuant to subsection (h) of this section. In fulfilling the
requirements of this paragraph each agency shall use the best
scientific and commercial data available.
(3) Subject to such guidelines as the Secretary may
establish, a Federal agency shall consult with the Secretary on
any prospective agency action at the request of, and in
cooperation with, the prospective permit or license applicant
if the applicant has reason to believe that an endangered
species or a threatened species may be present in the area
affected by his project and that implementation of such action
will likely affect such species.
(4) Each Federal agency shall confer with the Secretary on
any agency action which is likely to jeopardize the continued
existence of any species proposed to be listed under section 4
or result in the destruction or adverse modification of
critical habitat proposed to be designated for such species.
This paragraph does not require a limitation on the commitment
of resources as described in subsection (d).
(b) Opinion of Secretary.--(1)(A) Consultation under
subsection (a)(2) with respect to any agency action shall be
concluded within the 90-day period beginning on the date on
which initiated or, subject to subparagraph (B), within such
other period of time as is mutually agreeable to the Secretary
and the Federal agency.
(B) In the case of an agency action involving a permit or
license applicant, the Secretary and the Federal agency may not
mutually agree to conclude consultation within a period
exceeding 90 days unless the Secretary, before the close of the
90th day referred to in subparagraph (A)--
(i) if the consultation period proposed to be agreed
to will end before the 150th day after the date on
which consultation was initiated, submits to the
applicant a written statement setting forth--
(I) the reasons why a longer period is
required;
(II) the information that is required to
complete the consultation; and
(III) the estimated date on which
consultation will be completed; or
(ii) if the consultation period proposed to be agreed
to will end 150 or more days after the date on which
consultation was initiated, obtains the consent of the
applicant to such period.
The Secretary and the Federal agency may mutually agree to
extend a consultation period established under the preceding
sentence if the Secretary, before the close of such period,
obtains the consent of the applicant to the extension.
(2) Consultation under subsection (a)(3) shall be concluded
within such period as is agreeable to the Secretary, the
Federal agency, and the applicant concerned.
(3)(A) Promptly after conclusion of consultation under
paragraph (2) or (3) of subsection (a), the Secretary shall
provide to the Federal agency and the applicant, if any, a
written statement setting forth the Secretary's opinion, and a
summary of the information on which the opinion is based,
detailing how the agency action affects the species or its
critical habitat. If jeopardy or adverse modification is found,
the Secretary shall suggest those reasonable and prudent
alternatives which he believes would not violate subsection
(a)(2) and can be taken by the Federal agency or applicant in
implementing the agency action.
(B) Consultation under subsection (a)(3), and an opinion
based by the Secretary incident to such consultation, regarding
an agency action shall be treated respectively as a
consultation under subsection (a)(2), and as an opinion issued
after consultation under such subsection, regarding that action
if the Secretary reviews the action before it is commenced by
the Federal agency and finds, and notifies such agency, that no
significant changes have been made with respect to the action
and that no significant change has occurred regarding the
information used during the initial consultation.
(4) If after consultation under subsection (a)(2) of this
section, the Secretary concludes that--
(A) the agency action will not violate such
subsection, or offers reasonable and prudent
alternatives which the Secretary believes would not
violate such subsection;
(B) the taking of an endangered species or a
threatened species incidental to the agency action will
not violate such subsection; and
(C) if an endangered species or threatened species of
a marine mammal is involved, the taking is authorized
pursuant to section 101(a)(5) of the Marine Mammal
Protection Act of 1972;
the Secretary shall provide the Federal agency and the
applicant concerned, if any, with a written statement that--
(i) specifies the impact of such incidental taking on
the species,
(ii) specifies those reasonable and prudent measures
that the Secretary considers necessary or appropriate
to minimize such impact,
(iii) in the case of marine mammals, specifies those
measures that are necessary to comply with section
101(a)(5) of the Marine Mammal Protection Act of 1972
with regard to such taking, and
(iv) sets forth the terms and conditions (including,
but not limited to, reporting requirements) that must
be complied with by the Federal agency or applicant (if
any), or both, to implement the measures specified
under clauses (ii) and (iii).
(c) Biological Assessment.--(1) To facilitate compliance with
the requirements of subsection (a)(2) each Federal agency
shall, with respect to any agency action of such agency for
which no contract for construction has been entered into and
for which no construction has begun on the date of enactment of
the Endangered Species Act Amendments of 1978, request of the
Secretary information whether any species which is listed or
proposed to be listed may be present in the area of such
proposed action. If the Secretary advises, based on the best
scientific and commercial data available, that such species may
be present, such agency shall conduct a biological assessment
for the purpose of identifying any endangered species or
threatened species which is likely to be affected by such
action. Such assessment shall be completed within 180 days
after the date on which initiated (or within such other period
as in mutually agreed to by the Secretary and such agency,
except that if a permit or license applicant is involved, the
180-day period may not be extended unless such agency provides
the applicant, before the close of such period, with a written
statement setting forth the estimated length of the proposed
extension and the reasons therefor) and, before any contract
for construction is entered into and before construction is
begun with respect to such action. Such assessment may be
undertaken as part of a Federal agency's compliance with the
requirements of section 102 of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332).
(2) Any person who may wish to apply for an exemption under
subsection (g) of this section for that action may conduct a
biological assessment to identify any endangered species or
threatened species which is likely to be affected by such
action. Any such biological assessment must, however, be
conducted in cooperation with the Secretary and under the
supervision of the appropriate Federal agency.
(d) Limitation on Commitment of Resources.--After initiation
of consultation required under subsection (a)(2), the Federal
agency and the permit or license applicant shall not make any
irreversible or irretrievable commitment of resources with
respect to the agency action which has the effect of
foreclosing the formulation or implementation of any reasonable
and prudent alternative measures which would not violate
subsection (a)(2).
(e)(1) Establishment of Committee.--There is established a
committee to be known as the Endangered Species Committee
(hereinafter in this section referred to as the ``Committee'').
(2) The Committee shall review any application submitted to
it pursuant to this section and determine in accordance with
subsection (h) of this section whether or not to grant an
exemption from the requirements of subsection (a)(2) of this
action for the action set forth in such application.
(3) The Committee shall be composed of seven members as
follows:
(A) The Secretary of Agriculture.
(B) The Secretary of the Army.
(C) The Chairman of the Council of Economic Advisors.
(D) The Administrator of the Environmental Protection
Agency. Agency.
(E) The Secretary of the Interior.
(F) The Administrator of the National Oceanic and
Atmospheric Administration.
(G) The President, after consideration of any
recommendations received pursuant to subsection
(g)(2)(B) shall appoint one individual from each
affected State, as determined by the Secretary, to be a
member of the Committee for the consideration of the
application for exemption for an agency action with
respect to which such recommendations are made, not
later than 30 days after an application is submitted
pursuant to this section.
(4)(A) Members of the Committee shall receive no additional
pay on account of their service on the Committee.
(B) While away from their homes or regular places of business
in the performance of services for the Committee, members of
the Committee shall be allowed travel expenses, including per
diem in lieu of subsistence, in the same manner as persons
employed intermittently in the Government service are allowed
expenses under section 5703 of title 5 of the United States
Code
(5)(A) Five members of the Committee or their representatives
shall constitute a quorum for the transaction of any function
of the Committee, except that, in no case shall any
representative be considered in determining the existence of a
quorum for the transaction of any function of the Committee if
that function involves a vote by the Committee on any matter
before the Committee.
(B) The Secretary of the Interior shall be the Chairman of
the Committee.
(C) The Committee shall meet at the call of the Chairman or
five of its members.
(D) All meetings and records of the Committee shall be open
to the public.
(6) Upon request of the Committee, the head of any Federal
agency is authorized to detail, on a nonreimbursable basis, any
of the personnel of such agency to the Committee to assist it
in carrying out its duties under this section.
(7)(A) The Committee may for the purpose of carrying out its
duties under this section hold such hearings, sit and act at
such times and places, take such testimony, and receive such
evidence, as the Committee deems advisable.
(B) When so authorized by the Committee, any member or agent
of the Committee may take any action which the Committee is
authorized to take by this paragraph.
(C) Subject to the Privacy Act, the Committee may secure
directly from any Federal agency information necessary to
enable it to carry out its duties under this section. Upon
request of the Chairman of the Committee, the head of such
Federal agency shall furnish such information to the Committee.
(D) The Committee may use the United States mails in the same
manner and upon the same conditions as a Federal agency.
(E) The Administrator of General Services shall provide to
the Committee on a reimbursable basis such administrative
support services as the Committee may request.
(8) In carrying out its duties under this section, the
Committee may promulgate and amend such rules, regulations, and
procedures, and issue and amend such orders as it deems
necessary.
(9) For the purpose of obtaining information necessary for
the consideration of an application for an exemption under this
section the Committee may issue subpoenas for the attendance
and testimony of witnesses and the production of relevant
papers, books, and documents.
(10) In no case shall any representative, including a
representative of a member designated pursuant to paragraph
(3)(G) of this subsection, be eligible to cast a vote on behalf
of any member.
(f) Regulations.--Not later than 90 days after the date of
enactment of the Endangered Species Act Amendments of 1978, the
Secretary shall promulgate regulations which set forth the form
and manner in which applications for exemption shall be
submitted to the Secretary and the information to be contained
in such applications. Such regulations shall require that
information submitted in an application by the head of any
Federal agency with respect to any agency action include but
not be limited to--
(1) a description of the consultation process carried
out pursuant to subsection (a)(2) of this section
between the head of the Federal agency and the
Secretary; and
(2) a statement describing why such action cannot be
altered or modified to conform with the requirements of
subsection (a)(2) of this section.
(g) Application for Exemption and Report to the Committee.--
(1) A Federal agency, the Governor of the State in which an
agency action will occur, if any, or a permit or license
applicant may apply to the Secretary for an exemption for an
agency action of such agency if, after consultation under
subsection (a)(2), the Secretary's opinion under subsection (b)
indicates that the agency action would violate subsection
(a)(2). An application for an exemption shall be considered
initially by the Secretary in the manner provided for in this
subsection, and shall be considered by the Committee for a
final determination under subsection (h) after a report is made
pursuant to paragraph (5). The applicant for an exemption shall
be referred to as the ``exemption applicant'' in this section.
(2)(A) An exemption applicant shall submit a written
application to the Secretary, in a form prescribed under
subsection (f), not later than 90 days after the completion of
the consultation process; except that, in the case of any
agency action involving a permit or license applicant, such
application shall be submitted not later than 90 days after the
date on which the Federal agency concerned takes final agency
action with respect to the issuance of the permit or license.
For purposes of the preceding sentence, the term ``final agency
action'' means (i) a disposition by an agency with respect to
the issuance of a permit or license that is subject to
administrative review, whether or not such disposition is
subject to judicial review; or (ii) if administrative review is
sought with respect to such disposition, the decision resulting
after such review. Such application shall set forth the reasons
why the exemption applicant considers that the agency action
meets the requirements for an exemption under this subsection.
(B) Upon receipt of an application for exemption for an
agency action under paragraph (1), the Secretary shall promptly
(i) notify the Governor of each affected State, if any, as
determined by the Secretary, and request the Governors so
notified to recommend individuals to be appointed to the
Endangered Species Committee for consideration of such
application; and (ii) publish notice of receipt of the
application in the Federal Register, including a summary of the
information contained in the application and a description of
the agency action with respect to which the application for
exemption has been filed.
(3) The Secretary shall within 20 days after the receipt of
an application for exemption, or within such other period of
time as is mutually agreeable to the exemption applicant and
the Secretary--
(A) determine that the Federal agency concerned and
the exemption applicant have--
(i) carried out the consultation
responsibilities described in subsection (a) in
good faith and made a reasonable and
responsible effort to develop and fairly
consider modifications or reasonable and
prudent alternatives to the proposed agency
action which would not violate subsection
(a)(2);
(ii) conducted any biological assessment
required by subsection (c); and
(iii) to the extent determinable within the
time provided herein, refrained from making any
irreversible or irretrievable commitment of
resources prohibited by subsection (d); or
(B) deny the application for exemption because the
Federal agency concerned or the exemption applicant
have not met the requirements set forth in subparagraph
(A)(i), (ii), and (iii).
The denial of an application under subparagraph (B) shall be
considered final agency action for purposes of chapter 7 of
title 5, United States Code.
(4) If the Secretary determines that the Federal agency
concerned and the exemption applicant have met the requirements
set forth in paragraph (3)(A) (i), (ii) and (iii) he shall, in
consultation with the Members of the Committee, hold a hearing
on the application for exemption in accordance with sections
554, 555, and 556 (other than subsection (b) (1) and (2)
thereof) of title 5, United States Code, and prepare the report
to be submitted pursuant to paragraph (5).
(5) Within 140 days after making the determinations under
paragraph (3) or within such other period of time as is
mutually agreeable to the exemption applicant and the
Secretary, the Secretary shall submit to the Committee a report
discussing--
(A) the availability and reasonable and prudent
alternatives to the agency action, and the nature and
extent of the benefits of the agency action and of
alternative courses of action consistent with
conserving the species or the critical habitat;
(B) a summary of the evidence concerning whether or
not the agency action is in the public interest and is
of national or regional significance;
(C) appropriate reasonable mitigation and enhancement
measures which should be considered by the Committee;
and
(D) whether the Federal agency concerned and the
exemption applicant refrained from making any
irreversible or irretrievable commitment of resources
prohibited by subsection (d).
(6) To the extent practicable within the time required for
action under subsection (g) of this section, and except to the
extent inconsistent with the requirements of this section, the
consideration of any application for an exemption under this
section and the conduct of any hearing under this subsection
shall be in accordance with sections 554, 555, and 556 (other
than subsection (b)(3) of section 556) of title 5, United
States Code.
(7) Upon request of the Secretary, the head of any Federal
agency is authorized to detail, on a nonreimbursable basis, any
of the personnel of such agency to the Secretary to assist him
in carrying out his duties under this section.
(8) All meetings and records resulting from activities
pursuant to this subsection shall be open to the public.
(h) Exemption.--(1) The Committee shall make a final
determination whether or not to grant an exemption within 30
days after receiving the report of the Secretary pursuant to
subsection (g)(5). The Committee shall grant an exemption from
the requirements of subsection (a)(2) for an agency action if,
by a vote of not less than five of its members voting in
person--
(A) it determines on the record, based on the report
of the Secretary, the record of the hearing held under
subsection (g)(4), and on such other testimony or
evidence as it may receive, that--
(i) there are no reasonable and prudent
alternatives to the agency action;
(ii) the benefits of such action clearly
outweigh the benefits of alternative courses of
action consistent with conserving the species
or its critical habitat, and such action is in
the public interest;
(iii) the action is of regional or national
significance; and
(iv) neither the Federal agency concerned nor
the exemption applicant made any irreversible
or irretrievable commitment of resources
prohibited by subsection (d); and
(B) it establishes such reasonable mitigation and
enhancement measures, including, but not limited to,
live propagation, transplantation, and habitat
acquisition and improvement, as are necessary and
appropriate to minimize the adverse effects of the
agency action upon the endangered species, threatened
species, or critical habitat concerned.
Any final determination by Committee under this subsection
shall be considered final agency action for purposes of chapter
7 of title 5 of the United States Code.
(2)(A) Except as provided in subparagraph (B), an exemption
for an agency action granted under paragraph (1) shall
constitute a permanent exemption with respect to all endangered
or threatened species for the purposes of completing such
agency action--
(i) regardless whether the species was identified in
the biological assessment; and
(ii) only if a biological assessment has been
conducted under subsection (c) with respect to such
agency action.
(B) An exemption shall be permanent under subparagraph (A)
unless--
(i) the Secretary finds, based on the best scientific
and commercial data available, that such exemption
would result in the extinction of a species that was
not the subject of consultation under subsection (a)(2)
or was not identified in any biological assessment
conducted under subsection (c), and
(ii) the Committee determines within 60 days after
the date of the Secretary's finding that the exemption
should not be permanent.
If the Secretary makes a finding described in clause (i), the
Committee shall meet with respect to the matter within 30 days
after the date of the finding.
(i) Review by Secretary of State.--Notwithstanding any other
provision of this Act, the Committee shall be prohibited from
considering for exemption any application made to it, if the
Secretary of State, after a review of the proposed agency
action and its potential implications, and after hearing,
certifies, in writing, to the Committee within 60 days of any
application made under this section that the granting of any
such exemption and the carrying out of such action would be in
violation of an international treaty obligation or other
international obligation of the United States. The Secretary of
State shall, at the time of such certification, publish a copy
thereof in the Federal Register.
(j) Notwithstanding any other provision of this Act, the
Committee shall grant an exemption for any agency action if the
Secretary of Defense finds that such exemption is necessary for
reasons of national security.
(k) Special Provisions.--An exemption decision by the
Committee under this section shall not be a major Federal
action for purposes of the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.): Provided, That an environmental
impact statement which discusses the impacts upon endangered
species or threatened species or their critical habitats shall
have been previously prepared with respect to any agency action
exempted by such order.
(l) Committee Orders.--(1) If the Committee determines under
subsection (h) that an exemption should be granted with respect
to any agency action, the Committee shall issue an order
granting the exemption and specifying the mitigation and
enhancement measures established pursuant to subsection (h)
which shall be carried out and paid for by the exemption
applicant in implementing the agency action. All necessary
mitigation and enhancement measures shall be authorized prior
to the implementing of the agency action and funded
concurrently with all other project features.
(2) The applicant receiving such exemption shall include the
costs of such mitigation and enhancement measures within the
overall costs of continuing the proposed action.
Notwithstanding the preceding sentence the costs of such
measures shall not be treated as project costs for the purpose
of computing benefit-cost or other ratios for the proposed
action. Any applicant may request the Secretary to carry out
such mitigation and enhancement measures. The costs incurred by
the Secretary in carrying out any such measures shall be paid
by the applicant receiving the exemption. No later than one
year after the granting of an exemption, the exemption
applicant shall submit to the Council on Environmental Quality
a report describing its compliance with the mitigation and
enhancement measures prescribed by this section. Such report
shall be submitted annually until all such mitigation and
enhancement measures have been completed. Notice of the public
availability of such reports shall be published in the Federal
Register by the Council on Environmental Quality.
(m) Notice.--The 60-day notice requirement of section 11(g)
of this Act shall not apply with respect to review of any final
determination of the Committee under subsection (h) of this
section granting an exemption from the requirements of
subsection (a)(2) of this section.
(n) Judicial Review.--Any person, as defined by [section
3(13)] section 3(14) of this Act, may obtain judicial review,
under chapter 7 of title 5 of the United States Code, of any
decision of the Endangered Species Committee under subsection
(h) in the United States Court of Appeals for (1) any circuit
wherein the agency action concerned will be, or is being,
carried out, or (2) in any case in which the agency action will
be, or is being, carried out outside of any circuit, the
District of Columbia, by filing in such court within 90 days
after the date of issuance of the decision, a written petition
for review. A copy of such petition shall be transmitted by the
clerk of the court to the Committee and the Committee shall
file in the court the record in the proceeding, as provided in
section 2112, of title 28, United States Code. Attorneys
designated by the Endangered Species Committee may appear for,
and represent the Committee in any action for review under this
subsection.
(o) Exemption as Providing Exception on Taking of Endangered
Species.--Notwithstanding sections 4(d) and 9(a)(1)(B) and (C)
of this Act, sections 101 and 102 of the Marine Mammal
Protection Act of 1972, or any regulation promulgated to
implement any such section--
(1) any action for which an exemption is granted
under subsection (h) of this section shall not be
considered to be a taking of any endangered species or
threatened species with respect to any activity which
is necessary to carry out such action; and
(2) any taking that is in compliance with the terms
and conditions specified in a written statement
provided under subsection (b)(4)(iv) of this section
shall not be considered to be a prohibited taking of
the species concerned.
(p) Exemptions in Presidentially Declared Disaster Areas.--In
any area which has been declared by the President to be a major
disaster area under the Disaster Relief and Emergency
Assistance Act, the President is authorized to make the
determinations required by subsections (g) and (h) of this
section for any project for the repair or replacement of a
public facility substantially as it existed prior to the
disaster under section 405 or 406 of the Disaster Relief and
Emergency Assistance Act, and which the President determines
(1) is necessary to prevent the recurrence of such a natural
disaster and to reduce the potential loss of human life, and
(2) to involve an emergency situation which does not allow the
ordinary procedures of this section to be followed.
Notwithstanding any other provision of this section, the
Committee shall accept the determinations of the President
under this subsection.
* * * * * * *
penalties and enforcement
Sec. 11. (a) Civil Penalties.--(1) Any person who knowingly
violates, and any person engaged in business as an importer or
exporter of fish, wildlife, or plants who violates, any
provision of this Act, or any provision of any permit or
certificate issued hereunder, or of any regulation issued in
order to implement subsection (a)(1)(A), (B), (C), (D), (E), or
(F), (a)(2(A), (B), (C), or (D), (c), (d), (other than
regulation relating to recordkeeping or filing of reports),
(f), or (g) of section 9 of this Act, may be assessed a civil
penalty by the Secretary of not more than $25,000 for each
violation. Any person who knowingly violates, and any person
engaged in business as an importer or exporter of fish,
wildlife, or plants who violates, any provision of any other
regulation issued under this Act may be assessed a civil
penalty by the Secretary of not more than $12,000 for each such
violation. Any person who otherwise violates any provision of
this Act, or any regulation, permit, or certificate issued
hereunder, may be assessed a civil penalty by the Secretary of
not more than $500 for each such violation. No penalty may be
assessed under this subsection unless such person is given
notice and opportunity for a hearing with respect to such
violation. Each violation shall be a separate offense. Any such
civil penalty may be remitted or mitigated by the Secretary.
Upon any failure to pay a penalty assessed under this
subsection, the Secretary may request the Attorney General to
institute a civil action in a district court of the United
States for any district in which such person is found, resides,
or transacts business to collect the penalty and such court
shall have jurisdiction to hear and decide any such action. The
court shall hear such action on the record made before the
Secretary and shall sustain his action if it is supported by
substantial evidence on the record considered as a whole.
(2) Hearings held during proceedings for the assessment of
civil penalties by paragraph (1) of this subsection shall be
conducted in accordance with section 554 of title 5, United
States Code. The Secretary may issue subpoenas for the
attendance and testimony of witnesses and the production of
relevant papers, books, and documents, and administer oaths.
Witnesses summoned shall be paid the same fees and mileage that
are paid to witnesses in the courts of the United States. In
case of contumacy or refusal to obey a subpoena served upon any
person pursuant to this paragraph, the district court of the
United States for any district in which such person is found or
resides or transacts business, upon application by the United
States and after notice to such person, shall have jurisdiction
to issue an order requiring such person to appear and give
testimony before the Secretary or to appear and produce
documents before the Secretary, or both, and any failure to
obey such order of the court may be punished by such court as a
contempt thereof.
(3) Notwithstanding any other provision of this Act, no civil
penalty shall be imposed if it can be shown by a preponderance
of the evidence that the defendant committed an act based on a
good faith belief that he was acting to protect himself or
herself, a member of his or her family, or any other individual
from bodily harm, from any endangered or threatened species.
(b) Criminal Violations.--(1) Any person who knowingly
violates any provision of this Act, of any permit or
certificate issued hereunder, or of any regulation issued in
order to implement subsection (a)(1)(A), (B), (C), (D), (E), or
(F); (a)(2)(A), (B), (C), or (D), (c), (d) (other than a
regulation relating to recordkeeping, or filing of reports),
(f), or (g) of section 9 of this Act shall, upon conviction, be
fined not more than $50,000 or imprisoned for not more than one
year, or both. Any person who knowingly violates any provision
of any other regulation issued under this Act shall, upon
conviction, be fined not more than $25,000 or imprisoned for
not more than six months, or both.
(2) The head of any Federal agency which has issued a lease,
license, permit, or other agreement authorizing a person to
import or export fish, wildlife, or plants, or to operate a
quarantine station for imported wildlife, or authorizing the
use of Federal lands, including grazing of domestic livestock,
to any person who is convicted of a criminal violation of this
Act or any regulation, permit, or certificate issued hereunder
may immediately modify, suspend, or revoke each lease, license,
permit, or other agreement. The Secretary shall also suspend
for a period of up to one year, or cancel, any Federal hunting
or fishing permits or stamps issued to any person who is
convicted of a criminal violation of any provision of this Act
or any regulation, permit, or certificate issued hereunder. The
United States shall not be liable for the payments of any
compensation, reimbursement, or damages in connection with the
modification, suspension, or revocation of any leases,
licenses, permits, stamps, or other agreements pursuant to this
section.
(3) Notwithstanding any other provision of this Act, it shall
be a defense to prosecution under this subsection if the
defendant committed the offense based on a good faith belief
that he was acting to protect himself or herself, a member of
his or her family, or any other individual, from bodily harm
from any endangered or threatened species.
(c) District Court Jurisdiction.--The several district courts
of the United States; including the courts enumerated in
section 460 of title 28, United States Code, shall have
jurisdiction over any actions arising under this Act. For the
purpose of this Act, American Samoa shall be included within
the judicial district of the District Court of the United
States for the District of Hawaii.
(d) Rewards and Certain Incidental Expenses.--The Secretary
or the Secretary of the Treasury shall pay, from sums received
as penalties, fines, or forfeitures of property for any
violations of this chapter or any regulation issued hereunder
(1) a reward to any person who furnishes information which
leads to an arrest, a criminal conviction, civil penalty
assessment, or forfeiture of property for any violation of this
chapter or any regulation issued hereunder, and (2) the
reasonable and necessary costs incurred by any person in
providing temporary care for any fish, wildlife, or plant
pending the disposition of any civil or criminal proceeding
alleging a violation of this chapter with respect to that fish,
wildlife, or plant. The amount of the reward, if any, is to be
designated by the Secretary or the Secretary of the Treasury,
as appropriate. Any officer or employee of the United States or
any State or local government who furnishes information or
renders service in the performance of his official duties is
ineligible for payment under this subsection. Whenever the
balance of sums received under this section and section 6(d) of
the Act of November 16, 1981 (16 U.S.C. 3375(d)) as penalties
or fines, or from forfeitures of property, exceed $500,000, the
Secretary of the Treasury shall deposit an amount equal to such
excess balance in the cooperative endangered species
conservation fund established under section 6(i) of this Act.
(e) Enforcement.--(1) The provisions of this Act and any
regulations or permits issued pursuant thereto shall be
enforced by the Secretary, the Secretary of the Treasury, or
the Secretary of the Department in which the Coast Guard is
operating, or all such Secretaries. Each such Secretary may
utilize by agreement, with or without reimbursement, the
personnel, services, and facilities of any other Federal agency
or any State agency for purposes of enforcing this Act.
(2) The judges of the district courts of the United States
and the United States magistrates may within their respective
jurisdictions, upon proper oath or affirmation showing probable
cause, issue such warrants or other process as may be required
for enforcement of this Act and any regulation issued
thereunder.
(3) Any person authorized by the Secretary, the Secretary of
the Treasury, or the Secretary of the Department in which the
Coast Guard is operating, to enforce this Act may detain for
inspection and inspect any package, crate, or other container,
including its contents, and all accompanying documents, upon
importation or exportation. Such persons may make arrests
without a warrant for any violation of this Act if he has
reasonable grounds to believe that the person to be arrested is
committing the violation in his presence or view and may
execute and serve any arrest warrant, search warrant, or other
warrant or civil or criminal process issued by any officer or
court of competent jurisdiction for enforcement of this Act.
Such person so authorized may search and seize, with or without
a warrant, as authorized by law. Any fish, wildlife, property,
or item so seized shall be held by any person authorized by the
Secretary, the Secretary of the Treasury, or the Secretary of
the Department in which the Coast Guard is operating pending
disposition of civil or criminal proceedings, or the
institution of an action in rem for forfeiture of such fish,
wildlife, property, or item pursuant to paragraph (4) of the
subsection; except that the Secretary may, in lieu of holding
such fish, wildlife, property, or item, permit the owner or
consignee to post a bond or other surety satisfactory to the
Secretary, but upon forfeiture of any such property to the
United States, or the abandonment or waiver of any claim to any
such property, it shall be disposed of (other than by sale to
the general public) by the Secretary in such a manner,
consistent with the purposes of this Act, as the Secretary
shall by regulation prescribe.
(4)(A) All fish or wildlife or plants taken, possessed, sold,
purchased, offered for sale or purchase, transported,
delivered, received, carried, shipped, exported, or imported
contrary to the provisions of this Act, any regulation made
pursuant thereto, or any permit or certificate issued hereunder
shall be subject to forfeiture to the United States.
(B) All guns, traps, nets, and other equipment, vessels,
vehicles, aircraft, and other means of transportation used to
aid the taking, possessing, selling, purchasing, offering for
sale or purchase, transporting, delivering, receiving,
carrying, shipping, exporting, or importing of any fish or
wildlife or plants in violation of this Act, any regulation
made pursuant thereto, or any permit or certificate issued
thereunder shall be subject to forfeiture to the United States
upon conviction of a criminal violation pursuant to section
11(b)(1) of this Act.
(5) All provisions of law relating to the seizure,
forfeiture, and condemnation of a vessel for violation of the
customs laws, the disposition of such vessel or the proceeds
from the sale thereof, and the remission or mitigation of such
forfeiture, shall apply to the seizures and forfeitures
incurred, or alleged to have been incurred, under the
provisions of this Act, insofar as such provisions of law are
applicable and not inconsistent with the provisions of this
Act; except that all powers, rights, and duties conferred or
imposed by the customs laws upon any officer or employee of the
Treasury Department shall, for the purposes of this Act, be
exercised or performed by the Secretary or by such persons as
he may designate.
(6) The Attorney General of the United States may seek to
enjoin any person who is alleged to be in violation of any
provision of this Act or regulation issued under authority
thereof.
(f) Regulations.--The Secretary, the Secretary of the
Treasury, and the Secretary of the Department in which the
Coast Guard is operating, are authorized to promulgate such
regulations as may be appropriate to enforce this Act, and
charge reasonable fees for expenses to the Government connected
with permits or certificates authorized by this Act including
processing applications and reasonable inspections, and with
the transfer, board, handling, or storage of fish or wildlife
or plants and evidentiary items seized and forfeited under this
Act. All such fees collected pursuant to this subsection shall
be deposited in the Treasury to the credit of the appropriation
which is current and chargeable for the cost of furnishing the
services. Appropriated funds may be expended pending
reimbursement from parties in interest.
(g) Citizen Suits.--(1) Except as provided in paragraph (2)
of this subsection any person may commence a civil suit on his
own behalf--
(A) to enjoin any person, including the United States
and any other governmental instrumentality or agency
(to the extent permitted by the eleventh amendment to
the Constitution), who is alleged to be in violation of
any provision of this Act or regulation issued under
the authority thereof; or
(B) to compel the Secretary to apply, pursuant to
section 6(g)(2)(B)(ii) of this Act, the prohibitions
set forth in or authorized pursuant to section 4(d) or
section 9(a)(1)(B) of this Act with respect to the
taking of any resident endangered species or threatened
species within any State; or
(C) against the Secretary where there is alleged a
failure of the Secretary to perform any act or duty
under section 4 which is not discretionary with the
Secretary.
The district courts shall have jurisdiction, without regard to
the amount in controversy or the citizenship of the parties, to
enforce any such provision or regulation or to order the
Secretary to perform such act or duty, as the case may be. In
any civil suit commenced under subparagraph (B) the district
court shall compel the Secretary to apply the prohibition
sought if the court finds that the allegation that an emergency
exists is supported by substantial evidence.
(2)(A) No action may be commenced under subparagraph (1)(A)
of this section--
(i) prior to sixty days after written notice of the
violation has been given to the Secretary, and to any
alleged violator of any such provision or regulation;
(ii) if the Secretary has commenced action to impose
a penalty pursuant to subsection (a) of this section;
or
(iii) if the United States has commenced and is
diligently prosecuting a criminal action in a court of
the United States or a State to redress a violation of
any such provision or regulation.
(B) No action may be commenced under subparagraph (1)(B) of
this section--
(i) prior to sixty days after written notice has been
given to the Secretary setting forth the reasons why an
emergency is thought to exist with respect to an
endangered species or a threatened species in the State
concerned; or
(ii) if the Secretary has commenced and is diligently
prosecuting action under section 6(g)(2)(B)(ii) of this
Act to determine whether any such emergency exists.
(C) No action may be commenced under subparagraph (1)(C) of
this section prior to sixty days after written notice has been
given to the Secretary; except that such action may be brought
immediately after such notification in the case of an action
under this section respecting an emergency posing a significant
risk to the well-being of any species of fish or wildlife or
plants.
(3)(A) Any suit under this subsection may be brought in the
judicial district in which the violation occurs.
(B) In any such suit under this subsection in which the
United States is not a party, the Attorney General, at the
request of the Secretary, may intervene on behalf of the United
States as a matter of right.
(4) The court, in issuing any final order in any suit brought
pursuant to paragraph (1) of this subsection, may award costs
of litigation (including reasonable attorney and expert witness
fees) [to any party, whenever the court determines such award
is appropriate.] to any prevailing party in accordance with
section 2412 of title 28, United States Code.
(5) The injunctive relief provided by this subsection shall
not restrict any right which any person (or class of persons)
may have under any statute or common law to seek enforcement of
any standard or limitation or to seek any other relief
(including relief against the Secretary or a State agency).
(h) Coordination With Other Laws.--The Secretary of
Agriculture and the Secretary shall provide for appropriate
coordination of the administration of this Act with the
administration of the animal quarantine laws (as defined in
section 2509(f) of the Food, Agriculture, Conservation, and
Trade Act of 1990 (21 U.S.C. 136a(f)) and section 306 of the
Tariff Act of 1930 (19 U.S.C. 1306). Nothing in this Act or any
amendment made by this Act shall be construed as superseding or
limiting in any manner the functions of the Secretary of
Agriculture under any other law relating to prohibited or
restricted importations or possession of animals and other
articles and no proceeding or determination under this Act
shall preclude any proceeding or be considered determinative of
any issue of fact or law in any proceeding under any Act
administered by the Secretary of Agriculture. Nothing in this
Act shall be construed as superseding or limiting in any manner
the functions and responsibilities of the Secretary of the
Treasury under the Tariff Act of 1930, including, without
limitation, section 527 of that Act (19 U.S.C. 1527), relating
to the importation of wildlife taken, killed, possessed, or
exported to the United States in violation of the laws or
regulations of a foreign country.
* * * * * * *
[conforming amendments
[Sec. 13. (a) Subsection 4(c) of the Act of October 15,1966
(80 Stat. 928, 16 U.S.C. 668dd(c)), is further amended by
revising the second sentence thereof to read as follows: ``With
the exception of endangered species and threatened species
listed by the Secretary pursuant to section 4 of the Endangered
Species Act of 1973 in States wherein a cooperative agreement
does not exist pursuant to section 6(c) of that Act, nothing in
this Act shall be construed to authorize the Secretary to
control or regulate hunting or fishing of resident fish and
wildlife on lands not within the system.''
[(b) Subsection 10(a) of the Migratory Bird Conservation Act
(45 Stat. 1224, 16 U.S.C. 715i(a)) and subsection 401(a) of the
Act of June 15, 1935 (49 Stat. 383,16 U.S.C. 715s(a)), are each
amended by Striking out ``threatened with extinction,'' and
inserting in lieu thereof the following: ``listed pursuant to
section 4 of the Endangered Species Act of 1973 as endangered
species or threatened species,''.
[(c) Section 7(a)(1) of the Land and Water Conservation Fund
Act of 1965 (16 U.S.C. 4601-9(a) (1)) is amended by striking
out:
[`` Threatened Species.--For any national area which may be
authorized for the preservation of species of fish or wildlife
that are threatened with extinction.and inserting in lieu
thereof the following:
[`` Endangered Species and Threatened Species.--For lands,
waters, or interests therein, the acquisition of which is
authorized under section 5 (a) of the Endangered Species Act of
1973, needed for the purpose of conserving endangered or
threatened species of fish or wildlife or plants.
[(d) The first sentence of section 2 of the Act of September
28,1962, as amended (76 Stat. 653, 16 U.S.C. 460k-l), is
amended to read as follow:
[``The Secretary is authorized to acquire areas of land, or
interests therein, which are suitable for--
[``(1) incidental fish and wildlife-oriented
recreational development,
[``(2) the protection of natural resources,
[``(3) the conservation of endangered species or
threatened species listed by the Secretary pursuant to
section 4 of the Endangered Species Act of 1973, or
[``(4) carrying out two or more of the purposes set
forth in paragraphs (1) through (3) of this section,
and are adjacent to, or within, the said conservation
areas, except that the acquisition of any land or
interest therein pursuant to this section shall be
accomplished only with such funds as may be
appropriated therefor by the Congress or donated for
such purposes, but such property shall not be acquired
with funds obtained from the sale of Federal migratory
bird hunting stamps.
[(e) The Marine Mammal Protection Act of 1972 (16 U.S.C.
1361-1407) is amended--
[(1) by striking out ``Endangered Species
Conservation Act of 1969'' in section 3(1)(B) thereof
and inserting in lieu thereof the following:
``Endangered Species Act of 1973'';
[(2) by striking out ``pursuant to the Endangered
Species Conservation Act of 1969'' in section
101(a)(3)(B) thereof and inserting in lieu thereof the
following: ``or threatened species pursuant to the
Endangered Species Act of 1973'';
[(3) by striking out ``endangered under the
Endangered Species Conservation Act of 1969'' in
section 102(b)(3) thereof and inserting in lieu thereof
the following: ``an endangered species or threatened
species pursuant to the Endangered Species Act of
1973''; and
[(4) by striking out ``of the Interior such revisions
of the Endangered Species List, authorized by the
Endangered Species Conservation Act of 1969,'' in
section 202(a)(6) thereof and inserting in lieu thereof
the following: ``such revisions of the endangered
species list and threatened species list published
pursuant to section 4(c)(1) of the Endangered Species
Act of 1973''.
[(f) Section 2(l) of the Federal Environmental Pesticide
Control Act of 1972 (Public Law 92-516) is amended by striking
out the words ``by the Secretary of the Interior under Public
Law 91- 135'' and inserting in lieu thereof the words ``or
threatened by the Secretary pursuant to the Endangered Species
Act of 1973''. ]
SEC. 13. DISCLOSURE OF EXPENDITURES.
(a) Requirement.--The Secretary of the Interior, in
consultation with the Secretary of Commerce, shall--
(1) not later than 90 days after the end of each
fiscal year, submit to the Committee on Natural
Resources of the House of Representatives and the
Committee on Energy and Natural Resources of the Senate
an annual report detailing Federal Government
expenditures for covered suits during the preceding
fiscal year (including the information described in
subsection (b)); and
(2) make publicly available through the Internet a
searchable database of the information described in
subsection (b).
(b) Included Information.--The report shall include--
(1) the case name and number of each covered suit,
and a hyperlink to the record or decision for each
covered suit (if available);
(2) a description of the claims in each covered suit;
(3) the name of each covered agency whose actions
gave rise to a claim in a covered suit;
(4) funds expended by each covered agency
(disaggregated by agency account) to receive and
respond to notices referred to in section 11(g)(2) or
to prepare for litigation of, litigate, negotiate a
settlement agreement or consent decree in, or provide
material, technical, or other assistance in relation
to, a covered suit;
(5) the number of full-time equivalent employees that
participated in the activities described in paragraph
(4);
(6) attorneys fees and other expenses (disaggregated
by agency account) awarded in covered suits, including
any consent decrees or settlement agreements
(regardless of whether a decree or settlement agreement
is sealed or otherwise subject to nondisclosure
provisions), including the bases for such awards; and
(7) any Federal funding used by a person or a
governmental or nongovernmental entity in bringing a
claim in a covered suit.
(c) Requirement to Provide Information.--The head of each
covered agency shall provide to the Secretary in a timely
manner all information requested by the Secretary to comply
with the requirements of this section.
(d) Limitation on Disclosure.--Notwithstanding any other
provision of this section, this section shall not affect any
restriction in a consent decree or settlement agreement on the
disclosure of information that is not described in subsection
(b).
(e) Definitions.--
(1) Covered agency.--The term ``covered agency''
means any agency of the Department of the Interior, the
Forest Service, the National Marine Fisheries Service,
the Bonneville Power Administration, the Western Area
Power Administration, the Southwestern Power
Administration, or the Southeastern Power
Administration.
(2) Covered suit.--The term ``covered suit'' means
any civil action containing a claim against the Federal
Government, in which the claim arises under this Act
and is based on the action of a covered agency.
* * * * * * *
DISSENTING VIEWS
H.R. 3608 would undermine the scientific integrity of the
Endangered Species Act (ESA) by defining ``best available
scientific and commercial data'' as data provided by affected
states, tribes, and local government, even if that is not the
case. Scientific data submitted by non-government experts would
be deemed less credible. This mandate could force the agencies
to make decisions based on data that is neither the best nor
scientific.
This bill also requires federal agencies to track, report
to Congress, and make available online funds expended to
respond to ESA lawsuits, the number of employees dedicated to
litigation, and attorney's fees awarded during ESA litigation
and settlement agreements. This legislation also places a $125
per hour cap on attorney's fees for suits filed under the ESA.
This bill purports to increase transparency, but would do so
only in a selective fashion, as it narrowly targets lawsuits
against the agencies brought under the citizen suit provisions
of the ESA. Notably absent is the requirement that the agency
report expenditures for when the agency is the plaintiff or
taking an enforcement action against a party. This bill neither
serves any compelling purpose in furthering the goals of
species recovery under the ESA nor provides a comprehensive
look into agency litigation expenditures.
Furthermore, H.R. 3608 undermines the citizen suit
provision in the ESA by substituting fee recovery language from
the Equal Access Justice Act (EAJA), thereby making it
difficult for any prevailing party to recover reasonable
attorney's fees and costs.
Finally, requiring an EAJA fee-shifting regime but failing
to specify which section of the EAJA, as H.R. 3608 does, may
end up requiring the agencies to pay awards to prevailing
parties from their agency appropriations, as opposed to the
Equal Access to Judgment Fund. This would detract from the
agencies core mission of recovering species. For these reasons,
we oppose the bill as reported.
Raul M. Grijalva,
Ranking Member, Committee on
Natural Resources.
Jared Huffman.
A. Donald McEachin.
Wm. Lacy Clay.
Grace F. Napolitano.
Nanette Diaz Barragan.
Niki Tsongas.
Donald S. Beyer, Jr.