Endangered Species Law & Policy

On January 28, 2015, Congressman Bill Flores (R-TX) introduced House Bill H.R. 585 (pdf), which seeks to amend the Endangered Species Act of 1973 (ESA) to establish a new procedure for approval of certain stipulated consent decrees between the federal government and third parties.  Specifically, in cases brought under the ESA's citizen suit provision (16 U.S.C. § 1540(g)), H.R. 585 would require that parties interested in intervening in a lawsuit would have 30 days to intervene, during which time the parties in the case would not be able to file a motion for a consent decree or to dismiss the suit based on a settlement agreement.  The bill would also require that a court presume that an intervening party's interest in an ESA lawsuit would not be adequately represented, unless evidence to the contrary is presented.  If a party is allowed to intervene, the bill would require that the case be sent to the court's mediation program or a magistrate judge for settlement discussions.

Perhaps the most striking change that H.R. 585 proposes is to prevent a court from awarding any  party litigation costs (including attorney's fees) when the case is resolved through a consent decree, and would prohibit payment of litigation costs to a plaintiff whenever the matter is dismissed as a result of a settlement. The bill would also require as a prerequisite to the entry of any consent decree, the approval of each State and county in which a species that is the subject of the lawsuit occurs.  Additionally, without this approval, the court would be prohibited from dismissing a case pursuant to a settlement agreement or consent decree.  In order to facilitate the timely involvement of the relevant States and counties, once a settlement is proposed, the bill would require that the Secretary of Interior notify each State and county in which the Secretary believes the species that is the subject of the lawsuit occurs.  If the relevant States and counties do not respond to the notice within 45 days, the court may deem this lack of response a tacit approval of the agreement, and as such enter the consent decree and dismiss the lawsuit.  In the event that some or all of the relevant States and counties respond to the notice from the Secretary with a statement of non-opposition or approval, the appropriate official from each State or county that responded must sign off on the settlement in order for it to be binding and enforceable.