118 HR 6583 IH: Refuge System Protection Act of 2023
U.S. House of Representatives
2023-12-04
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EN
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I
118th CONGRESS
1st Session
H. R. 6583
IN THE HOUSE OF REPRESENTATIVES
December 4, 2023
Mr. Thompson of California (for himself, Mr. Wittman, Mr. Krishnamoorthi, Mrs. Dingell, Ms. Norton, Ms. DeGette, Mr. Huffman, Mr. Nadler, and Ms. Matsui) introduced the following bill; which was referred to the Committee on Natural Resources
A BILL
To authorize the United States Fish and Wildlife Service to seek compensation for injuries to trust resources and to use funds received as that compensation to restore, replace, or acquire equivalent resources, and for other purposes.
1.

Short title
This Act may be cited as the “Refuge System Protection Act of 2023”.
2.

Definitions
In this Act:
(1)

Damages
The term damages means—
(A)
compensation for—
(i)
(I)
the cost of replacing, restoring, or acquiring the equivalent of a system resource; and
(II)
the value of any significant loss of use of a system resource, pending—
- (aa)
restoration or replacement of the system resource; or
- (bb)
the acquisition of an equivalent resource; or
(ii)
the value of a system resource, if the system resource cannot be replaced or restored; and
(B)
the cost of any relevant damage assessment carried out pursuant to section 4(c).
(2)

Response cost
The term response cost means the cost of any action carried out by the Secretary—
(A)
to prevent, minimize, or abate the destruction or loss of, or injury to, a system resource;
(B)
to abate or minimize the imminent risk of any destruction, loss, or injury described in subparagraph (A); or
(C)
to monitor the ongoing effects of any incident causing any destruction, loss, or injury described in subparagraph (A).
(3)

Secretary
The term Secretary means the Secretary of the Interior.
(4)

System resource
The term system resource means any living, nonliving, historical, cultural, or archeological resource that is located within the boundaries of—
(A)
a unit of the National Wildlife Refuge System;
(B)
a unit of the National Fish Hatchery System; or
(C)
any other land or water managed by the Director of the United States Fish and Wildlife Service, including any land or water managed cooperatively with any other Federal or State agency.
3.

Actions
(a)

In general
The Attorney General, at the request of the Secretary, may bring in the district court of the United States of appropriate jurisdiction—
(1)
a civil action against any individual or entity that—
(A)
destroys, causes the loss of, or injures any system resource; or
(B)
causes the Secretary to carry out any action to prevent, minimize, or abate the destruction or loss of, or injury or risk to, any system resource; or
(2)
an in rem action against any instrumentality (including a vessel, vehicle, aircraft, or other equipment or mechanism) that—
(A)
destroys, causes the loss of, or injures any system resource; or
(B)
causes the Secretary to carry out any action to prevent, minimize, or abate destruction or loss of, or injury or risk to, a system resource.
(b)

Affirmative defenses
It shall be an affirmative defense in an action under subsection (a) that—
(1)
the applicable destruction or loss of, or injury to, the system resource was caused by an otherwise legal act or omission that occurred outside of the boundaries of the system resource;
(2)
the applicable destruction or loss of, or injury to, the system resource was caused by an activity performed in accordance with Federal, State, or local law, regulation, or court order;
(3)
the applicable destruction or loss of, or injury to, the system resource was caused solely by an act of God or an act of war;
(4)
(A)
the applicable individual, entity, or instrumentality exercised due care; and
(B)
the applicable destruction or loss of, or injury to, the system resource was caused solely by an act or omission of a third party, other than an employee or agent of the individual, entity, or instrumentality; or
(5)
(A)
the applicable destruction or loss of, or injury to, the system resource was caused by an individual, entity, or instrumentality, including an employee or agent of the individual, entity, or instrumentality, acting in physical self-defense or defense of others against physical harm; and
(B)
the physical defense was—
(i)
reasonably necessary;
(ii)
without reasonable alternative; and
(iii)
not excessive under the circumstances.
(c)

Damages
In an action under subsection (a), the court may award response costs and damages resulting from the applicable destruction or loss of, or injury to, the system resource.
(d)

De minimis threshold
The Secretary may not make a request to the Attorney General under subsection (a) if the amount that could be awarded under subsection (c) relating to the cause of action would not exceed $5,000.
(e)

Administrative actions for response costs and damages
(1)

Action by Secretary
(A)

In general
Subject to paragraph (2), the Secretary, after making a finding described in subparagraph (B), may consider, compromise, and settle a claim for response costs and damages if the claim has not been referred to the Attorney General under subsection (a).
(B)

Description of findings
A finding referred to in subparagraph (A) is a finding that—
(i)
destruction or loss of, or injury to, a system resource has occurred; or
(ii)
that destruction, loss, or injury would occur absent an action by the Secretary to prevent, minimize, or abate the destruction, loss, or injury.
(2)

Requirement
In any case in which the total amount to be recovered in an action under subsection (a) may exceed $500,000 (excluding interest), a claim may be compromised and settled under paragraph (1) only with the prior written approval of the Attorney General.
(f)

Response actions, assessments of damages, and injunctive relief
(1)

In general
The Secretary may carry out any necessary action (including making a request to the Attorney General to seek injunctive relief)—
(A)
to prevent, minimize, or abate the destruction or loss of, or injury to, a system resource; or
(B)
to abate or minimize the imminent risk of that destruction, loss, or injury.
(2)

Assessment and monitoring
(A)

In general
The Secretary may assess and monitor the destruction or loss of, or injury to, any system resource for purposes of paragraph (1).
(B)

Judicial review
Any determination or assessment of damage to a system resource carried out under subparagraph (A) shall be subject to judicial review under subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the “Administrative Procedure Act”), on the basis of the administrative record developed by the Secretary.
(g)

Scope
The liability established by this section shall be in addition to any other liability arising under Federal or State law.
4.

Use of recovered amounts
(a)

In general
Amounts of the response costs and damages recovered by the Secretary under this Act and any amounts recovered by the Federal Government under any provision of Federal, State, or local law or otherwise as a result of the destruction or loss of, or injury to, any system resource shall be credited as discretionary offsetting collections to the Construction account of the United States Fish and Wildlife Service for use in accordance with subsection (b), and shall be made available for such purposes only to the extent and in the amounts provided in advance in appropriations Acts.
(b)

Use
The Secretary may only use amounts made available under subsection (a)—
(1)
to reimburse expenditures incurred for—
(A)
response costs;
(B)
damage assessments;
(C)
remediation action planning costs; or
(D)
other activities the Secretary determines to be necessary to respond to, assess, and remediate damages to a system resource;
(2)
to restore, replace, or acquire the equivalent of a system resource that was destroyed, lost, or injured; or
(3)
to monitor and study the recovery of a system resource that was destroyed, lost, or injured.
(c)

Allocation
The Secretary shall—
(1)
allocate for use under subsection (b) the amount of response costs and damages recovered with respect to each system resource and made available under subsection (a) to the unit, land, or water described in section 2(4) within which the system resource was located at the time of the destruction, loss, or injury; and
(2)
after the allocation under paragraph (1), allocate any remaining amounts for such use under subsection (b) as the Secretary determines to be appropriate.
5.

Donations
(a)

Acceptance of monetary donations and services
Subject to subsection (b), the Secretary may accept donations of money or services to meet expected, immediate, or ongoing response costs and damages.
(b)

Use of monetary donations
Amounts accepted under subsection (a) shall be credited as discretionary offsetting collections to the Construction account of the United States Fish and Wildlife Service for meeting such expected, immediate, or ongoing response costs and damages, and shall be made available for such purposes only to the extent and in the amounts provided in advance in appropriations Acts.
6.

Statutory Construction with Respect to Alaska
If any conflict arises between any provision of this Act and any provision of the Alaska National Interest Lands Conservation Act (16 U.S.C. 3101 et seq.), then the provision in such Act shall control.