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115th Congress   }                                  {   Rept. 115-563
                        HOUSE OF REPRESENTATIVES
 2d Session      }                                  {          Part 1

======================================================================



 
            ENDANGERED SPECIES LITIGATION REASONABLENESS ACT

                                _______
                                

 February 15, 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. 3131]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 3131) to amend the Endangered Species Act of 
1973 to conform citizen suits under that Act with other 
existing law, 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. 3131 is to amend the Endangered Species 
Act of 1973 to conform citizens suits under that Act with other 
existing law.

                  Background and Need for Legislation

    In the United States, parties to litigation traditionally 
pay their own court costs and attorneys' fees. However, fee-
shifting statutes permit awards of litigation costs to 
plaintiffs in certain circumstances, and the Equal Access to 
Justice Act (EAJA) authorizes a ``prevailing party'' to collect 
attorneys' fees in litigation against the federal government. 
(EAJA, 28 U.S.C. 2412). 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''.
    Under the citizen suit provision in the Endangered Species 
Act of 1973 (ESA, 16 U.S.C. 1540(g)(4)), a court can award 
costs, including attorneys' and expert witness fees, to private 
parties. However, ESA's fee-shifting provision places no cap on 
hourly attorneys' fees and does not require a litigant to 
``prevail'' to recover attorneys' fees.
    In setting attorneys' fee rates, courts apply the 
``lodestar'' method by multiplying the hours reasonably spent 
on a case by a reasonable hourly rate. The reasonable hourly 
rate accounts for ``the rate prevailing in the community for 
similar services by lawyers of reasonably comparable skill, 
experience, and reputation,'' often in private practice 
(Conservation Law Found. of New England, Inc. v. Watt, 654 F. 
Supp. 706 (D. Mass 1984)).
    Special interest attorneys representing environmental 
groups argue that their expertise is ``specialized'' to justify 
substantial, uncapped fees. Some special interest attorneys 
have collected fees as high as $750 taxpayer dollars per hour. 
A 2014 Natural Resources Committee ESA Congressional Working 
Group report analyzed records from the Department of Justice 
and found at least two such attorneys have garnered more than 
$2 million in attorneys' fees by filing ESA suits.\1\ The 
taxpayer-funded Judgment Fund serves as the source for ESA-
related attorneys' fees payments.
---------------------------------------------------------------------------
    \1\Endangered Species Act Cong. Working Group, 113th Cong., 
Reports, Findings and Recommendations (2014), available at https://
naturalresources.house.gov/uploadedfiles/
esa_working_group_final_report_and_recommendations_02_04_14.pdf.
---------------------------------------------------------------------------
    H.R. 3131 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 rare or specialized to the point where 
uncapped attorneys' fees are 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 and safeguards taxpayer dollars 
against abusive litigation.

                      Section-by-Section Analysis


Section 1. Short title

    This Act may be cited as the Endangered Species Litigation 
Reasonableness Act.

Section 2. Award of litigation costs to prevailing parties in 
        accordance with existing law

    This section amends section 11(g)(4) of the ESA to require 
awarding of attorneys' fees in accordance with the EAJA.

                            Committee Action

    H.R. 3131 was introduced on June 29, 2017, by Congressman 
Bill Huizenga (R-MI). The bill was referred to the Committee on 
Natural Resources and in addition, to the Committee on the 
Judiciary. On July 19, 2017, the Committee held a hearing on 
the bill. On October 3, 2017, the Natural Resources Committee 
met to consider the bill. No amendments were offered and the 
bill was ordered favorably reported to the House of 
Representatives on October 4, 2017, by a roll call vote of 22 
ayes and 16 noes, as follows:


            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, February 12, 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. 3131, the 
Endangered Species Litigation Reasonableness Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jeff LaFave.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

H.R. 3131--Endangered Species Litigation Reasonableness Act

    Under current law, courts can require the Treasury to pay 
reasonable attorneys' fees to plaintiffs who prevail against 
the federal government in cases brought under the Endangered 
Species Act (ESA). Under the bill, courts would determine the 
amount of fees to award in such cases using guidelines 
established under the Equal Access to Justice Act (EAJA). That 
act caps attorneys' fees at $125 per hour but allows for 
adjustments for the cost of living and other factors, such as 
the limited availability of qualified attorneys for certain 
cases.
    Based on historical information regarding the amounts of 
attorneys' fees paid to plaintiffs under the ESA and the EAJA, 
CBO expects that amounts awarded to attorneys under the bill 
would be slightly less than amounts awarded under current law; 
the total decrease in direct spending for those fees would be 
insignificant.
    Because enacting the bill would affect direct spending, 
pay-as-you-go procedures apply. Enacting the bill would not 
affect revenues.
    Enacting H.R. 3131 would not increase net direct spending 
or on-budget deficits in any of the four consecutive 10-year 
periods beginning in 2028.
    H.R. 3131 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Jeff LaFave. The 
estimate was approved 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 amend the Endangered Species Act 
of 1973 to conform citizens suits under that Act with other 
existing law.

                           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 does not contain any 
directed rule makings.
    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 italics, and existing law in which no 
change is proposed is shown in roman):

                     ENDANGERED SPECIES ACT OF 1973




           *       *       *       *       *       *       *
                       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.

           *       *       *       *       *       *       *




                            DISSENTING VIEWS

    H.R. 3131 would undermine the citizen suit provision of the 
Endangered Species Act (ESA) and, similar to the other ESA 
bills passed through this Committee by the Majority, would 
compromise recovery of endangered or threatened species. H.R. 
3131 would render the ESA citizen suit provision, currently 
used to ensure enforcement of the law, ineffective by 
restricting citizens' ability to recover their true litigation 
costs if they prevail in court.

    There is a presumption in the United States that each party 
bears its own attorneys' fees. For policy reasons, Congress has 
reversed this presumption by enacting fee-shifting provisions 
that authorize the award of attorneys' fees and costs 
``whenever . . . appropriate'' in numerous federal statutes 
including the: Toxic Substances Control Act; Surface Mining 
Control and Reclamation Act; Clean Water Act; Safe Drinking 
Water Act; CERCLA, and others. Similarly, Congress has done 
this under the ESA citizen suit provision to allow a prevailing 
party, including industry plaintiffs, to recover reasonable 
attorney's fees and costs.

    It is appropriate to expect each party to pay their own 
attorney's fees in cases where successful plaintiffs stand to 
recover damages or win their share of a monetary settlement. 
However, ESA plaintiffs do not stand to win anything 
personally. That is why Congress has determined that, the 
courts, with respect to the ESA and other similar laws, should 
have the flexibility to make a case-by-case determination 
regarding a fee award that will make a plaintiff whole.

    But H.R. 3131 would require an Equal Access to Justice Act 
fee-shifting regime, a more restrictive attorney's fee recovery 
law that is typically considered a safety net for fee recovery 
when the primary statute does not have a citizen suit provision 
like the one found in the ESA. The bill further complicates 
matters by making it unclear whether it would require the 
agencies to pay fee awards to prevailing parties from their own 
agency appropriations, as opposed to the Judgment Fund. Under 
current law, fees are paid from either appropriated funds or 
the Judgment Fund depending on the circumstances of the case. 
However, if agencies were required to pay all fees from their 
appropriated funds as the supporters of the bill seem to imply, 
this would divert agency resources and detract from the 
agencies' core mission of recovering species. For all of these 
reasons, we strongly oppose the bill as reported.
                                   Raul M. Grijalva,
                                           Ranking Member, Committee on 
                                               Natural Resources.
                                   Darren Soto.
                                   Jared Huffman.
                                   A. Donald McEachin.
                                   Nanette Diaz Barragan.
                                   Grace F. Napolitano.
                                   Donald S. Beyer, Jr.
                                   Colleen Hanabusa.
                                   Alan Lowenthal.

                                  [all]