[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 2564 Introduced in Senate (IS)]
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117th CONGRESS
1st Session
S. 2564
To establish a pilot program under which the Chief of the Forest
Service may use alternative dispute resolution in lieu of judicial
review for certain projects.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 29, 2021
Mr. Daines (for himself, Mr. Crapo, Mr. Risch, and Ms. Lummis)
introduced the following bill; which was read twice and referred to the
Committee on Energy and Natural Resources
_______________________________________________________________________
A BILL
To establish a pilot program under which the Chief of the Forest
Service may use alternative dispute resolution in lieu of judicial
review for certain projects.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protect Collaboration for Healthier
Forests Act''.
SEC. 2. ALTERNATIVE DISPUTE RESOLUTION PILOT PROGRAM.
(a) Definitions.--In this Act:
(1) Arbitrator.--The term ``arbitrator'' means a person--
(A) selected by the Secretary under subsection
(d)(1); and
(B) that meets the qualifications under subsection
(d)(2).
(2) Land and resource management plan.--The term ``land and
resource management plan'' means a plan developed under section
6 of the Forest and Rangeland Renewable Resources Planning Act
of 1974 (16 U.S.C. 1604).
(3) Participant.--The term ``participant'' means an
individual or entity that, with respect to a project--
(A) has exhausted the administrative review process
under part 218 of title 36, Code of Federal Regulations
(or successor regulations); or
(B) in the case of a project that is categorically
excluded for purposes of the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.), has
participated in a collaborative process under clause
(i) or (ii) of subsection (c)(1)(A).
(4) Pilot program.--The term ``pilot program'' means the
pilot program implemented under subsection (b)(1).
(5) Project.--The term ``project'' means a project
described in subsection (c).
(6) Secretary.--The term ``Secretary'' means the Secretary
of Agriculture, acting through the Chief of the Forest Service.
(b) Arbitration Pilot Program.--
(1) In general.--Not later than 2 years after the date of
enactment of this Act, the Secretary shall issue a final rule
to implement an arbitration pilot program, to be carried out in
the States of Idaho, Montana, and Wyoming, as an alternative
dispute resolution in lieu of judicial review for projects
described in subsection (c).
(2) Limitation on number of projects.--
(A) In general.--The Secretary may not designate
for arbitration under the pilot program more than 2
projects per calendar year.
(B) Exception.--If the Secretary designates a
project for arbitration under the pilot program, and no
participant initiates arbitration under subsection
(e)(2), that project shall not count against the
limitation on the number of projects under subparagraph
(A).
(3) Applicable process.--Except as otherwise provided in
this Act, the pilot program shall be carried out in accordance
with subchapter IV of chapter 5 of title 5, United States Code.
(4) Exclusive means of review.--The alternative dispute
resolution process under the pilot program for a project
designated for arbitration under the pilot program shall be the
exclusive means of review for the project.
(5) No judicial review.--A project that the Secretary has
designated for arbitration under the pilot program shall not be
subject to judicial review.
(c) Description of Projects.--
(1) In general.--The Secretary, at the sole discretion of
the Secretary, may designate for arbitration projects that--
(A)(i) are developed through a collaborative
process (within the meaning of section 603(b)(1)(C) of
the Healthy Forest Restoration Act of 2003 (16 U.S.C.
6591b(b)(1)(C)));
(ii) are carried out under the Collaborative Forest
Landscape Restoration Program established under section
4003 of the Omnibus Public Land Management Act of 2009
(16 U.S.C. 7303); or
(iii) are identified in a community wildfire
protection plan (as defined in section 101 of the
Healthy Forests Restoration Act of 2003 (16 U.S.C.
6511));
(B) have as a purpose--
(i) reducing hazardous fuels; or
(ii) reducing the risk of, or mitigating,
insect or disease infestation; and
(C) are located, in whole or in part, in a
wildland-urban interface (as defined in section 101 of
the Healthy Forests Restoration Act of 2003 (16 U.S.C.
6511)).
(2) Inclusion.--In designating projects for arbitration,
the Secretary may include projects that are categorically
excluded for purposes of the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.).
(d) Arbitrators.--
(1) In general.--The Secretary shall develop and publish a
list of not fewer than 15 individuals eligible to serve as
arbitrators for the pilot program.
(2) Qualifications.--To be eligible to serve as an
arbitrator under this subsection, an individual shall be--
(A) recognized by--
(i) the American Arbitration Association;
or
(ii) a State arbitration program; or
(B) a fully retired Federal or State judge.
(e) Initiation of Arbitration.--
(1) In general.--Not later than 7 days after the date on
which the Secretary issues the applicable decision notice or
decision memo with respect to a project, the Secretary shall--
(A) notify each applicable participant and the
Clerk of the United States District Court for the
district in which the project is located that the
project has been designated for arbitration under the
pilot program; and
(B) include in the applicable decision notice or
decision memo a statement that the project has been
designated for arbitration.
(2) Initiation.--
(A) In general.--A participant that has received a
notification under paragraph (1) and is seeking to
initiate arbitration for the applicable project under
the pilot program shall file a request for arbitration
with the Secretary not later than 30 days after the
date of receipt of the notification.
(B) Requirement.--The request under subparagraph
(A) shall include an alternative proposal for the
applicable project that--
(i) describes each modification sought by
the participant with respect to the project;
and
(ii) is consistent with the goals and
objectives of the applicable land and resource
management plan, all applicable laws,
regulations, legal precedent and policy
directives, and the purpose and need for the
project.
(C) Failure to meet requirements.--A participant
who fails to meet the requirements of subparagraphs (A)
and (B) shall be considered to have forfeited their
standing to initiate arbitration under this paragraph.
(3) Compelled arbitration.--
(A) In general.--For any request for judicial
review with respect to a project that the Secretary has
designated for arbitration under the pilot program--
(i) the Secretary shall file in the
applicable court a motion to compel arbitration
in accordance with this Act; and
(ii) the applicable court shall compel
arbitration in accordance with this Act.
(B) Fees and costs.--For any motion described in
subparagraph (A) for which the Secretary is the
prevailing party, the applicable court shall award to
the Secretary--
(i) full or partial court costs; and
(ii) full or partial attorney's fees.
(f) Selection of Arbitrator.--For each arbitration initiated under
this Act--
(1) each applicable participant shall propose 2
arbitrators; and
(2) the Secretary shall select 1 arbitrator from the list
of arbitrators proposed under paragraph (1).
(g) Responsibilities of Arbitrator.--
(1) In general.--An arbitrator--
(A) shall address all claims or modifications
sought by each party seeking arbitration with respect
to a project under this Act; but
(B) may consolidate into a single arbitration all
requests to initiate arbitration by all participants
with respect to a project.
(2) Consideration of proposed projects and decision.--For
each project for which arbitration has been initiated under
this Act, the arbitrator shall make a decision with respect to
the project by--
(A) selecting the project, as approved by the
Secretary;
(B) selecting the alternative proposal submitted by
the applicable participant in the request for
initiation of arbitration for the project filed under
subsection (e)(2)(A); or
(C) rejecting both options described in
subparagraphs (A) and (B).
(3) Convene hearings.--In carrying out paragraph (2), the
arbitrator may convene the Secretary and the participant,
including by telephone conference or other electronic means to
consider--
(A) the administrative record;
(B) arguments and evidence submitted by the
Secretary and the participant;
(C) the project, as approved by the Secretary; and
(D) the alternative proposal submitted by the
applicable participant in the request for initiation of
arbitration for the project filed under subsection
(e)(2)(A).
(4) Limitations.--An arbitrator may not modify any project
or alternative proposal contained in a request for initiation
of arbitration of a participant under this Act.
(h) Intervention.--A party may intervene in an arbitration under
this Act if, with respect to the project to which the arbitration
relates, the party--
(1) meets the requirements of Rule 24(a) of the Federal
Rules of Civil Procedure (or a successor rule); or
(2) participated in the applicable collaborative process
referred to in clause (i) or (ii) of subsection (c)(1)(A).
(i) Scope of Review.--In carrying out arbitration for a project,
the arbitrator shall set aside the agency action, findings, and
conclusions found to be arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law, within the meaning of section
706(2)(A) of title 5, United States Code.
(j) Deadline for Completion of Arbitration.--Not later than 90 days
after the date on which arbitration is initiated for a project under
the pilot program, the arbitrator shall make a decision with respect to
all claims or modifications sought by the participant that initiated
the arbitration.
(k) Effect of Arbitration Decision.--A decision of an arbitrator
under this Act--
(1) shall not be considered to be a major Federal action;
(2) shall be binding; and
(3) shall not be subject to judicial review, except as
provided in section 10(a) of title 9, United States Code.
(l) Administrative Costs.--
(1) In general.--The Secretary shall--
(A) be solely responsible for the professional fees
of arbitrators participating in the pilot program; and
(B) use funds made available to the Secretary and
not otherwise obligated to carry out subparagraph (A).
(2) Travel costs.--The Secretary--
(A) shall be solely responsible for reasonable
travel costs associated with the participation of an
arbitrator in any meeting conducted under subsection
(g)(3); and
(B) shall not be responsible for the travel costs
of a participant under subsection (g)(3).
(3) Attorney's fees.--No arbitrator may award attorney's
fees in any arbitration brought under this Act.
(m) Reports.--
(1) In general.--Not later than 2 years after the date on
which the Secretary issues a final rule to implement the pilot
program under subsection (b)(1), the Secretary shall submit to
the Committee on Agriculture, Nutrition, and Forestry and the
Committee on Energy and Natural Resources of the Senate and the
Committee on Natural Resources of the House of Representatives,
and publish on the website of the Forest Service, a report
describing the implementation of the pilot program, including--
(A) the reasons for selecting certain projects for
arbitration;
(B) an evaluation of the arbitration process,
including any recommendations for improvements to the
process;
(C) a description of the outcome of each
arbitration; and
(D) a summary of the impacts of each outcome
described in subparagraph (C) on the timeline for
implementation and completion of the applicable
project.
(2) GAO reviews and reports.--
(A) Review on termination.--On termination of the
pilot program under subsection (n), the Comptroller
General of the United States shall review the
implementation by the Secretary of the pilot program,
including--
(i) the reasons for selecting certain
projects for arbitration under the pilot
program;
(ii) the location and types of projects
that were arbitrated under the pilot program;
(iii) a description of the outcomes of the
projects that were arbitrated under the pilot
program;
(iv) a description of the participants who
initiated arbitration under the pilot program;
(v) a description and survey of the
arbitrators who participated in the pilot
program;
(vi) the type and outcome of any requests
for judicial review with respect to a project
that the Secretary designated for arbitration
under the pilot program; and
(vii) any other items the Comptroller
General of the United States may find
applicable for evaluating the pilot program.
(B) Report.--After completion of the review
described in subparagraph (A) and not later than 1 year
after termination of the pilot program under subsection
(n), the Comptroller General of the United States shall
submit to the Committee on Agriculture, Nutrition, and
Forestry and the Committee on Energy and Natural
Resources of the Senate and the Committee on Natural
Resources of the House of Representatives a report,
describing the results of the applicable review.
(n) Termination.--The Secretary may not designate a project for
arbitration under the pilot program on or after the date that is 5
years after the date on which the Secretary issues a final rule to
implement the pilot program under subsection (b)(1).
(o) Effect.--Nothing in this Act affects the responsibility of the
Secretary to comply with--
(1) the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.);
(2) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.); or
(3) other applicable laws.
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