[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2160 Introduced in Senate (IS)]

<DOC>






115th CONGRESS
  1st Session
                                S. 2160

   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

                           November 16, 2017

   Mr. Daines (for himself, Mr. Risch, and Mr. Crapo) 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) Participant.--The term ``participant'' means an 
        individual or entity that files an objection or scoping 
        comments on a draft environmental document with respect to a 
        project that is subject to an objection at the project level 
        under part 218 of title 36, Code of Federal Regulations (or 
        successor regulations).
            (2) Pilot program.--The term ``pilot program'' means the 
        pilot program established under subsection (b).
            (3) Project.--The term ``project'' means a project 
        described in subsection (c).
            (4) Secretary.--The term ``Secretary'' means the Secretary 
        of Agriculture, acting through the Chief of the Forest Service.
    (b) Arbitration Pilot Program.--Not later than 180 days after the 
date of enactment of this Act, the Secretary shall establish within 
Region 1 of the Forest Service an arbitration pilot program as an 
alternative dispute resolution process in lieu of judicial review for 
projects described in subsection (c).
    (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) hazardous fuels reduction; or
                            (ii) mitigation of 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 receive categorical 
        exclusions for purposes of the National Environmental Policy 
        Act of 1969 (42 U.S.C. 4321 et seq.).
    (d) Limitation on Number of Projects.--The Secretary may not 
designate for arbitration under the pilot program more than 2 projects 
per calendar year.
    (e) Arbitrators.--
            (1) Appointment.--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) certified by--
                            (i) the American Arbitration Association; 
                        or
                            (ii) a State arbitration program; or
                    (B) a fully retired Federal or State judge.
    (f) Initiation of Arbitration.--
            (1) In general.--Not later than 7 days after the date on 
        which the Secretary issues the final decision 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 in 
                accordance with this Act; and
                    (B) include in the decision document a statement 
                that the project has been designated for arbitration.
            (2) Initiation.--
                    (A) In general.--A participant may initiate 
                arbitration regarding a project that has been 
                designated for arbitration under this Act in accordance 
                with--
                            (i) sections 571 through 584 of title 5, 
                        United States Code; and
                            (ii) this paragraph.
                    (B) Requirements.--A request to initiate 
                arbitration under subparagraph (A) shall--
                            (i) be filed not later than the date that 
                        is 30 days after the date of the notification 
                        by the Secretary under paragraph (1); and
                            (ii) include an alternative proposal for 
                        the applicable project that describes each 
                        modification sought by the participant with 
                        respect to the project.
                    (C) No judicial review.--A project for which 
                arbitration is initiated under subparagraph (A) shall 
                not be subject to judicial review.
            (3) Compelled arbitration.--
                    (A) Motion to compel arbitration.--
                            (i) In general.--If a participant seeks 
                        judicial review of a final decision with 
                        respect to a project, the Secretary may file in 
                        the applicable court a motion to compel 
                        arbitration in accordance with this Act.
                            (ii) Fees and costs.--For any motion 
                        described in clause (i) for which the Secretary 
                        is the prevailing party, the applicable court 
                        shall award to the Secretary--
                                    (I) court costs; and
                                    (II) attorney's fees.
                    (B) Arbitration compelled by court.--If a 
                participant seeks judicial review of a project, the 
                applicable court shall compel arbitration in accordance 
                with this Act.
    (g) Selection of Arbitrator.--For each arbitration commenced under 
this Act--
            (1) the Secretary shall propose 3 arbitrators from the list 
        published under subsection (e)(1); and
            (2) the applicable participant shall select 1 arbitrator 
        from the list of arbitrators proposed under paragraph (1).
    (h) Responsibilities of Arbitrator.--
            (1) In general.--An arbitrator selected under subsection 
        (e)--
                    (A) shall address all claims of 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) Selection of proposals.--An arbitrator shall make a 
        decision with respect to each applicable request for initiation 
        of arbitration under this Act by--
                    (A) selecting the project, as approved by the 
                Secretary;
                    (B) selecting an alternative proposal submitted by 
                the applicable participant; or
                    (C) rejecting both projects described in 
                subparagraphs (A) and (B).
            (3) Limitations.--
                    (A) Administrative record.--The evidence before an 
                arbitrator under this subsection shall be limited 
                solely to the administrative record for the project.
                    (B) No modifications to proposals.--An arbitrator 
                may not modify any proposal contained in a request for 
                initiation of arbitration of a participant under this 
                Act.
    (i) 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).
    (j) 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.
    (k) Deadline for Completion of Arbitration.--Not later than 90 days 
after the date on which a request to initiate arbitration is filed 
under subsection (f)(2), the arbitrator shall make a decision with 
respect to the request to initiate arbitration.
    (l) 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.
    (m) 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) Attorney's fees.--No arbitrator may award attorney's 
        fees in any arbitration brought under this Act.
    (n) Reports.--
            (1) In general.--Not later than 1 year after the date on 
        which the pilot program is established, and annually 
        thereafter, 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 Region 1 of the Forest Service, a report of 
        not longer than 10 pages describing the implementation of the 
        pilot program for the applicable year, 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) Initial review.--Not later than 2 years after 
                the date on which the pilot program is established, the 
                Comptroller General of the United States shall review 
                the implementation by the Secretary of the pilot 
                program.
                    (B) Review on termination.--On termination of the 
                pilot program under subsection (o), the Comptroller 
                General of the United States shall review the 
                implementation by the Secretary of the pilot program.
                    (C) Report.--On completion of the review described 
                in subparagraph (A) or (B), 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.
    (o) Termination.--The pilot program shall terminate on the date 
that is 5 years after the date.
    (p) 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.); or
            (2) the National Environmental Policy Act of 1969 (42 
        U.S.C. 4321 et seq.).
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