[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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