[Congressional Record Volume 163, Number 188 (Thursday, November 16, 2017)]
[Senate]
[Pages S7301-S7303]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DAINES (for himself, Mr. Risch, and Mr. Crapo):
  S. 2160. A bill to establish a pilot program under the Chief of the 
Forest Service may use alternative dispute resolution in lieu of 
judicial review of certain projects; to the Committee on Energy and 
Natural Resources.
  Mr. DAINES. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2160

       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

[[Page S7302]]

     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.).

[[Page S7303]]

  

                          ____________________