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[Senate Report 115-429]
[From the U.S. Government Publishing Office]

                                                     Calendar No. 720
115th Congress       }                       {                Report
                                 SENATE
 2d Session          }                       {                115-429

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

 
            PROTECT COLLABORATION FOR HEALTHIER FORESTS ACT

                                _______
                                

               December 11, 2018.--Ordered to be printed

                                _______
                                

  Ms. Murkowski, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                         [To accompany S. 2160]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (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, having considered the same, reports favorably thereon 
with an amendment in the nature of a substitute and recommends 
that the bill, as amended, do pass.
    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

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.

                                PURPOSE

    The purpose of S. 2160 is 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.

                          BACKGROUND AND NEED

    At least 58 million acres of national forest are at high or 
very high risk of severe wildfire. Vegetation management 
activities can reduce this wildlife risk and help restore 
forest resilience. However, it typically takes 18 months to 
four years for the U.S. Forest Service to develop and implement 
a vegetation management project. As a result, only a small 
fraction of the identified high risk wildfire areas are treated 
each year.
    Stakeholder conflicts over such projects often result in 
litigation in Federal Court. The Forest Service has faced a 
rising number of lawsuits over the last 20 years, a majority of 
which involve vegetation management issues (See Amanda M.A. 
Miner, Robert W. Malmsheimer, and Denise M. Keele, Twenty Years 
of Forest Service Land Management Litigation, Journal of 
Forestry (Jan. 2014)). Region One of the Forest Service, which 
covers Montana, parts of Idaho, and North Dakota, has one of 
the highest litigation levels in the agency from 2008 through 
2013, more than 70 projects were subject to litigation, 
encumbering 40 to 50 percent of the Region's planned timber 
harvest volume and treatment acres. (See Todd A. Morgan and 
John Baldridge, Understanding Costs and Other Impacts of 
Litigation of Forest Service Projects: A Regional One Case 
Study (May 5, 2015)).
    S. 2160 establishes a five-year pilot program in the States 
of Montana, Idaho, and Wyoming for the use of binding 
arbitration as an alternative dispute resolution process for 
certain collaborative vegetation management projects. The 
bill's goal is to avoid time-consuming and costly litigation 
and resolve issues so needed forestry work can move forward. 
The pilot program authority sunsets after five years.

                          LEGISLATIVE HISTORY

    S. 2160 was introduced by Senator Daines on November 16, 
2017. The Subcommittee on Public Lands, Forests, and Mining 
held a hearing to consider the bill on August 22, 2018.
    The Senate Committee on Energy and Natural Resources met in 
open business session on October 2, 2018, and ordered S. 2160 
favorably reported, as amended.

            COMMITTEE RECOMMENDATION AND TABULATION OF VOTES

    The Senate Committee on Energy and Natural Resources, in 
open business session on October 2, 2018, by a majority vote of 
a quorum present, recommends that the Senate pass S. 2160, if 
amended as described herein.
    The roll call vote on reporting the measure was 13 yeas, 10 
nays, as follows:

        YEAS                          NAYS
Ms. Murkowski                       Ms. Cantwell
Mr. Barrasso                        Mr. Wyden*
Mr. Risch                           Mr. Sanders*
Mr. Lee                             Ms. Stabenow
Mr. Flake*                          Mr. Heinrich
Mr. Daines                          Ms. Hirono
Mr. Gardner                         Mr. King
Mr. Alexander                       Ms. Duckworth
Mr. Hoeven                          Ms. Cortez Masto
Mr. Cassidy                         Ms. Smith
Mr. Portman
Ms. Capito
Mr. Manchin

*Indicates vote by proxy.

                          COMMITTEE AMENDMENT

    During its consideration of S. 2160, the Committee adopted 
an amendment in the nature of a substitute (ANS).
    The ANS amends subsection (a) to define the terms 
``arbitrator'' and ``land and resource management plan;'' and 
modify the definition of the term ``participant'' to make clear 
that a participant is an individual or entity that has 
exhausted the administrative review process or has participated 
in a collaborative process, if their project has been 
categorically excluded under the National Environmental Policy 
Act (NEPA, 42 U.S.C. 4321 et seq.).
    The ANS amends subsection (b) to provide the Secretary with 
two years to implement the pilot program, rather than 180 days; 
authorize the Secretary to choose projects in Idaho, Montana, 
or Wyoming, not just in Region 1; and make clear that the 
alternative dispute resolution is the exclusive means of 
project review.
    The ANS consolidates subsection (d), relating to the cap on 
eligible projects for the pilot program, into subsection (b) of 
the ANS, and redesignates the applicable subsections 
accordingly.
    In subsection (e), as redesignated, the ANS expands upon 
the requirements of the alternative proposal by making clear 
that a sought modification must be clearly explained, and an 
alternative proposal must be consistent with the project's 
purpose and the applicable land and resource management plan's 
goals and objectives. The substitute amendment also makes clear 
that failure to meet the requirements forfeit a participant's 
standing to initiate arbitration and requires a court to award 
only partial court costs and attorney fees if the Secretary 
prevails on judicial review.
    In subsection (f), as redesignated, the ANS requires the 
project participant to propose two arbitrators from the 
designated list and directs the Secretary to choose one of the 
proposed arbitrators, rather than allowing the Secretary to 
choose three arbitrators and having the participant choose one.
    In subsection (g), as redesignated, the substitute 
amendment authorizes the arbitrator to convene hearings, and 
strikes the original subsection (h)(3)(A), which limited the 
evidence that an arbitrator could consider to only the 
administrative record.
    In subsection (j), as redesignated, the substitute 
amendments requires the arbitrator to make a decision 90 days 
after arbitration is initiated, rather than 90 days after 
arbitration is requested.
    In subsection (l), as redesignated, the ANS requires the 
Secretary to fund any travel expenses for an arbitrator, but 
not for a participant.
    In subsection (m), as redesignated, the substitute 
amendment extends the time that the Secretary has to submit 
reports to the Committees of jurisdiction from one to two 
years; removes the limitation on the report's length; requires 
the Government Accountability Office (GAO) to conduct a review 
of the program once the pilot program is terminated, rather 
than two years after it is established; provides criteria for 
the GAO to consider in its review; and modifies the sunset to 
prohibit the Secretary from designating a project for the pilot 
program five years after the final rule is published, rather 
than completely terminating the program.

                      SECTION-BY-SECTION ANALYSIS

Sec. 1. Short title

    Section 1 provides a short title.

Sec. 2. Alternative dispute resolution pilot program

    Subsection (a) defines key terms.
    Subsection (b) directs the Secretary of Agriculture 
(Secretary), within two years of the Act's enactment, to issues 
a final rule to implement an arbitration pilot program, to be 
used as an alternative dispute resolution instead of judicial 
review, for Idaho, Montana, and Wyoming. This subsection also 
allows for only two projects to be designated for the program 
per year and requires the pilot project to be carried out in 
accordance with 5 U.S.C. 571 et seq. This subsection further 
provides that the pilot program's alternative dispute 
resolution process is the exclusive means of project review and 
makes clear that projects designated for the pilot program are 
not subject to judicial review.
    Subsection (c) provides criteria for a project to be 
designated for arbitration under the pilot program, including 
projects developed through a collaborative process; carried out 
under the Collaborative Forest Landscape Restoration Program; 
identified in a community wildfire protection plan; designed to 
reduce hazardous fuels or mitigate insect or disease 
infestation; and located within a wildland-urban interface. 
This subsection also authorizes the Secretary to include 
projects that have been categorically excluded under NEPA.
    Subsection (d) requires the Secretary to develop and 
publish a list of at least 15 qualified individuals to serve as 
arbitrators for the pilot program.
    Subsection (e) directs the Secretary to provide 
notification to each applicable participant and the clerk of 
the appropriate United States District Court, within seven 
days, of a project's designation for the pilot program. This 
subsection also directs participants to file a request to 
initiate arbitration, including an alternative proposal for the 
project, within 30 days of receiving the Secretary's 
notification. The alternative proposal must describe each 
modification sought and that the proposal is consistent with 
the project's purpose and the applicable land and resource 
management plan's goals and objectives. If a participant fails 
to the requirements, the opportunity to participate in the 
pilot program will be forfeited. The subsection further makes 
clear that if judicial review is sought for a project selected 
for the pilot program, the Secretary shall file a motion to 
compel arbitration and can be awarded full or partial court 
costs and full or partial attorney's fees if the Secretary 
prevails.
    Subsection (f) provides for the selection of an arbitrator. 
The subsection directs each applicable participant to propose 
two arbitrators and requires the Secretary to select an 
arbitrator from that list.
    Subsection (g) provides the responsibilities of the 
arbitrator, including addressing all claims and modifications 
sought, accepting or rejecting the alternative proposal, and 
convening hearings. The subsection makes clear that the 
arbitrator cannot modify a project or alternative proposal.
    Subsection (h) provides for the intervention in the 
arbitration by another party under certain conditions.
    Subsection (i) directs the arbitrator to set aside an 
agency action, findings, and conclusions that are arbitrary, 
capricious, an abuse of discretion, or otherwise not in 
accordance with law.
    Subsection (j) requires the arbitrator to make a decision 
within 90 days of the project's arbitration initiation.
    Subsection (k) makes clear that the arbitrator's decision 
is not a major Federal action, is binding, and is not subject 
to judicial review.
    Subsection (l) requires the Secretary to be responsible for 
professional fees incurred by the arbitrators and makes clear 
that the Secretary is not responsible for costs incurred by 
participants. This subsection also prohibits an arbitrator from 
awarding attorney's fees.
    Subsection (m) requires the Secretary, within two years of 
initiation of the pilot program, to issue a report to the 
committees of jurisdiction evaluating the effectiveness of the 
pilot program. The subsection further requires GAO to evaluate 
the program and submit a report to the committees of 
jurisdiction.
    Subsection (n) prohibits the Secretary from designating a 
project for the pilot program five years after the final rule 
to implement the pilot program is published in the Federal 
Register.
    Subsection (o) makes clear that nothing in this legislation 
supersedes the authority of the Secretary to comply with the 
Endangered Species Act (16 U.S.C. 1531 et seq.) or NEPA.

                   COST AND BUDGETARY CONSIDERATIONS

    The following estimate of the costs of this measure has 
been provided by the Congressional Budget Office:
    S. 2160 would direct the Forest Service to establish an 
arbitration pilot program in lieu of judicial review for 
certain projects located in Idaho, Montana, and Wyoming. The 
bill would require the Forest Service to issue a rule for the 
pilot program, develop a list of eligible arbitrators, pay 
professional fees to arbitrators, and report to the Congress on 
the program. S. 2160 also would direct the Government 
Accountability Office (GAO) to study the results of the pilot 
program.
    According to the Department of Justice, environmental and 
natural resource cases resolved through alternative dispute 
resolution--such as arbitration--typically take less time and 
require fewer resources than cases resolved through litigation. 
The bill would limit the number of projects subject to 
arbitration to two projects each year. On that basis, and using 
information from the Forest Service, CBO estimates that any 
costs to the Forest Service to implement the pilot program 
would be offset by savings in federal staff time and litigation 
expenses, such that the net change in discretionary costs would 
be negligible. Based on the costs of similar tasks, CBO 
estimates that the GAO study would cost less than $500,000; 
such spending would be subject to the availability of 
appropriated funds.
    Enacting S. 2160 could affect direct spending because, 
under current law, plaintiffs who challenge the federal 
government under the Endangered Species Act may be entitled to 
the repayment of attorneys' fees. Such payments are made from 
the federal government's Judgment Fund, which has a permanent 
indefinite appropriation. By prohibiting the award of attorney 
fees for cases resolved under the pilot program, CBO expects 
that S. 2160 could reduce the potential for payments from the 
Judgment Fund. CBO expects that a small number of cases would 
be resolved under the pilot program; thus, we estimate that any 
decrease in direct spending would be insignificant over the 
2019-2028 period.
    Because enacting the bill would affect direct spending, 
pay-as-you-go procedures apply. The bill would not affect 
revenues.
    CBO estimates that enacting S. 2160 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2029.
    The bill would impose an intergovernmental and private-
sector mandate as defined in the Unfunded Mandates Reform Act 
(UMRA) by limiting rights of action for entities seeking 
judicial review of certain forest projects. Because those 
rights of action do not generally result in monetary damages 
and the pilot program is limited to two projects each year, CBO 
estimates that the cost of the mandates would fall below the 
intergovernmental and private-sector mandates established in 
UMRA ($80 million and $160 million in 2018, respectively, 
adjusted annually for inflation).
    The CBO staff contacts for this estimate are Janani 
Shankaran (for federal costs) and Zachary Byrum (for mandates). 
The estimate was reviewed by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

                      REGULATORY IMPACT EVALUATION

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 2160. The bill is not a regulatory measure in 
the sense of imposing Government-established standards or 
significant economic responsibilities on private individuals 
and businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of S. 2160, as ordered reported.

                   CONGRESSIONALLY DIRECTED SPENDING

    S. 2160, as ordered reported, does not contain any 
congressionally directed spending items, limited tax benefits, 
or limited tariff benefits as defined in rule XLIV of the 
Standing Rules of the Senate.

                        EXECUTIVE COMMUNICATIONS

    The testimony provided by the Department of Agriculture at 
the August 22, 2018, hearing on S. 2160 follows:

Statement of Glenn Casamassa Associate Deputy Chief for National Forest 
 Systems, U.S. Forest Service, United States Department of Agriculture

    Chairman Lee, Ranking Member Wyden, members of the 
Committee, I am Glenn Casamassa, Associate Deputy Chief for the 
U.S. Department of Agriculture (USDA) Forest Service. Thank you 
for the opportunity to speak with you today about the pilot 
program as described in S. 2160.
    Current leadership at agency and department levels are 
supportive of the idea of arbitration as a tool to help 
streamline project decisions. This legislation provides a way 
to test arbitration within a manageable project environment and 
within specific sideboards.
    More specifically, this bill would limit the types of 
projects to those developed within a specified collaborative 
process, or Collaborative Forest Landscape Restoration Program 
(CFLRP), part of a community wildfire protection plan, or have 
a purpose to reduce hazardous fuels or mitigate insect and 
disease infestation, and are located in a Wildland Urban 
Interface.
    In keeping within the scope of a pilot, this bill would 
apply only to the Forest Service's Northern Region and would 
authorize only two projects per year to be designated for 
arbitration. This program would be in effect for 5 years.
    There are minor technical corrections we would recommend 
and would be happy to work with the committee staff.
    Thank you again for the opportunity to testify on this bill 
and I look forward to your questions.

   DISSENTING VIEWS OF SENATORS CANTWELL, WYDEN, STABENOW, HEINRICH, 
                           HIRONO, AND SMITH

    The Administrative Procedure Act affords any ``person 
suffering legal wrong because of agency action'' the right to 
have his or her claim heard in court.\1\ S. 2160 creates an 
exception to that right for persons suffering legal wrong 
because of certain Forest Service actions in Montana, Idaho, 
and Wyoming. It allows the Forest Service to shield up to 10 
hazardous fuel reduction projects in those states from judicial 
review. It does this by making arbitration the only way for 
people to challenge those projects.
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    \1\5 U.S.C. Sec. 702.
---------------------------------------------------------------------------
    We oppose S. 2160, not because we oppose arbitration, but 
because the bill misuses arbitration to deprive people of their 
right to judicial review.\2\ To understand our concerns, one 
must first understand the traditional role of arbitration in 
our legal system and how S. 2160 departs from existing legal 
principles.
---------------------------------------------------------------------------
    \2\``[A]rbitration means giving up the right to have a dispute 
resolved by a judge. . . .'' Smith v. Lindemann, 710 Fed. Appx. 101, 
104 (3d Cir. 2017).
---------------------------------------------------------------------------
Arbitration
    Although not defined in S. 2160, arbitration is commonly 
understood to mean submitting a dispute to a non-judicial, 
neutral party for decision rather than trying the case in 
court.\3\ Arbitration has been used to resolve disputes for 
centuries.\4\ Merchants have used it to settle commercial 
disputes in this country since colonial times.\5\
---------------------------------------------------------------------------
    \3\See, e.g., Harrison v. Nissan Motor Corp., 111 F.3d 343, 350 (3d 
Cir. 1997).
    \4\P. Kirgis, Judicial Review and the Limits of Arbitral Authority: 
Lessons from the Law of Contract, 81 St. John's L. Rev. 99 (2007). See 
also, F. Emerson, History of Arbitration Practice and Law, 19 Clev. St. 
L. Rev. 155 (1970) (citing examples in the Bible, Greek mythology, and 
ancient civilizations); E. Wolaver, The Historical Background of 
Commercial Arbitration, 83 U. Pa. L. Rev. 132 (1934).
    \5\W. Jones, Three Centuries of Commercial Arbitration in New York: 
A Brief Survey, 1956 Wash. U. L. Rev. 193 (1956); B. Mann, The 
Formalization of Informal Law: Arbitration Before the American 
Revolution, 59 N.Y.U. L. Rev. 443 (1984).
---------------------------------------------------------------------------
    Merchants found that they could resolve disputes among 
themselves faster and more cheaply by arbitration than by going 
to court.\6\ Arbitration offered the further advantage of 
allowing businessmen to submit their disputes to someone of 
their own choosing, someone who was familiar with the customs 
and practices of their trade and who would resolve their 
dispute in keeping with business standards rather than with 
technical legal rules.\7\
---------------------------------------------------------------------------
    \6\Joint Hearings before the House and Senate Judiciary Committees 
an S. 1005 and H.R. 646, 68th Cong., at 7 (1924) (statement of Charles 
Bernheimer, N.Y. Chamber of Commerce) (``arbitration saves time, saves 
trouble, saves money'').
    \7\P. Kirgis, Judicial Review and the Limits of Arbitral Authority: 
Lessons from the Law of Contract, 81 St. John's L. Rev. 99, 100-101 
(2007) (``When [merchants] had disputes, they wanted neutrals grounded 
in [business] practices to make decisions based on custom and mutual 
interest. They did not want . . . a . . . judge . . . to mechanically 
apply fixed legal rules.'').
---------------------------------------------------------------------------
    The principal problem with arbitration prior to 1926 was 
that it was not legally enforceable. If, after agreeing to 
submit to arbitration, one of the parties backed out, the 
courts would not enforce the arbitration agreement.\8\
---------------------------------------------------------------------------
    \8\J. Sternlight, Panacea or Corporate Tool?: Debunking the Supreme 
Court's Preference for Binding Arbitration, 74 Wash. U. L. Q. 637, 644-
645 (1996). The courts' refusal to enforce arbitration agreements may 
be traced to Lord Coke's decision in Vynior's Case, 77 Eng. Rep. 597 
(K.B. 1609), in which he found an agreement to arbitrate to be 
revocable. E. Wolaver, The Historical Background of Commercial 
Arbitration 83 U. Pa. L. Rev. 132, 138 (1934).
---------------------------------------------------------------------------
The Federal Arbitration Act
    Congress enacted the Federal Arbitration Act\9\ in 1925 to 
fix that problem. The Arbitration Act simply directs the courts 
to enforce arbitration agreements like any other contract,\10\ 
and it gives the courts the power to compel compliance with an 
arbitration agreement if one of the parties tries to back 
out.\11\
---------------------------------------------------------------------------
    \9\Act of Feb. 12, 1925, 43 Stat. 883, now codified at 9 U.S.C. 
Sec. 1 et seq.
    \10\9 U.S.C. Sec. 2 (declaring arbitration agreements to ``be 
valid, irrevocable, and enforceable save upon such grounds as exist at 
law or in equity for the revocation of any contract''). Scherk v. 
Alberto-Culver Co., 417 U.S. 506, 511 (1974) (stating that the 
Arbitration Act was designed ``to place arbitration agreements `upon 
the same footing as other contracts''') (quoting H. Rept. 68-96 at 1 
(1924)).
    \11\9 U.S.C. Sec. 3 (directing courts to stay lawsuits on matters 
subject to an arbitration agreement); 9 U.S.C. Sec. 4 (authorizing 
courts to issue an order to compel compliance with an arbitration 
agreement).
---------------------------------------------------------------------------
    Importantly, the Arbitration Act forces no one to submit to 
arbitration. The parties must agree to it voluntarily.\12\ In 
the words of the Act's principal draftsman, ``No one is 
required to make an agreement to arbitrate. Such action by a 
party is entirely voluntary.''\13\ The Arbitration Act simply 
says that if the parties have voluntarily agreed to submit to 
arbitration, the courts will hold them to their agreement.\14\
---------------------------------------------------------------------------
    \12\``Arbitration under the Act is a matter of consent, not 
coercion. . . .'' Volt Information Sciences, Inc. v. Board of Trustees 
of Leland Stanford Junior University, 489 U.S. 468, 479 (1989).
    \13\Cohen & Dayton, The New Federal Arbitration Law, 12 Va. L. Rev. 
265, 279 (1926). Cohen was the principal author of the Arbitration Act. 
See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 413 
(1967) (J. Black, dissenting).
    \14\``Arbitration is a creature of contract, a device of the 
parties rather than the judicial process.'' AMF, Inc. v. Brunswick 
Corp., 621 F. Supp. 456, 460 (E.D. N.Y. 1985). The text of the 
Arbitration Act ``reflects the overarching principle that arbitration 
is a matter of contract.'' American Express Co. v. Italian Colors 
Restaurant, 570 U.S. 228, 233 (2013). As the House Judiciary Committee 
said in its report on the bill, ``Arbitration agreements are purely 
matters of contract, and the effect of the bill is simply to make the 
contracting party live up to his agreement.'' H. Rept. 68-96 (1924).
---------------------------------------------------------------------------
    The focus of the Arbitration Act was on commercial disputes 
between merchants. By its terms, the Act applies only to 
commercial and maritime contracts.\15\ The legislative history 
of the Act confirms its limited purpose.\16\ The Act was 
championed by the business community because it was ``directed 
primarily toward settlement of commercial disputes.''\17\ ``The 
business community's aim was to secure to merchants an 
expeditious, economical means of resolving their 
disputes.''\18\
---------------------------------------------------------------------------
    \15\9 U.S.C. Sec. 2. In Bernhardt v. Polygraphic Co., the Supreme 
Court held that the Arbitration Act applies to ``only two types of 
contracts: those relating to a maritime transaction and those involving 
commerce.'' 350 U.S. 198, 200 (1956).
    \16\``The legislative hearings and debate leading up to the [Act's] 
passage evidence Congress' aim to enable merchants of roughly equal 
bargaining power to enter into binding agreements to arbitrate 
commercial disputes.'' Epic Systems Corp. v. Lewis, 138 S. Ct. 1612, 
1642-1643 (2018) (J. Ginsburg, dissenting) (emphasis in original).
    \17\Cohen & Dayton, 12 Va. L. Rev. at 265. Arbitration was 
considered to be ``particularly adapted to the settlement of commercial 
disputes.'' Id. at 279.
    \18\Epic Systems Corp. v. Lewis, 138 S. Ct. at 1642 (J. Ginsburg, 
dissenting). ``The principal support for the Act came from trade 
associations dealing in groceries and other perishables and from 
commercial and mercantile groups in the major trading centers.'' Prima 
Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. at 409 n.2 (J. Black, 
dissenting).
---------------------------------------------------------------------------
    Proponents of arbitration saw it as ``peculiarly suited to 
the disposition of the ordinary disputes between merchants.'' 
Commercial disputes tended to involve ``questions of fact--
quantity, quality, time of delivery, compliance with terms of 
payment, excuses for non-performance and the like.''\19\ These 
types of ``factual questions in regard to the day-to-day 
performance of contractual obligations''\20\ did not require 
knowledge of the law as much as knowledge of the standards and 
practices of the business world. Arbitration afforded 
businessmen ``prompt, economical and adequate solution of 
controversies'' in exchange for ``less certainty of legally 
correct adjustment'' of their contractual rights.\21\
---------------------------------------------------------------------------
    \19\Cohen & Dayton, 12 Va. L. Rev. at 281.
    \20\Prima Paint Corp., 388 U.S. at 415 (J. Black, dissenting).
    \21\Wilko v. Swan, 346 U.S. 427, 438 (1953). See also American 
Almond Products Co. v. Consolidated Pecan Sales Co., 144 F.2d 448, 451 
(2d Cir. 1944) (stating that ``parties must decide'' for themselves 
whether arbitration is ``a desirable substitute for trials in court,'' 
but if they agree to arbitration, ``they must content themselves with 
looser approximations to the enforcement of their rights than those 
that the law accords them'').
---------------------------------------------------------------------------
    At the same time, the sponsors of the Arbitration Act 
recognized that ``[n]ot all questions arising out of contracts 
ought to be arbitrated.'' They recognized that arbitration ``is 
not the proper method for deciding points of law of major 
importance involving constitutional questions or policy in the 
application of statutes. . . . It is not a proper remedy for . 
. . questions with which the arbitrators have no particular 
experience and which are better left to the determination of 
skilled judges with a background of legal experience and 
established systems of law.''\22\
---------------------------------------------------------------------------
    \22\Cohen & Dayton, 12 Va. L. Rev. at 281.
---------------------------------------------------------------------------

Arbitration of statutory rights

    For 60 years after the enactment of the Arbitration Act, 
the Supreme Court adhered to the original view that the Act was 
meant to apply to commercial contract claims, not statutory 
ones.\23\ The leading case on this point was Wilko v. Swan.\24\ 
In that case, a customer sued his stockbrokers to enforce his 
rights under the Securities Act of 1933. The stockbrokers 
sought a stay against the suit on the grounds that the customer 
had agreed to arbitrate any disputes. While acknowledging the 
advantages that arbitration agreements ``provide for the 
solution of commercial controversies,'' the Supreme Court held 
that the arbitration agreement in that case was invalid to the 
extent it compelled arbitration of the customer's statutory 
rights.\25\
---------------------------------------------------------------------------
    \23\See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 
U.S. 614, 646(1985) (J. Stevens, dissenting) (``Until today, all of our 
cases enforcing agreements to arbitrate under the Arbitration Act have 
involved contract claims.'').
    \24\346 U.S. 427 (1953).
    \25\346 U.S. at 438.
---------------------------------------------------------------------------
    The Court's decision in Wilko v. Swan rested on the Court's 
determination that arbitration was less protective of statutory 
rights than litigation.\26\ The Court based that determination 
on two grounds. The first was that cases involving statutory 
rights tended to raise complex legal questions that needed to 
be decided by a judge.\27\ The second was that the arbitrator's 
decision was not subject to judicial review for legal 
error.\28\
---------------------------------------------------------------------------
    \26\346 U.S. at 435 (stating that the ``effectiveness'' of 
statutory protections ``is lessened in arbitration as compared to 
judicial proceedings'').
    \27\346 U.S. at 435-436.
    \28\346 U.S. at 436-437 (citing both 9 U.S.C. Sec. 10, which allows 
a court to vacate an arbitrator's decision only for misconduct and not 
for legal error, and the fact that the arbitrator is not required to 
explain the reason for the decision or keep a complete record of the 
proceeding).
---------------------------------------------------------------------------
    Later cases echoed the Court's concern in Wilko v. Swan 
that arbitrators ``may not . . . have the expertise required to 
resolve complex legal questions that arise'' in statutory 
cases.\29\ Many arbitrators are not lawyers, the Court noted, 
and thus they ``may not be conversant with the public law 
considerations underlying'' the statutory right. Statutory 
claims typically involve complex legal questions, which ``must 
be resolved in light of volumes of legislative history and . . 
. decades of legal interpretation and administrative rulings. 
Although an arbitrator may be competent to resolve many 
preliminary factual questions, . . . he may lack the competence 
to decide the ultimate legal issue . . . under the statute.  . 
. .''\30\
---------------------------------------------------------------------------
    \29\McDonald v. West Branch, 466 U.S. 264, 290 (1984).
    \30\Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 
743 (1981). The ``specialized competence of arbitrators pertains 
primarily to the law of the shop, not the law of the land.'' Id., 
quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 57 (1974).
---------------------------------------------------------------------------
    ``Moreover,'' the Court added, ``even though a particular 
arbitrator may be competent to interpret and apply statutory 
law, he may not have the contractual authority to do so.''\31\ 
This is because of ``the special role of the arbitrator, whose 
task is to effectuate the intent of the parties rather than the 
requirements of enacted legislation.''\32\ ``An arbitrator's 
power is both derived from, and limited by,'' the arbitration 
agreement.\33\ An arbitrator ``has no general authority to 
invoke public laws that conflict with the bargain between the 
parties.''\34\
---------------------------------------------------------------------------
    \31\Barrentine, 450 U.S. at 744.
    \32\Alexander v. Gardner-Denver Co., 415 U.S. 36, 56-57 (1974).
    \33\Barrentine, 450 U.S. at 744.
    \34\Id., quoting Alexander v. Gardner-Denver Co., 415 U.S. at 53 
(1974).
---------------------------------------------------------------------------
    ``Finally, . . . arbitral procedures are less protective of 
individual statutory rights than are judicial procedure.''\35\ 
This is because ``the factfinding process in arbitration is not 
equivalent to judicial factfinding. The record of arbitration 
proceedings is not as complete; the usual rules of evidence do 
not apply; and rights and procedures . . ., such as discovery, 
compulsory process, cross-examination, and testimony under 
oath, are often severely limited or unavailable.''\36\
---------------------------------------------------------------------------
    \35\Barrentine, 450 U.S. at 744.
    \36\Alexander v. Gardner-Denver Co., 415 U.S. at 57-58. Different 
procedures may lead to different results. As the Supreme Court has 
said, ``arbitration, whatever its merits or shortcomings, substantially 
affects the cause of action. . . . The nature of the tribunal where 
suits are tried is an important part of the parcel of rights behind a 
cause of action. The change from a court of law to an arbitration panel 
may make a radical difference in ultimate result.'' Bernhardt v. 
Polygraphic Co. of America, 350 U.S. 198, 203 (1956).
---------------------------------------------------------------------------
    For all of these reasons, the Court repeatedly found that 
arbitration ``cannot provide an adequate substitute for a 
judicial proceeding in protecting . . . federal statutory and 
constitutional rights. . . .''\37\ ``Arbitral procedures, while 
well suited to the resolution of contractual disputes, make 
arbitration a comparatively inappropriate forum for the 
resolution of rights created by'' statute.\38\
---------------------------------------------------------------------------
    \37\McDonald v. West Branch, 466 U.S. at 290.
    \38\Alexander v. Gardner-Denver Co., 415 U.S. at 56.
---------------------------------------------------------------------------

The expanded use of arbitration

    We recognize, of course, that the use of arbitration has 
expanded far beyond bilateral contract disputes between 
merchants in recent years.\39\ This expansion might fairly be 
traced to the Supreme Court's decision in 1983 in Moses H. Cone 
Memorial Hospital v. Mercury Construction Corporation.\40\ In 
that case, the Court discovered, for the first time in the 
Act's then 58-year history, that it established a ``liberal 
federal policy favoring arbitration.''\41\
---------------------------------------------------------------------------
    \39\Arbitration also has a long history in resolving labor 
disputes. Indeed, Congress first authorized the use of arbitration to 
settle labor disputes in the Railroad Arbitration Act of 1888, 25 Stat. 
501, long before the enactment of the Federal Arbitration Act. Perhaps 
for this reason, the Arbitration Act expressly excludes ``contracts of 
employment of seamen, railroad employees, or any other class of workers 
engaged in foreign or interstate commerce'' from its coverage. 9 U.S.C. 
Sec. 1. The Supreme Court has said that ``arbitration of labor disputes 
has quite different functions from arbitration under an ordinary 
commercial agreement.'' United Steelworkers of America v. Warrior & 
Gulf Navigation Co., 363 U.S. 574, 578 (1960). ``In the commercial 
case, arbitration is the substitute for litigation. [In labor 
disputes,] arbitration is the substitute for industrial strife.'' Id. 
In spite of this distinction, ``the federal courts have often looked to 
the [Arbitration] Act for guidance in labor arbitration cases.'' United 
Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 40 n.9 
(1987).
    \40\460 U.S. 1 (1983).
    \41\460 U.S. at 24. Lower courts have understood this to me that 
the policy is one ``favoring arbitration over litigation.'' E.g., 
Seaboard Coast Line Railroad Co. v. Trailer Train Co., 690 F.2d 1343, 
1348 (11th Cir. 1982).
---------------------------------------------------------------------------
    In keeping with this newly discovered preference, the 
Supreme has steadily expanded the reach of the Arbitration Act 
over the past 35 years. Indeed, in Justice Stevens' view, ``the 
Court `has effectively rewritten''' the Arbitration Act.\42\ Or 
as Justice O'Connor observed, ``the Court has abandoned all 
pretense of ascertaining congressional intent with respect to 
the Federal Arbitration Act, building instead, case by case, an 
edifice of its own creation.''\43\
---------------------------------------------------------------------------
    \42\Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 42-43 
(1991) (J. Stevens, dissenting), quoting his own words in Perry v. 
Thomas, 482 U.S. 483, 493 (1987) (J. Stevens, dissenting). See also 
Epic Systems Corp. v. Lewis, 138 S. Ct. 1612, 1643 (2018) (J. Ginsburg, 
dissenting) (stating that the Court ``has veered away from Congress' 
intent simply to afford merchants a speedy and economical means of 
resolving commercial disputes'').
    \43\Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 283 (1995) 
(J. O'Connor, concurring).
---------------------------------------------------------------------------
    The Arbitration Act's original, limited purpose bears 
repeating. It was to give ``merchants an expeditious, 
economical means of resolving their disputes,''\44\ by making 
them enforceable.\45\ ``The legislative hearings and debate 
leading up to the [Act's] passage evidence Congress' aim to 
enable merchants of roughly equal bargaining power to enter 
into binding agreements to arbitrate commercial disputes.''\46\ 
It ``also shows that Congress did not intend the statute to 
apply to arbitration provisions in employment contracts.''\47\ 
``Congress never endorsed a policy favoring arbitration where 
one party sets the terms of an agreement while the other is 
left to ``take it or leave it.''\48\
---------------------------------------------------------------------------
    \44\Epic Systems Corp. v. Lewis, 138 S. Ct. 1612, 1642 (J. 
Ginsburg, dissenting).
    \45\Gilmer, 500 U.S. at 24 (stating that the purpose of the Act 
``was to reverse the longstanding judicial hostility to arbitration 
agreements . . . and to place arbitration agreements upon the same 
footing as other contracts''); Prima Paint Corp. v. Flood & Conklin 
Manufacturing Co., 388 U.S. 395, 404 n.12 (1967) (stating that the 
purpose of the Act ``was to make arbitration agreements as enforceable 
as other contracts, but not more so'').
    \46\Epic Systems Corp., 138 S. Ct. at 1642-1643 (J. Ginsburg, 
dissenting) (emphasis in original).
    \47\Id. at 1643.
    \48\Id. See also Prima Paint Corp., 388 U.S. at 403 n.9 (``We note 
that categories of contracts otherwise within the Arbitration Act but 
in which one of the parties characteristically has little bargaining 
power are expressly excluded from the reach of the Act.'').
---------------------------------------------------------------------------
    Nonetheless, in furtherance of its view that the 
Arbitration Act requires that ``any doubts concerning the scope 
of arbitrable issues should be resolved in favor or 
arbitration,''\49\ the Supreme Court has in recent years 
enforced agreements to arbitrate statutory claims as well as 
commercial ones,\50\ and it has enforced arbitration agreements 
between ``powerful economic enterprises'' and their less 
powerful customers and employees.\51\
---------------------------------------------------------------------------
    \49\Moses H. Cone, 460 U.S. at 25-26.
    \50\E.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 
(1991) (``It is by now clear that statutory claims may be the subject 
of an arbitration agreement, enforceable pursuant to the'' Arbitation 
Act).
    \51\DirectTV, Inc. v. Imburgia, 136 S. Ct. 463, 471 (2015) (J. 
Ginsburg, dissenting). The Court narrowed the Arbitration Act's 
exemption for employment contracts to exclude only transporter workers' 
contracts from the Act's scope in Circuit City Stores, Inc. v. Adams, 
532 U.S. 105, 109 (2001).
---------------------------------------------------------------------------
    The line of cases extending the Arbitration Act to 
statutory claims began with the Court's decision in Mitsubishi 
Motors Corporation v. Soler Chysler-Plymouth in 1985.\52\ The 
question in that case was whether the Arbitration Act required 
the courts to compel a car dealer to submit its statutory 
antitrust claim against an automaker to arbitration pursuant to 
the arbitration clause in their contract. Invoking its ``policy 
favoring arbitration,'' the Court held that the Act did.\53\ 
The Court reasoned that ``[b]y agreeing to arbitrate a 
statutory claim, a party does not forego the substantive rights 
afforded by the statute; it only submits to their resolution in 
an arbitral, rather than a judicial, forum. It trades the 
procedures and opportunity for review of the courtroom for the 
simplicity, informality, and expedition of arbitration. . . . 
Having made the bargain to arbitrate, the party should be held 
to it unless Congress itself has evinced an intention to 
preclude a waiver of judicial remedies for the statutory rights 
at issue.''\54\
---------------------------------------------------------------------------
    \52\473 U.S. 614 (1985). The Court subsequently overruled Wilko v. 
Swan (which held that statutory claims were not subject to arbitration) 
in Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 
477, 484 (1989). See also Gilmer, 500 U.S. at 26 (citing cases holding 
statutory claims are subject to arbitration).
    \53\473 U.S. at 625.
    \54\473 U.S. at 628.
---------------------------------------------------------------------------
    Nonetheless, the Court continued to recognize that ``not . 
. . all controversies implicating statutory rights are suitable 
for arbitration.''\55\ Importantly, the Court established an 
important exception to the general presumption that courts must 
enforce agreements to arbitrate statutory claims: they must 
only ``so long as the prospective litigant effectively may 
vindicate its statutory cause of action in'' arbitration.\56\ 
This exception, known as the ``effective-vindication'' rule, 
``prevent[s] arbitration clauses from choking off a plaintiff's 
ability to enforce congressionally created rights.'' It ``bars 
applying [an arbitration] clause when . . . it operates to 
confer immunity from potentially meritorious federal 
claims.''\57\
---------------------------------------------------------------------------
    \55\473 U.S. at 627; Gilmer, 500 U.S. at 26 (stating that ``all 
statutory claims may not be appropriate for arbitration'').
    \56\473 U.S. at 637.
    \57\American Express Co. v. Italian Colors Restaurant, 570 U.S. 
228, 240 (2013) (J. Kagan, dissenting).
---------------------------------------------------------------------------

The Administrative Dispute Resolution Act of 1996

    The Arbitration Act provides for judicial enforcement of 
agreements to arbitrate private disputes, not disputes with 
federal agencies.\58\ Indeed, for many years, the Department of 
Justice took the position that it would be unconstitutional for 
a federal agency to submit to binding arbitration without 
specific statutory authorization.\59\ But then, in 1995, the 
Justice Department reversed itself and decided that the 
Constitution does not bar federal agencies from agreeing to 
binding arbitration after all.\60\ The following year, Congress 
enacted the Administrative Dispute Resolution Act of 1996,\61\ 
to authorize federal agencies to agree to binding arbitration.
---------------------------------------------------------------------------
    \58\32 Comp. Gen. 333 (1953) (``The . . . Arbitration Act 
apparently has never been held to include with its scope transactions 
to which the United States is a party.''). The Comptroller General 
repeatedly advised agencies that ``the rights of the United States may 
not be determined by binding arbitration''). E.g., 1972 U.S. Comp. Gen. 
LEXIS 2084 (1972).
    \59\Testimony of then Assistant Attorney General William Barr, S. 
Hrg. 101-494, at 10-13, 86-106 (1989). The Justice Department's 
principal concern was that private arbitrators would not be appointed 
in accordance with the Constitution's Appointments Clause, but it also 
raised concerns under the Constitution's Take Care Clause, Article III 
(vesting judicial power in the courts), and the Due Process Clause of 
the Fifth Amendment. S. Rept. 101-543, 5 (1990). See also Tenaska 
Washington Partners, L.P. v. United States, 34 Fed. Cl. 434, 438-439 
(1995).
    \60\Constitutional Limitations on Federal Government Participation 
in Binding Arbitration, 19 Op. O.L.C. 208 (1995).
    \61\Public Law 104-320, 110 Stat. 3870, codified at 5 U.S.C. 
Sec. 571 et seq. Congress had previously enacted the Administrative 
Dispute Resolution Act, Public Law 101-552, 104 Stat. 2736, in 1990. 
But, in deference to the Justice Department's constitutional concerns, 
it stopped short of affording binding arbitration. Agencies could only 
agree to non-binding arbitration, which gave them the discretion to 
accept or reject an arbitrator's award. The 1996 law made the 
Administrative Dispute Resolution Act permanent and provided for 
binding arbitration.
---------------------------------------------------------------------------
    Importantly, though, the Administrative Dispute Resolution 
Act does not impose binding arbitration on anyone. It clearly 
says, in one section, that an agency ``may'' use arbitration 
``if the parties agree to'' it.\62\ In another, it says that 
``Arbitration may be used . . . whenever all parties 
consent.''\63\
---------------------------------------------------------------------------
    \62\5 U.S.C. Sec.  572.
    \63\5 U.S.C. Sec.  575(a)(1).
---------------------------------------------------------------------------
    Moreover, the Act emphasizes that consent to arbitration 
may not be coerced. ``An agency may not require any person to 
consent to arbitration as a condition of entering into a 
contract or obtaining a benefit.''\64\
---------------------------------------------------------------------------
    \64\5 U.S.C. Sec.  575(a)(3).
---------------------------------------------------------------------------
    In addition, the Act recognizes that arbitration is not 
appropriate for all agency disputes. It lists six broad factors 
agencies must consider to determine if the use of arbitration 
is appropriate.\65\ In practice, federal agencies prefer 
mediation over arbitration to settle disputes.\66\
---------------------------------------------------------------------------
    \65\5 U.S.C. Sec.  572(b). These factors include consideration of 
whether a definitive or authoritative resolution of the dispute is 
needed for precedential value, whether the dispute raises significant 
questions of government policy that require additional procedures, 
whether maintaining established policies is important to ensure 
consistent results, whether the matter significantly affects persons 
who are not parties to the proceedings, whether a complete public 
record of the proceeding needs to be kept, and whether the agency needs 
to maintain continuing jurisdiction over the matter.
    \66\The Administrative Dispute Resolution Act authorizes federal 
agencies to use mediation as an alternative means of dispute 
resolution. 5 U.S.C. Sec.  571(3). The difference between mediation and 
arbitration is that, in mediation, a mediator helps the parties find a 
mutually acceptable resolution of their dispute. In arbitration, the 
arbitrator decides the dispute and the parties must abide by his or her 
decision. Thompson v. Kellog Brown & Root, 2008 U.S. Dist. LEXIS 38425 
at 13 (E.D. Va. 2008).
---------------------------------------------------------------------------

The Alternative Dispute Resolution Act of 1998

    Congress has also authorized federal district courts to use 
court-annexed arbitration, whereby arbitrators issue non-
binding decisions, without prejudice to the parties' right to 
judicial review. The Judicial Improvements and Access to 
Justice Act of 1988\67\ created ``an experimental pilot program 
of court-annexed arbitration in selected Federal courts in 
order to encourage prompt, informal and inexpensive resolution 
of civil cases.''\68\ It allowed ten selected district courts 
to require arbitration in certain civil cases. Importantly, 
though, it also allowed any party that was dissatisfied with 
the arbitrator's decision, to ``demand'' a trial before a 
judge, who would decide the case anew, without regard to the 
arbitrator's decision.\69\
---------------------------------------------------------------------------
    \67\Public Law 100-702, Sec.  901, 102 Stat. 4659.
    \68\S. Rept. 100-889 at 30-31 (1988).
    \69\28 U.S.C. Sec.  655 note (28 U.S.C. Sec.  655(a) prior to 1998 
amendment).
---------------------------------------------------------------------------
    In addition, the 1988 law made it clear that arbitration 
was not appropriate in all cases. It expressly excepted cases 
involving ``complex or novel legal issues,'' cases in which 
``legal issues predominate over factual issues,'' or other 
cases for ``good cause.\70\
---------------------------------------------------------------------------
    \70\28 U.S.C. Sec.  652 note (28 U.S.C. Sec.  652(c) prior to 1998 
amendment).
---------------------------------------------------------------------------
    Ten years later, Congress passed the Alternative Dispute 
Resolution Act of 1998,\71\ to replace the pilot program with 
broader, permanent authority for federal district courts to use 
court-annexed arbitration. On the advice of the Justice 
Department and judges, Congress authorized district courts to 
use mediation and other forms of alternative dispute resolution 
as well as arbitration.\72\
---------------------------------------------------------------------------
    \71\Public Law 105-315, 112 Stat. 2993, codified at 28 U.S.C. Sec.  
651 et seq. The 1998 law amended provisions first enacted by section 
901(a) of the Judicial Improvements and Access to Justice Act of 1988.
    \72\28 U.S.C. Sec.  651; Hearing on H.R. 2603 before the House 
Judiciary Committee at 4-10 (Justice Department testimony) and 13-17 
(testimony of Chief Judge Hornby) (1997). Chief Judge Hornby testified 
that ``arbitration is not the most preferred method'' of alternative 
dispute resolution. ``In fact, it's one of the less preferred methods. 
. . . [W]e believe that requiring mandatory arbitration programs is not 
a good idea. . . . [W]e would encourage you . . . to make it 
permissive.'' Id. at 14.
---------------------------------------------------------------------------
    As the law now stands, all federal district courts can 
require mediation, but they can only use arbitration ``if the 
parties consent.''\73\ Moreover, the parties' consent may not 
be coerced. It must be ``freely and knowingly obtained.''\74\ 
The law also directs courts to exempt specific cases or 
categories of cases if arbitration ``would not be 
appropriate.''\75\ Parties dissatisfied with the arbitrator's 
decision may still ``demand'' a trial before a judge, who would 
decide the case anew, without regard to the arbitrator's 
decision.\76\
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    \73\28 U.S.C. Sec.  652(a); 28 U.S.C. Sec.  654(a).
    \74\28 U.S.C. Sec.  654(b)(1).
    \75\28 U.S.C. Sec.  652(b).
    \76\28 U.S.C. Sec.  657(c).
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Core principles

    Three important principles are apparent from this 
historical review. The first is that arbitration must be 
voluntary. One side cannot impose arbitration on the other. 
Both sides must willingly agree to submit their dispute to 
arbitration. The Arbitration Act, the Administrative Dispute 
Resolution Act of 1996, and the Alternative Dispute Resolution 
Act of 1998 all make arbitration voluntary, not mandatory.\77\
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    \77\All three laws reflect the principle that ``a party cannot be 
required to submit to arbitration any dispute which he has not agreed 
so to submit.'' United Steelworkers of America v. Warrior & Gulf 
Navigation Co., 363 U.S. 574 (1960). See also Administrative Conference 
of the U.S., Agencies' Use of Alternative Means of Dispute Resolution, 
Recommendation No. 86-3 (1986) (``All parties to the dispute must 
knowingly consent to use the arbitration procedures. . . .'').
---------------------------------------------------------------------------
    The second is that arbitration is not appropriate in all 
cases.\78\ This fact is plainly recognized in the 
Administrative Dispute Resolution Act, which lists six factors 
that make arbitration inappropriate to resolve a particular 
dispute. These factors require agencies to consider not using 
arbitration when a definitive resolution of the dispute is 
needed for precedential value, when significant government 
policies are involved, when maintaining established policies 
and consistent results are important, when the decision will 
affect persons who are not parties to the proceeding, when a 
full public record is needed, or when the agency needs to 
maintain continuing jurisdiction over the matter.\79\
---------------------------------------------------------------------------
    \78\There is bipartisan agreement on this point. Letter of Attorney 
General Loretta Lynch to President Obama transmitting the 2016 Report 
on Significant Developments in Federal Alternative Dispute Resolution 
(Jan. 9, 2017); Letter of Attorney General Alberto Gonzales to 
President Bush transmitting the Report for the President on the Use and 
Results of Alternative Dispute Resolution in the Executive Branch of 
the Federal Government (April 27, 2007) (both stating ``The Report 
concludes that alternative dispute resolution is often a useful tool, 
but is not necessarily appropriate for all cases.'').
    \79\5 U.S.C. Sec.  572(b). These factors were originally proposed 
by the Administrative Conference. H. Rept. 101-513 at 12 (1990). See 
also S. Rept. 101--543 at 9-10 (1990); Administrative Conference, 
Recommendation No. 86-3 (1986).
---------------------------------------------------------------------------
    Third, while arbitration offers a faster and less expensive 
means of resolving disputes in many cases,\80\ it should not be 
used to deprive unwilling participants of their legal rights by 
foreclosing the ``effective vindication'' of those rights.\81\
---------------------------------------------------------------------------
    \80\5 U.S.C. Sec.  571 note (congressional findings). ``By agreeing 
to arbitrate . . ., a party . . . trades the procedures and opportunity 
for review of the courtroom for the simplicity, informality, and 
expedition of arbitration.'' Mitsubishi Motors Corp. v. Soler Chrysler-
Plymouth, 473 U.S. 614, 628 (1985).
    \81\American Express Co. v. Italian Colors Restaurant, 570 U.S. 
228, 242 (2013) (J. Kagan, dissenting).
---------------------------------------------------------------------------

S. 2160

    S. 2160 violates all three of these core principles. First, 
S. 2160 is compulsory. It takes the right to go to court away 
from people who never agreed to surrender that right. Once the 
Forest Service\82\ designates a project for arbitration, 
arbitration becomes the only way people affected by the project 
can challenge it. Section 2(b)(4) of the bill makes arbitration 
``the exclusive means of review for the project.'' Section 
2(b)(5) states that a project designated for arbitration 
``shall not be subject to judicial review.'' Section 2(e)(3) 
provides that if someone tries to request judicial review of 
the project, the Forest Service can move to compel arbitration 
and the court ``shall compel arbitration.'' None of this is 
consistent with private arbitration under the Federal 
Arbitration Act, federal agency arbitration under the 
Administrative Dispute Resolution Act, or court-annexed 
arbitration under the Alternative Dispute Resolution Act.
---------------------------------------------------------------------------
    \82\S. 2160 uses the term ``Secretary,'' but section 2(a)(6) 
defines ``Secretary'' to mean ``the Secretary of Agriculture, acting 
through the Chief of the Forest Service.''
---------------------------------------------------------------------------
    Second, arbitration is not appropriate for the types of 
cases covered by S. 2160. Arbitration works best in bilateral 
disputes in which the issues are few, fact specific, and 
quantitative.\83\ Arbitration is less suited to cases raising 
complex or novel legal issues or those in which legal issues 
predominate over factual ones.\84\ Federal agencies use it 
mostly to settle workplace disputes with their employees or 
procurement disputes with their contractors.\85\ S. 2160, on 
the other hand, would compel arbitration of the lawfulness of 
highly complex forest management issues implicating diverse 
public interests. Resolution of these issues involves 
``significant questions of Government policy,'' requires the 
maintenance of established policies, and ``significantly 
affects persons or organizations who are not parties'' to the 
arbitration proceeding. These are precisely the considerations 
that Congress said make arbitration inappropriate.\86\
---------------------------------------------------------------------------
    \83\Department of Justice, Developing Guidance for Binding 
Arbitration--A Handbook for Federal Agencies, 65 Fed. Reg. 50005, 50009 
(Aug. 16, 2000). ``Cases subject to arbitration should involve 
questions of fact or the application of well-established norms. . . .'' 
Administrative Conference of the U.S., Arbitration in Federal Programs, 
Recommendation No. 87-5 (1987).
    \84\28 U.S.C. Sec.  652 note (original exemption from arbitration 
for court-annexed arbitration). Congress amended this provision in 1998 
to give the courts still wider discretion to exempt cases in which 
arbitration ``would not be appropriate.'' 28 U.S.C. Sec.  652(b).
    \85\See generally, Report for the President on the Use and Results 
of Alternative Dispute Resolution in the Executive Branch of the 
Federal Government (April 27, 2007).
    \86\5 U.S.C. Sec.  572(b).
---------------------------------------------------------------------------
    Moreover, arbitration has traditionally been used as a 
substitute for trying a case in a trial court, not as a 
substitute for appellate review of a final agency action under 
the Administrative Procedure Act. In arbitration, as in a 
trial, parties are given an equal opportunity to present their 
case to a neutral decision maker who finds in favor of one or 
the other,\87\ based on which one is more persuasive.\88\ 
Judicial review of an agency action under the Administrative 
Procedure Act is fundamentally different. It is an appellate 
review of the agency's action, not a trial.\89\ The court 
reviews the administrative record to see if the agency complied 
with substantive and procedural legal requirements and upholds 
the agency's decision unless it is ``arbitrary and 
capricious.''\90\ The court does not engage in independent 
fact-finding\91\ or weigh the agency's decision against 
competing proposals. It does not decide what is best.\92\ It 
simply upholds the agency's decision unless the agency is 
clearly wrong.\93\
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    \87\In a trial, the court generally ``presume[s] nothing about the 
case's merits and divide[s] burdens of proof and production almost 
equally between the plaintiff and defendant.'' Jarita Mesa Livestock 
Grazing Association v. U.S. Forest Service, 58 F. Supp. 3d 1191, 1239 
(D. N.M. 2014); Northern New Mexicans Protecting Land Water& Rights v. 
United States, 2015 U.S. Dist. LEXIS 164739 at 25 (D. N.M. 2015).
    \88\Arbitrators generally apply the same burden of proof used in 
civil and administrative proceedings. R. Reuben, Constitutional 
Gravity: A Unitary Theory of Alternative Dispute Resolution and Public 
Civil Justice, 47 U.C.L.A. L. Rev. 949, 1074 (2000), citing Sea Island 
Broadcasting Corp. v. FCC, 627 F.2d 240, 243 (D.C. Cir. 1980) (``the 
`preponderance of evidence' standard is the traditional standard in 
civil and administrative proceedings'').
    \89\``Review of agency actions comes to the Court in the form of an 
appeal,'' rather than a trial, under the Administrative Procedure Act. 
Jarita Mesa, 58 F. Supp. 3d at 1238.
    \90\5 U.S.C. Sec.  706(2)(A) (requiring courts to ``hold unlawful 
and set aside agency actions, findings, and conclusions found to be . . 
. arbitrary, capricious, an abuse of discretion, or otherwise not in 
accordance with law.'' An action is arbitrary and capricious ``if the 
agency has relied on factors which Congress has not intended it to 
consider, entirely failed to consider an important aspect of the 
problem, offered an explanation for its decision that runs counter to 
the evidence before the agency, or is so implausible that it could not 
be ascribed to a difference in view or the product of agency 
expertise.'' Motor Vehicle Manufacturers Association of the United 
States, Inc. v. State Farm Mutual Auto Insurance Co., 463 U.S. 29, 43 
(1983).
    \91\``Judicial review of administrative agency decisions'' under 
the Administrative Procedure Act ``is based on the administrative 
record compiled by the agency, not on independent fact-finding by the . 
. . court.'' Alliance for the Wild Rockies v. U.S. Forest Service, 2016 
U.S. Dist. LEXIS 118574 at 7 (D. Ida. 2016), citing Camp v. Pitts, 4111 
U.S. 138, 142 (1973) (in applying the arbitrary and capricious 
standard, ``the focal point for judicial review should be the 
administrative record already in existence, not some new record made 
initially in the reviewing court'').
    \92\``A court is not to ask whether a regulatory decision is the 
best one possible or even whether it is better than the alternatives. 
Rather, a court must uphold [the agency's decision] if the agency has 
`examine[d] the relevant [considerations] and articulate[d] a 
satisfactory explanation for its action[,] including a rational 
connection between the facts found and the choice made.''' FERC v. 
Electric Power Supply Association, 136 S. Ct. 760, 782 (2016), quoting 
Motor Vehicle Manufacturers, 463 U.S. at 43.
    \93\Mt. St. Helens Mining & recovery Ltd. Partnership v. United 
States, 384 F.3d 721 (9th Cir. 2004), quoting California Trout v. 
Schaefer, 58 F.3d 469 473 (9th Cir. 1995) (a ``court will overturn an 
agency's decision only if the agency committed a `clear error of 
judgment.''').
---------------------------------------------------------------------------
    S. 2160 tries to use arbitration, not as a substitute for 
the Forest Service's pre-decisional administrative review 
process,\94\ but as a substitute for judicial review of the 
Forest Service's final decision--in other words, not as a 
substitute for a trial, but for an appeal. In so doing, it 
mixes elements of arbitration, by structuring the arbitrator's 
task as considering competing proposals and choosing the best 
one, with the Administrative Procedure Act's standard of 
review. The resulting hybrid is an unsuitable substitute for 
judicial review.
---------------------------------------------------------------------------
    \94\Section 105 of the Healthy Forests Restoration Act of 2003 
directed the Forest Service to ``establish a pre-decisional 
administrative review process . . . [to] serve as the sole means by 
which a person can seek administrative review regarding an authorized 
hazardous fuel reduction project on Forest Service land.'' 16 U.S.C. 
Sec.  6515. Section 428 of the Consolidated Appropriations Act of 2012 
subsequently directed the Forest Service to apply the pre-decisional 
administrative review process to all of the Forest Service's proposed 
forest management actions documented with a record of decision or 
decision notice, in place of a post-decisional administrative appeal 
process. 16 U.S.C. Sec.  6515 note. The process is codified at 36 
C.F.R. Part 218. See 78 Fed. Reg. 18481 (Mar. 27, 2013).
---------------------------------------------------------------------------
    S. 2160 limits the projects subject to this unorthodox 
procedure to certain forest management projects that reduce 
either hazardous fuels or the risk of insect or disease 
infestation. These challenges typically claim that the Forest 
Service has violated the National Environmental Policy Act, the 
Endangered Species Act, the National Forest Management Act, or 
the Healthy Forests Restoration Act.\95\ Whether a project has 
violated any of these laws is a question of law, best left to 
judges rather than private arbitrators.\96\
---------------------------------------------------------------------------
    \95\E.g., Native Ecosystems Council v. Erickson, 2018 U.S. Dist. 
LEXIS 129199 at 2 (D. Mont. 2018).
    \96\See, e.g., Center for Biological Diversity v. Kempthorne, 588 
F.3d 701, 708 (9th Cir. 2009) (``whether an agency action is arbitrary 
and capricious is a legal question'').
---------------------------------------------------------------------------
    Third, S. 2160 arbitrarily deprives environmental groups of 
their right to an adequate forum in which they can effectively 
vindicate their statutory rights. As already discussed, the 
Supreme Court has upheld the use of arbitration to decide 
statutory claims ``so long as the prospective litigant 
effectively may vindicate its statutory cause of action'' in 
the arbitration proceeding.\97\ ``By agreeing to arbitrate a 
statutory claim, a party does not forgo the substantive rights 
afforded by the statute; it only submits to their resolution in 
an arbitral, rather than a judicial forum.''\98\
---------------------------------------------------------------------------
    \97\Mitsubishi, 473 U.S. at 637.
    \98\473 U.S. at 628. See also Nesbitt v. FCNH, Inc., 811 F.3d 371, 
377 (10th Cir. 2016), quoting Shankle v. B-G Maintenance Management of 
Colorado, Inc., 163 F.3d 1230, 1235 (10th Cir. 1999) (``an arbitration 
agreement that prohibits use of the judicial forum as a means of 
resolving statutory claims must also provide for an effective and 
accessible alternative forum'').
---------------------------------------------------------------------------
    S. 2160 would prevent environmental groups from directly 
and exclusively challenging a project's lawfulness. As we have 
seen, most challenges to hazardous fuel reduction projects are 
based on a claim that the Forest Service's approval of the 
project violates one or more federal environmental laws. But 
under S. 2160, it is not enough for an opponent to show that 
the project violates a law; the opponent must propose an 
alternative project that serves the same purpose and meets the 
same needs as the Forest Service's project as well. Section 
2(e)(2)(A) gives the opponent only 30 days in which to complete 
this feat. Section 2(e)(2)(C) provides that if the opponent 
fails to meet this heavy burden, it loses its standing to 
arbitrate the case. In other words, in order to prevail on its 
claim that the Forest Service project cannot legally be done, 
the opponent must prove, by a preponderance of evidence,\99\ 
that essentially the same project can legally be done in an 
another way.
---------------------------------------------------------------------------
    \99\S. 2160 is silent on the standard of review the arbitrator 
should apply to the opponent's alternative proposal. As previously 
noted, arbitrators generally apply the same burden of proof used in 
civil and administrative proceedings, which is a preponderance of 
evidence. See footnote 88 above. ``Preponderance of the evidence . . . 
means the greater weight of evidence, evidence which is more convincing 
that the evidence which his offered in opposition to it.'' Hale v. 
Department of Transportation, 772 F.2d 882, 885 (Fed. Cir. 1985).
---------------------------------------------------------------------------
    Even if an opponent is able to meet the burden of proposing 
an alternative project, section 2(i) of the bill stacks the 
deck against the opponent's alternative proposal. It permits 
the arbitrator to rule against the Forest Service's proposal 
only if it is arbitrary and capricious. The arbitrary and 
capricious standard is highly deferential.\100\ It affords the 
Forest Service's decision ``a presumption of regularity,'' 
which can only be overcome if the agency committed a ``clear 
error of judgment.''\101\ S. 2160 affords no such deference or 
presumption to the opponent's alternative proposal.
---------------------------------------------------------------------------
    \100\The arbitrary and capricious ``standard of review is a narrow 
one. The court is not empowered to substitute its judgment for that of 
the agency.'' Citizens to Preserve Overton Park v. Department of 
Transportation, 401 U.S. 402, 416 (1971). An agency's decision must be 
upheld so long as it ``was based on a consideration of the relevant 
factors and . . . there has been [no] clear error of judgment.'' Id. 
See also footnotes 90 and 92 above.
    \101\San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 
581, 601 (9th Cir. 2014).
---------------------------------------------------------------------------
    Moreover, it is not at all clear from the text of S. 2160, 
whether an arbitrator would be able to enjoin the Forest 
Service from proceeding with a project pending the arbitrator's 
final decision. Normally, arbitrators are given the power to 
grant preliminary injunctions either expressly in the 
arbitration agreement or by incorporation of the rules of the 
American Arbitration Association into the arbitration 
agreement.\102\ In addition, courts have normally been willing 
to grant preliminary injunctions pending arbitration, even 
though the Arbitration Act requires them to stay the trial 
until such arbitration has been completed.\103\ The courts have 
reasoned that the Arbitration Act's requirement that courts 
stay their trial proceedings until arbitration has been 
completed only extends to the trial itself and not to 
preliminary injunctions or other pre-trial proceedings.\104\ 
Thus, ``An injunction to preserve the status quo pending 
arbitration may be issued . . . where it is necessary to 
prevent conduct by the party enjoined from rendering the 
arbitral process a hollow formality in those instances where . 
. . the arbitral award when rendered could not return the 
parties substantially to the status quo ante.''\105\ 
Preliminary relief is especially important in timber-cutting 
cases to prevent the Forest Service from proceeding with a 
project before the arbitrators make a final determination. A 
decision in favor of the opponent would be ``a hollow 
formality'' after the trees are cut.\106\
---------------------------------------------------------------------------
    \102\American Arbitration Association, Commercial Arbitration Rules 
and Mediation Procedures, R-37 (2013) (``The arbitrator may take 
whatever interim measures he or she deems necessary, including 
injunctive relief . . . .'').
    \103\E.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bradley, 
756 F.2d 1048, 753 (4th Cir. 1985) (holding ``that where a dispute is 
subject to mandatory arbitration under the Federal Arbitration Act, a 
district court has the discretion to grant a preliminary injunction to 
preserve the status quo pending the arbitration of the parties' dispute 
if the enjoined conduct would render that process a `hollow 
formality.''').
    \104\756 F.2d at 1052.
    \105\756 F.2d at 1053, quoting Lever Brothers Co. v. International 
Chemical Workers Union, Local 217,554 F.2d 115, 123 (4th Cir. 1976).
    \106\``Environmental injury, by its nature, can seldom be 
adequately remedied by money damages and is often permanent or at least 
of long duration, i.e., irreparable. If such injury is sufficiently 
likely, therefore, the balance of harms will usually favor the issuance 
of an injunction to protect the environment.'' Amoco Production Co. v. 
Gambell, 480 U.S. 531, 545 (1987).
---------------------------------------------------------------------------
    But S. 2160 does not give the Forest Service's arbitrators 
authority to grant preliminary injunctions. It does not provide 
for arbitration agreements that might and it does not apply the 
rules of the American Arbitration Association to Forest Service 
arbitrations. Moreover, by providing that the Forest Service 
projects that are subject to arbitration under the bill ``shall 
not be subject to judicial review,'' the bill creates a strong 
inference that courts may not be able grant preliminary 
injunctions. Unlike section 3 of the Arbitration Act, which 
requires courts to stay ``trials,'' section 2(b)(5) of the bill 
bars ``judicial review.'' The concept of a ``proceeding for 
judicial review'' in the Administrative Procedure Act is 
broader than that of a ``trial'' in the Arbitration Act. Under 
the Administrative Procedure Act, ``judicial review'' embraces 
``any applicable form of legal action, including actions for 
declaratory judgments or writs of prohibitory or mandatory 
injunction or habeas corpus.''\107\ As a result, it appears 
that the bill's ban on ``judicial review'' may preclude 
preliminary relief needed to preserve the status quo pending 
the outcome of arbitration.
---------------------------------------------------------------------------
    \107\5 U.S.C. Sec. 703; Jarita Mesa Livestock Grazing Association, 
58 F. Supp. 3d at 1238.
---------------------------------------------------------------------------
    Simply put, the arbitration proceeding mandated by S. 2160 
would not allow environmental groups to effectively vindicate 
their rights, it would ``chok[e] off'' their ability to 
effectively challenge the Forest Service's project, and it 
``operates to confer immunity'' on the Forest Service ``from 
``potentially meritorious federal claims.''\108\
---------------------------------------------------------------------------
    \108\American Express Co. v. Italian Colors Restaurant, 570 U.S. 
228, 240 (2013) (J. Kagan, dissenting).
---------------------------------------------------------------------------

Conclusion

    Like our colleagues, we recognize that many of our national 
forests are in urgent need of thinning to reduce hazardous fuel 
loads, to reduce the risk of catastrophic wildfires, and to 
restore forest health. But we cannot agree that replacing 
judicial review with forced arbitration is either necessary or 
even a useful way to promote forest health.\109\
---------------------------------------------------------------------------
    \109\Congress has already taken a number of steps to expedite 
hazardous fuel reduction projects, by streamlining environmental 
reviews (16 U.S.C. Sec. 6514), administrative procedures (16 U.S.C. 
Sec. 6515), and even judicial review (16 U.S.C. Sec. 6516). In 
addition, the courts already possess the power to sanction litigants 
that file frivolous lawsuits that ``cause unnecessary delay or needless 
increase . . . the cost of litigation.'' Federal Rules of Civil 
Procedure, rule 11.
---------------------------------------------------------------------------
    Nor do we share our colleagues' unfavorable view of 
environmental litigation. Although not universally appreciated, 
environmental groups perform a valuable public service. Our 
laws require the Forest Service to manage the national forests, 
not just for their timber, but for recreation, for fish and 
wildlife, and for natural scenic, scientific, and historical 
values, ``in the combination that will best meet the present 
and future needs of the American people.''\110\ As the Supreme 
Court has observed, this is an ``enormously complicated task,'' 
which requires ``striking a balance among the many competing 
uses'' of our forests.\111\
---------------------------------------------------------------------------
    \110\43 U.S.C. Sec. 1702(c); National Mining Association v. Zinke, 
877 F.3d 845, 872 (9th Cir. 2017).
    \111\Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 58 
(2004).
---------------------------------------------------------------------------
    In challenging a Forest Service project that it considers 
harmful to fish and wildlife, or natural scenic, scientific, 
and historical values, an environmental group is not only 
championing the interests of its members but serving the public 
more broadly by ensuring the legitimacy of the Forest Service's 
actions. By preserving their access to the courts, we help 
ensure that Forest Service decisions are the product of 
reasoned decision making and strike a proper balance.
    For these reasons, we opposed reporting S. 2160 and cannot 
support its passage by the Senate.

                        CHANGES IN EXISTING LAW

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee notes that no 
changes in existing law are made by the bill as ordered 
reported.

                                  [all]
```