II 

115TH CONGRESS 

1ST SESSION S. 2160 

To establish a pilot program under which the Chief of the Forest Service 

may use alternative dispute resolution in lieu of judicial review for 

certain projects. 

IN THE SENATE OF THE UNITED STATES 

NOVEMBER 16, 2017 

Mr. DAINES (for himself, Mr. RISCH, and Mr. CRAPO) introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources 

A BILL 

To establish a pilot program under which the Chief of the 

Forest Service may use alternative dispute resolution 

in lieu of judicial review for certain projects. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Protect Collaboration 

5 for Healthier Forests Act’’. 

6 SEC. 2. ALTERNATIVE DISPUTE RESOLUTION PILOT PRO7 GRAM. 

8 (a) DEFINITIONS.—In this Act: 


daltland on DSK30NT082PROD with BILLS
2 

•S 2160 IS

1 (1) PARTICIPANT.—The term ‘‘participant’’ 

2 means an individual or entity that files an objection 

3 or scoping comments on a draft environmental docu4 ment with respect to a project that is subject to an 

5 objection at the project level under part 218 of title 

6 36, Code of Federal Regulations (or successor regu7 lations). 

8 (2) PILOT PROGRAM.—The term ‘‘pilot pro9 gram’’ means the pilot program established under 

10 subsection (b). 

11 (3) PROJECT.—The term ‘‘project’’ means a 

12 project described in subsection (c). 

13 (4) SECRETARY.—The term ‘‘Secretary’’ means 

14 the Secretary of Agriculture, acting through the 

15 Chief of the Forest Service. 

16 (b) ARBITRATION PILOT PROGRAM.—Not later than 

17 180 days after the date of enactment of this Act, the Sec18 retary shall establish within Region 1 of the Forest Service 

19 an arbitration pilot program as an alternative dispute res20 olution process in lieu of judicial review for projects de21 scribed in subsection (c). 

22 (c) DESCRIPTION OF PROJECTS.— 

23 (1) IN GENERAL.—The Secretary, at the sole 

24 discretion of the Secretary, may designate for arbi25 tration projects that— 


daltland on DSK30NT082PROD with BILLS
3 

•S 2160 IS

1 (A)(i) are developed through a collabo2 rative process (within the meaning of section 

3 603(b)(1)(C) of the Healthy Forest Restoration 

4 Act of 2003 (16 U.S.C. 6591b(b)(1)(C))); 

5 (ii) are carried out under the Collaborative 

6 Forest Landscape Restoration Program estab7 lished under section 4003 of the Omnibus Pub8 lic Land Management Act of 2009 (16 U.S.C. 

9 7303); or 

10 (iii) are identified in a community wildfire 

11 protection plan (as defined in section 101 of the 

12 Healthy Forests Restoration Act of 2003 (16 

13 U.S.C. 6511)); 

14 (B) have as a purpose— 

15 (i) hazardous fuels reduction; or 

16 (ii) mitigation of insect or disease in17 festation; and 

18 (C) are located, in whole or in part, in a 

19 wildland-urban interface (as defined in section 

20 101 of the Healthy Forests Restoration Act of 

21 2003 (16 U.S.C. 6511)). 

22 (2) INCLUSION.—In designating projects for ar23 bitration, the Secretary may include projects that re24 ceive categorical exclusions for purposes of the NaVerDate Sep 11 2014 19:36 Nov 24, 2017 Jkt 079200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2160.IS S2160

daltland on DSK30NT082PROD with BILLS
4 

•S 2160 IS

1 tional Environmental Policy Act of 1969 (42 U.S.C. 

2 4321 et seq.). 

3 (d) LIMITATION ON NUMBER OF PROJECTS.—The 

4 Secretary may not designate for arbitration under the 

5 pilot program more than 2 projects per calendar year. 

6 (e) ARBITRATORS.— 

7 (1) APPOINTMENT.—The Secretary shall de8 velop and publish a list of not fewer than 15 individ9 uals eligible to serve as arbitrators for the pilot pro10 gram. 

11 (2) QUALIFICATIONS.—To be eligible to serve 

12 as an arbitrator under this subsection, an individual 

13 shall be— 

14 (A) certified by— 

15 (i) the American Arbitration Associa16 tion; or 

17 (ii) a State arbitration program; or 

18 (B) a fully retired Federal or State judge. 

19 (f) INITIATION OF ARBITRATION.— 

20 (1) IN GENERAL.—Not later than 7 days after 

21 the date on which the Secretary issues the final deci22 sion with respect to a project, the Secretary shall— 

23 (A) notify each applicable participant and 

24 the Clerk of the United States District Court 

25 for the district in which the project is located 


daltland on DSK30NT082PROD with BILLS
5 

•S 2160 IS

1 that the project has been designated for arbi2 tration in accordance with this Act; and 

3 (B) include in the decision document a 

4 statement that the project has been designated 

5 for arbitration. 

6 (2) INITIATION.— 

7 (A) IN GENERAL.—A participant may ini8 tiate arbitration regarding a project that has 

9 been designated for arbitration under this Act 

10 in accordance with— 

11 (i) sections 571 through 584 of title 

12 5, United States Code; and 

13 (ii) this paragraph. 

14 (B) REQUIREMENTS.—A request to initiate 

15 arbitration under subparagraph (A) shall— 

16 (i) be filed not later than the date 

17 that is 30 days after the date of the notifi18 cation by the Secretary under paragraph 

19 (1); and 

20 (ii) include an alternative proposal for 

21 the applicable project that describes each 

22 modification sought by the participant with 

23 respect to the project. 

24 (C) NO JUDICIAL REVIEW.—A project for 

25 which arbitration is initiated under subparaVerDate Sep 11 2014 19:36 Nov 24, 2017 Jkt 079200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2160.IS S2160

daltland on DSK30NT082PROD with BILLS
6 

•S 2160 IS

1 graph (A) shall not be subject to judicial re2 view. 

3 (3) COMPELLED ARBITRATION.— 

4 (A) MOTION TO COMPEL ARBITRATION.— 

5 (i) IN GENERAL.—If a participant 

6 seeks judicial review of a final decision 

7 with respect to a project, the Secretary 

8 may file in the applicable court a motion to 

9 compel arbitration in accordance with this 

10 Act. 

11 (ii) FEES AND COSTS.—For any mo12 tion described in clause (i) for which the 

13 Secretary is the prevailing party, the appli14 cable court shall award to the Secretary— 

15 (I) court costs; and 

16 (II) attorney’s fees. 

17 (B) ARBITRATION COMPELLED BY

18 COURT.—If a participant seeks judicial review 

19 of a project, the applicable court shall compel 

20 arbitration in accordance with this Act. 

21 (g) SELECTION OF ARBITRATOR.—For each arbitra22 tion commenced under this Act— 

23 (1) the Secretary shall propose 3 arbitrators 

24 from the list published under subsection (e)(1); and 


daltland on DSK30NT082PROD with BILLS
7 

•S 2160 IS

1 (2) the applicable participant shall select 1 arbi2 trator from the list of arbitrators proposed under 

3 paragraph (1). 

4 (h) RESPONSIBILITIES OF ARBITRATOR.— 

5 (1) IN GENERAL.—An arbitrator selected under 

6 subsection (e)— 

7 (A) shall address all claims of each party 

8 seeking arbitration with respect to a project 

9 under this Act; but 

10 (B) may consolidate into a single arbitra11 tion all requests to initiate arbitration by all 

12 participants with respect to a project. 

13 (2) SELECTION OF PROPOSALS.—An arbitrator 

14 shall make a decision with respect to each applicable 

15 request for initiation of arbitration under this Act 

16 by— 

17 (A) selecting the project, as approved by 

18 the Secretary; 

19 (B) selecting an alternative proposal sub20 mitted by the applicable participant; or 

21 (C) rejecting both projects described in 

22 subparagraphs (A) and (B). 

23 (3) LIMITATIONS.— 

24 (A) ADMINISTRATIVE RECORD.—The evi25 dence before an arbitrator under this subsection 


daltland on DSK30NT082PROD with BILLS
8 

•S 2160 IS

1 shall be limited solely to the administrative 

2 record for the project. 

3 (B) NO MODIFICATIONS TO PROPOSALS.— 

4 An arbitrator may not modify any proposal con5 tained in a request for initiation of arbitration 

6 of a participant under this Act. 

7 (i) INTERVENTION.—A party may intervene in an ar8 bitration under this Act if, with respect to the project to 

9 which the arbitration relates, the party— 

10 (1) meets the requirements of Rule 24(a) of the 

11 Federal Rules of Civil Procedure (or a successor 

12 rule); or 

13 (2) participated in the applicable collaborative 

14 process referred to in clause (i) or (ii) of subsection 

15 (c)(1)(A). 

16 (j) SCOPE OF REVIEW.—In carrying out arbitration 

17 for a project, the arbitrator shall set aside the agency ac18 tion, findings, and conclusions found to be arbitrary, ca19 pricious, an abuse of discretion, or otherwise not in ac20 cordance with law, within the meaning of section 

21 706(2)(A) of title 5, United States Code. 

22 (k) DEADLINE FOR COMPLETION OF ARBITRA23 TION.—Not later than 90 days after the date on which 

24 a request to initiate arbitration is filed under subsection 


daltland on DSK30NT082PROD with BILLS
9 

•S 2160 IS

1 (f)(2), the arbitrator shall make a decision with respect 

2 to the request to initiate arbitration. 

3 (l) EFFECT OF ARBITRATION DECISION.—A decision 

4 of an arbitrator under this Act— 

5 (1) shall not be considered to be a major Fed6 eral action; 

7 (2) shall be binding; and 

8 (3) shall not be subject to judicial review, ex9 cept as provided in section 10(a) of title 9, United 

10 States Code. 

11 (m) ADMINISTRATIVE COSTS.— 

12 (1) IN GENERAL.—The Secretary shall— 

13 (A) be solely responsible for the profes14 sional fees of arbitrators participating in the 

15 pilot program; and 

16 (B) use funds made available to the Sec17 retary and not otherwise obligated to carry out 

18 subparagraph (A). 

19 (2) ATTORNEY’S FEES.—No arbitrator may 

20 award attorney’s fees in any arbitration brought 

21 under this Act. 

22 (n) REPORTS.— 

23 (1) IN GENERAL.—Not later than 1 year after 

24 the date on which the pilot program is established, 

25 and annually thereafter, the Secretary shall submit 


daltland on DSK30NT082PROD with BILLS
10 

•S 2160 IS

1 to the Committee on Agriculture, Nutrition, and 

2 Forestry and the Committee on Energy and Natural 

3 Resources of the Senate and the Committee on Nat4 ural Resources of the House of Representatives, and 

5 publish on the website of Region 1 of the Forest 

6 Service, a report of not longer than 10 pages de7 scribing the implementation of the pilot program for 

8 the applicable year, including— 

9 (A) the reasons for selecting certain 

10 projects for arbitration; 

11 (B) an evaluation of the arbitration proc12 ess, including any recommendations for im13 provements to the process; 

14 (C) a description of the outcome of each 

15 arbitration; and 

16 (D) a summary of the impacts of each out17 come described in subparagraph (C) on the 

18 timeline for implementation and completion of 

19 the applicable project. 

20 (2) GAO REVIEWS AND REPORTS.— 

21 (A) INITIAL REVIEW.—Not later than 2 

22 years after the date on which the pilot program 

23 is established, the Comptroller General of the 

24 United States shall review the implementation 

25 by the Secretary of the pilot program. 


daltland on DSK30NT082PROD with BILLS
11 

•S 2160 IS

1 (B) REVIEW ON TERMINATION.—On termi2 nation of the pilot program under subsection 

3 (o), the Comptroller General of the United 

4 States shall review the implementation by the 

5 Secretary of the pilot program. 

6 (C) REPORT.—On completion of the review 

7 described in subparagraph (A) or (B), the 

8 Comptroller General of the United States shall 

9 submit to the Committee on Agriculture, Nutri10 tion, and Forestry and the Committee on En11 ergy and Natural Resources of the Senate and 

12 the Committee on Natural Resources of the 

13 House of Representatives a report describing 

14 the results of the applicable review. 

15 (o) TERMINATION.—The pilot program shall termi16 nate on the date that is 5 years after the date. 

17 (p) EFFECT.—Nothing in this Act affects the respon18 sibility of the Secretary to comply with— 

19 (1) the Endangered Species Act of 1973 (16 

20 U.S.C. 1531 et seq.); or 

21 (2) the National Environmental Policy Act of 

22 1969 (42 U.S.C. 4321 et seq.). 

Æ 


daltland on DSK30NT082PROD with BILLS