II 

117TH CONGRESS 

1ST SESSION S. 2564 

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

may use alternative dispute resolution in lieu of judicial review for 

certain projects. 

IN THE SENATE OF THE UNITED STATES 

JULY 29, 2021 

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

A BILL 

To establish a pilot program under which the Chief of the 

Forest Service may use alternative dispute resolution 

in lieu of judicial review for certain projects. 

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: 


pbinns on DSKJLVW7X2PROD with BILLS
2 

•S 2564 IS

1 (1) ARBITRATOR.—The term ‘‘arbitrator’’ 

2 means a person— 

3 (A) selected by the Secretary under sub4 section (d)(1); and 

5 (B) that meets the qualifications under 

6 subsection (d)(2). 

7 (2) LAND AND RESOURCE MANAGEMENT

8 PLAN.—The term ‘‘land and resource management 

9 plan’’ means a plan developed under section 6 of the 

10 Forest and Rangeland Renewable Resources Plan11 ning Act of 1974 (16 U.S.C. 1604). 

12 (3) PARTICIPANT.—The term ‘‘participant’’ 

13 means an individual or entity that, with respect to 

14 a project— 

15 (A) has exhausted the administrative re16 view process under part 218 of title 36, Code 

17 of Federal Regulations (or successor regula18 tions); or 

19 (B) in the case of a project that is cat20 egorically excluded for purposes of the National 

21 Environmental Policy Act of 1969 (42 U.S.C. 

22 4321 et seq.), has participated in a collabo23 rative process under clause (i) or (ii) of sub24 section (c)(1)(A). 


pbinns on DSKJLVW7X2PROD with BILLS
3 

•S 2564 IS

1 (4) PILOT PROGRAM.—The term ‘‘pilot pro2 gram’’ means the pilot program implemented under 

3 subsection (b)(1). 

4 (5) PROJECT.—The term ‘‘project’’ means a 

5 project described in subsection (c). 

6 (6) SECRETARY.—The term ‘‘Secretary’’ means 

7 the Secretary of Agriculture, acting through the 

8 Chief of the Forest Service. 

9 (b) ARBITRATION PILOT PROGRAM.— 

10 (1) IN GENERAL.—Not later than 2 years after 

11 the date of enactment of this Act, the Secretary 

12 shall issue a final rule to implement an arbitration 

13 pilot program, to be carried out in the States of 

14 Idaho, Montana, and Wyoming, as an alternative 

15 dispute resolution in lieu of judicial review for 

16 projects described in subsection (c). 

17 (2) LIMITATION ON NUMBER OF PROJECTS.— 

18 (A) IN GENERAL.—The Secretary may not 

19 designate for arbitration under the pilot pro20 gram more than 2 projects per calendar year. 

21 (B) EXCEPTION.—If the Secretary des22 ignates a project for arbitration under the pilot 

23 program, and no participant initiates arbitra24 tion under subsection (e)(2), that project shall 


pbinns on DSKJLVW7X2PROD with BILLS
4 

•S 2564 IS

1 not count against the limitation on the number 

2 of projects under subparagraph (A). 

3 (3) APPLICABLE PROCESS.—Except as other4 wise provided in this Act, the pilot program shall be 

5 carried out in accordance with subchapter IV of 

6 chapter 5 of title 5, United States Code. 

7 (4) EXCLUSIVE MEANS OF REVIEW.—The alter8 native dispute resolution process under the pilot pro9 gram for a project designated for arbitration under 

10 the pilot program shall be the exclusive means of re11 view for the project. 

12 (5) NO JUDICIAL REVIEW.—A project that the 

13 Secretary has designated for arbitration under the 

14 pilot program shall not be subject to judicial review. 

15 (c) DESCRIPTION OF PROJECTS.— 

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

17 discretion of the Secretary, may designate for arbi18 tration projects that— 

19 (A)(i) are developed through a collabo20 rative process (within the meaning of section 

21 603(b)(1)(C) of the Healthy Forest Restoration 

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

23 (ii) are carried out under the Collaborative 

24 Forest Landscape Restoration Program estab25 lished under section 4003 of the Omnibus PubVerDate Sep 11 2014 04:01 Aug 04, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2564.IS S2564

pbinns on DSKJLVW7X2PROD with BILLS
5 

•S 2564 IS

1 lic Land Management Act of 2009 (16 U.S.C. 

2 7303); or 

3 (iii) are identified in a community wildfire 

4 protection plan (as defined in section 101 of the 

5 Healthy Forests Restoration Act of 2003 (16 

6 U.S.C. 6511)); 

7 (B) have as a purpose— 

8 (i) reducing hazardous fuels; or 

9 (ii) reducing the risk of, or mitigating, 

10 insect or disease infestation; and 

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

12 wildland-urban interface (as defined in section 

13 101 of the Healthy Forests Restoration Act of 

14 2003 (16 U.S.C. 6511)). 

15 (2) INCLUSION.—In designating projects for ar16 bitration, the Secretary may include projects that 

17 are categorically excluded for purposes of the Na18 tional Environmental Policy Act of 1969 (42 U.S.C. 

19 4321 et seq.). 

20 (d) ARBITRATORS.— 

21 (1) IN GENERAL.—The Secretary shall develop 

22 and publish a list of not fewer than 15 individuals 

23 eligible to serve as arbitrators for the pilot program. 


pbinns on DSKJLVW7X2PROD with BILLS
6 

•S 2564 IS

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

2 as an arbitrator under this subsection, an individual 

3 shall be— 

4 (A) recognized by— 

5 (i) the American Arbitration Associa6 tion; or 

7 (ii) a State arbitration program; or 

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

9 (e) INITIATION OF ARBITRATION.— 

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

11 the date on which the Secretary issues the applicable 

12 decision notice or decision memo with respect to a 

13 project, the Secretary shall— 

14 (A) notify each applicable participant and 

15 the Clerk of the United States District Court 

16 for the district in which the project is located 

17 that the project has been designated for arbi18 tration under the pilot program; and 

19 (B) include in the applicable decision no20 tice or decision memo a statement that the 

21 project has been designated for arbitration. 

22 (2) INITIATION.— 

23 (A) IN GENERAL.—A participant that has 

24 received a notification under paragraph (1) and 

25 is seeking to initiate arbitration for the applicaVerDate Sep 11 2014 04:01 Aug 04, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2564.IS S2564

pbinns on DSKJLVW7X2PROD with BILLS
7 

•S 2564 IS

1 ble project under the pilot program shall file a 

2 request for arbitration with the Secretary not 

3 later than 30 days after the date of receipt of 

4 the notification. 

5 (B) REQUIREMENT.—The request under 

6 subparagraph (A) shall include an alternative 

7 proposal for the applicable project that— 

8 (i) describes each modification sought 

9 by the participant with respect to the 

10 project; and 

11 (ii) is consistent with the goals and 

12 objectives of the applicable land and re13 source management plan, all applicable 

14 laws, regulations, legal precedent and pol15 icy directives, and the purpose and need 

16 for the project. 

17 (C) FAILURE TO MEET REQUIREMENTS.— 

18 A participant who fails to meet the require19 ments of subparagraphs (A) and (B) shall be 

20 considered to have forfeited their standing to 

21 initiate arbitration under this paragraph. 

22 (3) COMPELLED ARBITRATION.— 

23 (A) IN GENERAL.—For any request for ju24 dicial review with respect to a project that the 


pbinns on DSKJLVW7X2PROD with BILLS
8 

•S 2564 IS

1 Secretary has designated for arbitration under 

2 the pilot program— 

3 (i) the Secretary shall file in the ap4 plicable court a motion to compel arbitra5 tion in accordance with this Act; and 

6 (ii) the applicable court shall compel 

7 arbitration in accordance with this Act. 

8 (B) FEES AND COSTS.—For any motion 

9 described in subparagraph (A) for which the 

10 Secretary is the prevailing party, the applicable 

11 court shall award to the Secretary— 

12 (i) full or partial court costs; and 

13 (ii) full or partial attorney’s fees. 

14 (f) SELECTION OF ARBITRATOR.—For each arbitra15 tion initiated under this Act— 

16 (1) each applicable participant shall propose 2 

17 arbitrators; and 

18 (2) the Secretary shall select 1 arbitrator from 

19 the list of arbitrators proposed under paragraph (1). 

20 (g) RESPONSIBILITIES OF ARBITRATOR.— 

21 (1) IN GENERAL.—An arbitrator— 

22 (A) shall address all claims or modifica23 tions sought by each party seeking arbitration 

24 with respect to a project under this Act; but 


pbinns on DSKJLVW7X2PROD with BILLS
9 

•S 2564 IS

1 (B) may consolidate into a single arbitra2 tion all requests to initiate arbitration by all 

3 participants with respect to a project. 

4 (2) CONSIDERATION OF PROPOSED PROJECTS

5 AND DECISION.—For each project for which arbitra6 tion has been initiated under this Act, the arbitrator 

7 shall make a decision with respect to the project 

8 by— 

9 (A) selecting the project, as approved by 

10 the Secretary; 

11 (B) selecting the alternative proposal sub12 mitted by the applicable participant in the re13 quest for initiation of arbitration for the project 

14 filed under subsection (e)(2)(A); or 

15 (C) rejecting both options described in sub16 paragraphs (A) and (B). 

17 (3) CONVENE HEARINGS.—In carrying out 

18 paragraph (2), the arbitrator may convene the Sec19 retary and the participant, including by telephone 

20 conference or other electronic means to consider— 

21 (A) the administrative record; 

22 (B) arguments and evidence submitted by 

23 the Secretary and the participant; 

24 (C) the project, as approved by the Sec25 retary; and 


pbinns on DSKJLVW7X2PROD with BILLS
10 

•S 2564 IS

1 (D) the alternative proposal submitted by 

2 the applicable participant in the request for ini3 tiation of arbitration for the project filed under 

4 subsection (e)(2)(A). 

5 (4) LIMITATIONS.—An arbitrator may not mod6 ify any project or alternative proposal contained in 

7 a request for initiation of arbitration of a participant 

8 under this Act. 

9 (h) INTERVENTION.—A party may intervene in an ar10 bitration under this Act if, with respect to the project to 

11 which the arbitration relates, the party— 

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

13 Federal Rules of Civil Procedure (or a successor 

14 rule); or 

15 (2) participated in the applicable collaborative 

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

17 (c)(1)(A). 

18 (i) SCOPE OF REVIEW.—In carrying out arbitration 

19 for a project, the arbitrator shall set aside the agency ac20 tion, findings, and conclusions found to be arbitrary, ca21 pricious, an abuse of discretion, or otherwise not in ac22 cordance with law, within the meaning of section 

23 706(2)(A) of title 5, United States Code. 

24 (j) DEADLINE FOR COMPLETION OF ARBITRATION.— 

25 Not later than 90 days after the date on which arbitration 


pbinns on DSKJLVW7X2PROD with BILLS
11 

•S 2564 IS

1 is initiated for a project under the pilot program, the arbi2 trator shall make a decision with respect to all claims or 

3 modifications sought by the participant that initiated the 

4 arbitration. 

5 (k) EFFECT OF ARBITRATION DECISION.—A decision 

6 of an arbitrator under this Act— 

7 (1) shall not be considered to be a major Fed8 eral action; 

9 (2) shall be binding; and 

10 (3) shall not be subject to judicial review, ex11 cept as provided in section 10(a) of title 9, United 

12 States Code. 

13 (l) ADMINISTRATIVE COSTS.— 

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

15 (A) be solely responsible for the profes16 sional fees of arbitrators participating in the 

17 pilot program; and 

18 (B) use funds made available to the Sec19 retary and not otherwise obligated to carry out 

20 subparagraph (A). 

21 (2) TRAVEL COSTS.—The Secretary— 

22 (A) shall be solely responsible for reason23 able travel costs associated with the participa24 tion of an arbitrator in any meeting conducted 

25 under subsection (g)(3); and 


pbinns on DSKJLVW7X2PROD with BILLS
12 

•S 2564 IS

1 (B) shall not be responsible for the travel 

2 costs of a participant under subsection (g)(3). 

3 (3) ATTORNEY’S FEES.—No arbitrator may 

4 award attorney’s fees in any arbitration brought 

5 under this Act. 

6 (m) REPORTS.— 

7 (1) IN GENERAL.—Not later than 2 years after 

8 the date on which the Secretary issues a final rule 

9 to implement the pilot program under subsection 

10 (b)(1), the Secretary shall submit to the Committee 

11 on Agriculture, Nutrition, and Forestry and the 

12 Committee on Energy and Natural Resources of the 

13 Senate and the Committee on Natural Resources of 

14 the House of Representatives, and publish on the 

15 website of the Forest Service, a report describing the 

16 implementation of the pilot program, including— 

17 (A) the reasons for selecting certain 

18 projects for arbitration; 

19 (B) an evaluation of the arbitration proc20 ess, including any recommendations for im21 provements to the process; 

22 (C) a description of the outcome of each 

23 arbitration; and 

24 (D) a summary of the impacts of each out25 come described in subparagraph (C) on the 


pbinns on DSKJLVW7X2PROD with BILLS
13 

•S 2564 IS

1 timeline for implementation and completion of 

2 the applicable project. 

3 (2) GAO REVIEWS AND REPORTS.— 

4 (A) REVIEW ON TERMINATION.—On termi5 nation of the pilot program under subsection 

6 (n), the Comptroller General of the United 

7 States shall review the implementation by the 

8 Secretary of the pilot program, including— 

9 (i) the reasons for selecting certain 

10 projects for arbitration under the pilot pro11 gram; 

12 (ii) the location and types of projects 

13 that were arbitrated under the pilot pro14 gram; 

15 (iii) a description of the outcomes of 

16 the projects that were arbitrated under the 

17 pilot program; 

18 (iv) a description of the participants 

19 who initiated arbitration under the pilot 

20 program; 

21 (v) a description and survey of the ar22 bitrators who participated in the pilot pro23 gram; 

24 (vi) the type and outcome of any re25 quests for judicial review with respect to a 


pbinns on DSKJLVW7X2PROD with BILLS
14 

•S 2564 IS

1 project that the Secretary designated for 

2 arbitration under the pilot program; and 

3 (vii) any other items the Comptroller 

4 General of the United States may find ap5 plicable for evaluating the pilot program. 

6 (B) REPORT.—After completion of the re7 view described in subparagraph (A) and not 

8 later than 1 year after termination of the pilot 

9 program under subsection (n), the Comptroller 

10 General of the United States shall submit to 

11 the Committee on Agriculture, Nutrition, and 

12 Forestry and the Committee on Energy and 

13 Natural Resources of the Senate and the Com14 mittee on Natural Resources of the House of 

15 Representatives a report, describing the results 

16 of the applicable review. 

17 (n) TERMINATION.—The Secretary may not des18 ignate a project for arbitration under the pilot program 

19 on or after the date that is 5 years after the date on which 

20 the Secretary issues a final rule to implement the pilot 

21 program under subsection (b)(1). 

22 (o) EFFECT.—Nothing in this Act affects the respon23 sibility of the Secretary to comply with— 

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

25 U.S.C. 1531 et seq.); 


pbinns on DSKJLVW7X2PROD with BILLS
15 

•S 2564 IS

1 (2) the National Environmental Policy Act of 

2 1969 (42 U.S.C. 4321 et seq.); or 

3 (3) other applicable laws. 

Æ 


pbinns on DSKJLVW7X2PROD with BILLS