Section 1 Short title
This Act may be cited as the “Forest Litigation Reform Act of 2021”.
Forest Litigation Reform Act of 2021
A BILL
To establish an arbitration process pilot program as an alternative dispute resolution process for certain objections or protests to qualified forest management activities, and for other purposes.
Sec. 2 No attorney fees for forest management activity challenges
Notwithstanding section 1304 of title 31, United States Code, no award may be made under section 2412 of title 28, United States Code, and no amounts may be obligated or expended from the Claims and Judgment Fund of the United States Treasury to pay any fees or other expenses under such sections to any plaintiff related to an action challenging a qualified forest management activity.
Sec. 3 Injunctive relief
Balancing short- and long-Term effects of forest management activities in considering injunctive relief— As part of its weighing the equities while considering any request for an injunction that applies to any agency action as part of a qualified forest management activity, the court reviewing the agency action shall balance the impact to the ecosystem likely affected by the forest management activity of—
the short- and long-term effects of undertaking the agency action; against
the short- and long-term effects of not undertaking the action.
Time limitations for injunctive relief—
In general— Subject to paragraph (2), the length of any preliminary injunctive relief and stays pending appeal that applies to any agency action as part of a forest management activity, shall not exceed 60 days.
Renewal—
In general— A court of competent jurisdiction may issue one or more renewals of any preliminary injunction, or stay pending appeal, granted under paragraph (1).
Updates— In each renewal of an injunction in an action, the parties to the action shall present the court with updated information on the status of the authorized forest management activity.
Sec. 4 Use of arbitration instead of litigation to address challenges to forest management activities
Discretionary arbitration process pilot program—
In general— The Secretary of Agriculture, with respect to National Forest System lands, and the Secretary of the Interior, with respect to public lands, shall each establish a discretionary arbitration pilot program as an alternative dispute resolution process for the activities described in paragraph (2). Such arbitration pilot program shall take place in lieu of judicial review for the activities described in paragraph (2).
Activities described— The Secretary concerned, at the sole discretion of the Secretary, may designate objections or protests to qualified forest management activities for arbitration under the arbitration pilot program established under paragraph (1).
Maximum amount of arbitrations—
In general— Under the arbitration pilot program, the Secretary concerned may not arbitrate more than 10 objections or protests to qualified forest management activities in a fiscal year in—
each Forest Service Region; and
each State Region of the Bureau of Land Management.
Not subject to judicial review— A determination made by the Secretary concerned that an objection or protest to a qualified forest management activity is an activity described under paragraph (2) shall not be subject to judicial review.
Determining amount of arbitrations— An objection or protest to a qualified forest management activity shall not be counted towards the limitation on number of arbitrations under paragraph (3) unless—
on the date such objection or protest is designated for arbitration, the qualified forest management activity for which such objection or protest is filed has not been the subject of arbitration proceedings under the pilot program; and
the arbitration proceeding has commenced with respect to such objection or protest.
Termination—
In general— The pilot programs established pursuant to paragraph (1) shall terminate on the date that is 7 years after the date of the enactment of this Act.
Activity in arbitration— An objection or protest to a qualified forest management activity that has commenced but has not completed arbitration on the date of termination under subparagraph (A) shall continue until such arbitration is completed.
Intervening parties—
Requirements— Any person that submitted a public comment on the qualified forest management activity that is subject to arbitration may intervene in the arbitration—
by endorsing—
the qualified forest management activity; or
the modification proposal submitted under subparagraph (B); or
by submitting a proposal to further modify the qualified forest management activity.
Deadline for submission— With respect to an objection or protest that is designated for arbitration under this subsection (a), a request to intervene in an arbitration must be submitted not later than the date that is 30 days after the date on which such objection or protest was designated for arbitration.
Multiple parties— Multiple intervening parties may submit a joint proposal so long as each intervening party meets the eligibility requirements of paragraph (1).
Appointment of arbitrator—
Appointment— The Secretary of Agriculture and the Secretary of the Interior shall jointly develop and publish a list of not fewer than 20 individuals eligible to serve as arbitrators for the pilot programs under this section.
Qualifications— In order to be eligible to serve as an arbitrator under this subsection, an individual shall be, on the date of the appointment of such arbitrator—
certified by the American Arbitration Association; and
not a registered lobbyist.
Selection of arbitrator—
In general— For each arbitration commenced under this section, the Secretary concerned and each applicable objector or protestor shall agree, not later than 14 days after the agreement process is initiated, on a mutually acceptable arbitrator from the list published under this subsection.
Appointment after 14 days— In the case of an agreement with respect to a mutually acceptable arbitrator not being reached within the 14-day limit described in subparagraph (A), the Secretary concerned shall appoint an arbitrator from the list published under this subsection.
Selection of proposals—
In general— The arbitrator appointed under subsection (c)—
may not modify any of the proposals submitted with the objection, protest, or request to intervene; and
shall select to be conducted—
the qualified forest management activity, as approved by the Secretary; or
a proposal submitted by an objector or an intervening party.
Selection criteria— An arbitrator shall, when selecting a proposal, consider—
whether the proposal is consistent with the applicable forest plan, laws, and regulations;
whether the proposal can be carried out by the Secretary concerned; and
the effect of each proposal on—
forest health;
potential losses of life and property;
habitat diversity;
wildfire potential;
insect and disease potential;
timber production; and
the implications of a resulting decline in forest health, loss of habitat diversity, wildfire, or insect or disease infestation, given fire and insect and disease historic cycles, on—
potential losses of life and property;
domestic water costs;
wildlife habitat loss; and
other economic and social factors.
Effect of decision— The decision of an arbitrator with respect to the qualified forest management activity shall—
not be considered a major Federal action;
be binding; and
not be subject to judicial review, except as provided in section 10(a) of title 9, United States Code.
Deadline for completion— Not later than 90 days after the date on which the arbitration is filed with respect to the qualified forest management activity, the arbitration process shall be completed.
Sec. 5 Definition
In this Act:
Collaborative process— The term collaborative process means a process relating to the management of National Forest System lands or public lands by which a project or forest management activity is developed and implemented by the Secretary concerned through collaboration with multiple interested persons representing diverse interests.
Community wildfire protection plan— The term community wildfire protection plan has the meaning given that term in section 101 of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6511).
National forest system— The term National Forest System has the meaning given that term in section 11(a) of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1609(a)).
Public lands— The term public lands has the meaning given that term in section 103 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1702), except that the term includes Coos Bay Wagon Road Grant lands and Oregon and California Railroad Grant lands.
Qualified forest management activity— The term qualified forest management activity means any forest management activity that—
will occur on lands identified as the Secretary concerned as suitable for timber production; and
meets at least one of the following conditions:
The forest management activity will occur on lands designated by the Secretary (or designee thereof) pursuant to section 602(b) of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6591a(b)), notwithstanding whether such forest management activity is initiated prior to the date of enactment of this Act.
The forest management activity is developed through a collaborative process.
The forest management activity is proposed by a resource advisory committee.
The forest management activity is covered by a community wildfire protection plan.
Resource advisory committee— The term resource advisory committee has the meaning given that term in section 201 of the Secure Rural Schools and Community Self-Determination Act of 2000 (16 U.S.C. 7121).