It seems like this is one of the few new ideas to surface on this recently. On this blog, I have previously suggested publicly documented mediation be used, but I am not as familiar with arbitration. I’d like to hear what others think who have experience with those processes.
Also, does anyone know about the USDA “pilot program”
to use arbitration and the results of that pilot?
Here’s an explanation in English:
Sec. 5 – Administrative Review, Arbitration.
Uses the objection process established in the Healthy Forest Restoration Act as the administrative review mechanism. This allows consolidation of objections, allows discussions with the objectors, and provides more rapid resolution.
Arbitration: This section establishes a pilot arbitration program to resolve disputes over projects carried out on Forest Management Emphasis Areas. Arbitration would be available to
anyone who filed an objection and was still not satisfied with the covered project. Demands for arbitration must be filed within 30 days and must include specific modifications sought for the covered project. An arbitrator named by the court must select either the project proposed or the project as modified by the party that filed the demand for arbitration, or an intervener. The decision of the arbitrator must be made within 90 days of the demand for arbitration, is final, and is not subject to further analysis or judicial review.
Below is the section:
SEC. 5. ADMINISTRATIVE REVIEW; ARBITRATION.
(a) ADMINISTRATIVE REVIEW.—Administrative review of a covered project shall occur only in accordance with the special administrative review process established by section 105 of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6515).
(1) IN GENERAL.—There is established in the Department of Agriculture a pilot program that—
(A) authorizes the use of arbitration instead of judicial review of a decision made following the special administrative review process for a covered project described in subsection (a); and
(B) shall be the sole means to challenge a covered project in a Forest Management Emphasis Area during the 15-year period beginning on the date that is 60 days after the date on which the Secretary assigns the acreage treatment requirements under section 4(a)(4)(B).
(2) ARBITRATION PROCESS PROCEDURES.—
(A) IN GENERAL.—Any person who sought administrative review for a covered project in accordance with subsection (a) and who is not satisfied with the decision made under the administrative review process may file a demand for arbitration in accordance with—(i) chapter 1 of title 9, United States Code; and (ii) this paragraph.
(B) REQUIREMENTS FOR DEMAND.—A demand for arbitration under subparagraph (A) shall—
(i) be filed not more than 30 days after the date on which the special administrative review decision is issued under subsection (a); and (ii) include a proposal containing the modifications sought to the covered project.
(C) INTERVENING PARTIES.—
(i) DEADLINE FOR SUBMISSION; REQUIREMENTS.—Any person that submitted a public comment on the covered project subject to the demand for arbitration may intervene in the arbitration under this subsection by submitting a proposal endorsing or modifying the covered project by the date that is 30 days after the date on which the demand for arbitration is filed under subparagraph (A).
(ii) MULTIPLE PARTIES.—Multiple objectors or intervening parties that meet the requirements of clause (i) may submit a joint proposal under that clause.
(D) APPOINTMENT OF ARBITRATOR.—The United States District Court in the district in which a covered project subject to a demand for arbitration filed under subparagraph (A) is located shall appoint an arbitrator to conduct the arbitration proceedings in accordance with this subsection.
(E) SELECTION OF PROPOSALS.—
(i) IN GENERAL.—An arbitrator appointed under subparagraph (D)— (I) may not modify any of the proposals submitted under this paragraph; and (II) shall select to be conducted—
(aa) a proposal submitted by an objector under subparagraph (B)(ii) or an intervening party under subparagraph (C); or (bb) the covered project, as approved by the Secretary.
(ii) SELECTION CRITERIA.—An arbitrator shall select the proposal that best meets the purpose and needs described in the environmental assessment conducted under section 4(b)(1) for the covered project.
(iii) EFFECT.—The decision of an arbitrator with respect to a selection under clause (i)(II)— (I) shall not be considered a major Federal action; (II) shall be binding; and (III) shall not be subject to judicial review.
(F) DEADLINE FOR COMPLETION.—Not later 90 days after the date on which a demand for arbitration is filed under subparagraph (A), the arbitration process shall be completed.