Arbitration in Barasso’s Bill: What Do You Think?

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).

(b) ARBITRATION.—

(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.

9 Comments

  1. The bottom line for this particular arbitration process is that it circumvents any applicable legal requirements (procedural or substantive). Failure to comply with the law would normally result in judicial direction to essentially select the no-action alternative. While an objecting party may submit this as an alternative for consideration, the arbitrator must select the alternative that ‘best meets the purpose and need’ for the project. By definition, the no-action alternative would not do this. It looks to me like the Forest Service would just need to get the purpose and need right and they’ll get what they want.

  2. Hope it was ok Sharon, but I just went through the post and removed all the line numbers as the post took up nearly half the homepage and was incredibly difficult to read/understand the way it was formatted.

    • Yes, thanks much Matthew!

      Jon, that’s not the way I see it. Failure to “follow the law” often means initially a settlement which becomes some combo of the FS and the plaintiffs’ preferred. One example is the S. Calif forest plans. They didn’t just stop forest planning, they did a deal with plaintiffs to include their preferred.

      I’m not sure I like this process, but it would be done more quickly and with less government expense, and would seem to be more transparent.

      • I guess I’d question how ‘often’ a ‘combo’ alternative is selected as a result of litigation (I don’t really know; I was thinking about projects, and mostly I see injunctions). But if true, it wouldn’t change my point that under this arbitration scheme, existing legal requirements are irrelevant (they would not provide an incentive for the FS to settle).

        The example you provided does not sound like an example of a ‘combo’ decision. If all the FS agreed to do is ‘include’ plaintiffs’ alternative, it is an example of agreeing to redo the process. To me, that is more typical. It may lead to a change in a decision, or may not.

  3. Sharon

    Re: “I am not as familiar with arbitration”

    – Arbitration requires submission of both parties to the ruling of the arbitrator.
    In the business world (i.e. credit cards, software, and etc.). Vendors/suppliers like to specify in the contract that the contracting/purchasing party must agree to the ruling of the arbitrator chosen by the vendor. Naturally, the contracting/purchasing party has a higher probability of coming out on the short end of the stick. Where the arbitrator must be agreed to by both parties, more than 50% of the battle is the fight to pick an arbitrator that you think will be more inclined to agree with you than with your opponent.

    – In mediation, either party can walk away from the table with no agreement having been reached.

    • Sharon, not clear what you’re suggesting? FS is mandated by law to fulfill ESA obligations, and it’s a very big job (specialist reports, biological assessments etc.), plus of course they’re the ones who hopefully actually know the Forest in detail. FWS role in the project context is much smaller, basically get consulted when appropriate, and concur (or not) as appropriate, occasionally suggest some changes. How much bigger role could FWS reasonably be expected to take on? Maybe I’m completely misunderstanding your point…

      • I like part about “hopefully” actually know the Forest. Most of them that did have retired and everyone else just seems like the are just coming and going. Hopefully the new ones are learning.

  4. Coincidentally, a link to Jim Chen’s short article “Arbitration as an article of constitutional faith” just showed in my inbox, it’s available here for free download:
    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2391075

    A couple of salient quotes that I think echo some concerns (e.g., due process) about the use of arbitration as a substitute for judicial review of FS projects:

    “Scarcely any legal question arises in the United States that is not resolved, sooner or later, through arbitration. If Alexis de Tocqueville could survey contemporary American legal culture, he would rub his eyes with amazement at the privatization of adjudication across a wide swath of issues previously committed tojudicial resolution. From trade disputes posing serious questions of economic diplomacy to consumer contracts adhering to cell phones and credit cards, mandatory arbitration has displaced conventional adjudication in a wide variety of modern legal settings.”

    “Most dramatically, perhaps, federal courts have allowed private parties to define minimum procedural standards emulating due process. It seems reasonably clear that arbitration is a creature of private freedom of contract… Despite the absence of state action, federal courts (including the Supreme Court) have gauged the fairness of arbitral agreements according to their adherence to an assuredly nonconstitutional due process protocol devised by the American Arbitration Association.“ (emphasis added)

    The point in Gil’s comment up above, that “Vendors/suppliers like to specify in the contract that the contracting/purchasing party must agree to the ruling of the arbitrator chosen by the vendor…the contracting/purchasing party has a higher probability of coming out on the short end of the stick” is accurate, I think. Another place where mandatory arbitration is common is in labor disputes, where it seems to be very popular with large corporations.

    I just stumbled on this article, “Arbitration as an alternative to judicial settlement” (also free) which has a lot of good information, and elaborates a bit on Gil’s point that arbitration is a different animal from mediation:
    http://www.mainelaw.maine.edu/academics/maine-law-review/pdf/vol24_2/vol24_me_l_rev_215.pdf

Leave a Reply

Your email address will not be published. Required fields are marked *