Daines seeks end to fringe litigation with pilot arbitration program for Forest Service

From left to right, Rep. Greg Gianforte, Sen. Steve Daines, Agriculture Secretary Sonny Perdue and Interior Secretary Ryan Zinke discuss forest management and reforms during a field tour last year. (Missoula Current file photo)

The Republican majority on the Senate Committee on Energy and Natural Resources narrowly passed a bill by Sen. Steve Daines Tuesday that seeks to end what the Montana lawmaker describes as an endless barrage of lawsuits filed by fringe environmental groups against timber projects that enjoy collaborative support.

Daines’ bill, which cleared the committee on a bipartisan 13-10 vote, would establish a five-year pilot program allowing arbitration to occur on two litigated Forest Service projects each year. The two projects must be located in Montana, Idaho or Wyoming.

“Litigation from a few fringe groups is having a devastating impact on Montana,” Daines told the committee. “It’s a constant, unending barrage of lawsuits, now spanning more than a decade, and it’s hurting our forests and crushing our wood products communities. We have, in essence, replaced loggers with lawyers.”

Daines said two or three groups in Montana sue on a regular basis against projects that are otherwise driven by collaboration and enjoy widespread community backing. While he didn’t specifically name the groups, he blamed them for suppressing the will of the majority and their good-faith efforts to see a project through.

Currently, Daines said, 28 timber sales are under litigation in Montana, and 21 of those are now enjoined. The results have tied up 21 million board feet of timber, he said, leaving thousands of acres of forest in need of fuel reduction.

“A single fringe group is responsible for the vast majority of these lawsuits,” Daines said. “My bill allows the Forest Service to resolve these disputes over collaboratively driven projects through a qualified arbitrator rather than in the courtroom.”

While Daines promoted his bill as being fair to all sides, and while it establishes careful benchmarks for what can and cannot be arbitrated, several lawmakers questioned the measure’s fairness and long-term impacts.

“I know it’s a pilot, but it institutes a binding arbitration process and would essentially close the courtroom door to any American who wants to challenge the legality of government management decisions on public lands,” said Sen. Debbie Stabenow, D-Michigan. “It’s a serious, important policy with ramifications.”

Daines said arbitration would bring about faster resolution, where litigation can take years to resolve. The Forest Service has signed on as a supporter, and the effort would be tested on a limited basis, with just two litigated projects across Montana, Idaho and Wyoming going to arbitration.

The rest would remain in the courts, Daines said.

“The Forest Service must follow all environmental laws, and the due process rights of objectors is satisfied, because they would have access to a credible and fair alternative dispute resolution process,” said Daines. “If this doesn’t work, we’ll go and find a new plan. But I hope we can at least try something here, because doing nothing right now is causing our forests to be unmanaged.”

Sen. Maria Cantwell, D-Washington, said Congress made progress on the recently passed fire bill, which ended fire borrowing and gave preference to projects that reduce fuels, while also helping timber mills secure longer contracts.

While arbitration could help stop repetitive legal disputes, Cantwell added, Daines’ proposal goes too far.

“It’s not that arbitration couldn’t play a vital role, but I think you’re going down the road where it’s the only role and limiting the courts in that process,” Cantwell said. “Sometimes there are substantive and even major disagreements on these lands.”

The committee’s chief counsel, Sam Fowler, questioned the measure’s legality, saying arbitration would be mandatory under Daines’ pilot program. The bill would give environmental groups and others challenging a Forest Service decision “no say in the matter.”

Many of the projects under litigation, Fowler said, face fundamental legal issues, from their compliance with Healthy Forests to the Endangered Species Act.

“I appreciate Sen. Daines’ efforts to try and limit the number of these projects that would be subject to arbitration, but that leads to greater unfairness,” Fowler said. “The Forest Service decides which projects it wants to protect from judicial review, and the litigants have no say in the matter.”

The measure found support from Sen. Mike Barrasso, R-Wyoming, and Sen. James Risch, R-Idaho, the bill’s cosponsor who took issue with Fowler’s interpretation of U.S. arbitration rules and the impact the measure could have on legitimate cases.

“With all due respect, I wish you would sit on one of those collaborative boards one time and see the frustration of this group of people who come in from all sides and reach an agreement, and then have a fringe group take it through the courts, and they’re incentivized to do that,” Risch said. “We’re trying in very limited fashion to get these matters resolved after they’ve been through a system that has the deepest due process you’ve ever seen with these people around the table.”