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Trust the Process: A Fiduciary Approach to Protecting Tribal Forests

Jordan L Hughes


  • Explores the possibility of using long-term fiduciary duties to stabilize and reinforce environmental protections in the wake of attempted rollbacks.
  • Argues that the government’s fiduciary duty to protect tribal forest resources may be inserted as a gap-filler for environmental review requirements.
Trust the Process: A Fiduciary Approach to Protecting Tribal Forests
luis saenz via Getty Images

I. Introduction

In July 2020, the Trump Council on Environmental Quality (CEQ) rolled back the foundational environmental requirement that the government consider the potential impacts of new projects on the natural world before approving them. But the Trump administration did not roll back generations-old promises to Indigenous people. Promises that in exchange for ceding their lands, the American government would forever protect, preserve, and manage reserved natural resources to their benefit. The past several years have seen tribes reasserting their rights under these promises, culminating recently in the landmark decision of McGirt v. Oklahoma, which opened with the now famous line: “On the far end of the Trail of Tears was a promise.” “Today,” wrote an impassioned Justice Gorsuch, “we hold the government to its word.”

The rule was immediately challenged in a number of ongoing lawsuits, and the new Biden administration has yet to take a stance on it. Thus, this aspect of environmental review has become one of many that may be subject to the tumultuous whims of changing administrations, leaving the public in the dark as to what will be required of them for long-term projects. That is, unless some outside source of duty or government obligation is employed to stabilize the field.

This paper explores the possibility of using long-term fiduciary duties, built on obligations derived from treaties and statutes that impose obligations upon every administration, to stabilize and reinforce environmental protections in the wake of attempted rollbacks. The federal government has a long-standing duty to protect and care for the tribal forests under its protection, and this duty remains just as relevant and vital today as it has ever been. Specifically, this paper argues that the government’s fiduciary duty to protect tribal forest resources may be inserted as a gap-filler for environmental review requirements. In other words, the reduced National Environmental Protection Act (NEPA) review requirements created by CEQ’s 2020 Final Rule should not be legally sufficient for any project likely to impact tribal forests. While this paper is limited to those obligations surrounding tribal forests, the proposed framework may be useful to other areas as well. Future work should consider the applicability of this framework to other protected natural resources.

II. Background

Indigenous people continue to be on the front lines of a desperate fight to protect America’s forests from increased devastation driven by climate change. America’s least metropolitan demographic, Indigenous groups across the country rely on forests and forestry resources for their economic and cultural survival. For the 22 percent of Indigenous people in the United States living on reservation or trust lands, the federal government is responsible for protecting these forests and managing them as a perpetual source of income. However, the critical importance of these forests to the tribes is often understated, and the government’s obligations to conserve and manage them are often neglected. Thus, protection of these natural resources has often been left to the tribes themselves, despite a lack of political and economic resources with which to do so.

A. Tribal Forests and Climate Change

Climate change is a looming threat to everyone’s way of life, regardless of geography or nationality. As observed by Andrew Harper, special advisor on Climate Action to the UN High Commissioner for Refugees, “its impacts are unevenly weighted against the world’s most vulnerable people.” Within the United States, the threats of climate change to health and livelihood are directly experienced by Indigenous communities. Tribal forests, which have particular importance to Indigenous livelihoods, health, and culture, and which are also particularly vulnerable to accelerated environmental degradation, have become a focal point of this experience.

i. Importance of Forestry Resources to Tribes

There are 305 forested reservations across the United States. Of the fifty-six million acres of reservation and trust land in the United States, eighteen million acres (nearly one-third) is forest land. There are additionally more than 4,000 miles of borders shared by reservation land and U.S. Forest Service lands, a reflection of the continued proximity of indigenous tribes to critical American forest resources.

Forest resources are critical to the economic vitality of reservations, particularly in the Pacific Northwest and Great Lakes Regions. The estimated total standing inventory of commercial timber on tribal lands is forty-three billion board feet, more than half of which is located in the Pacific Northwest. Each year, tribes produce enough timber to construct 37,600 homes. Tribes in the Great Lakes region produce most of the hardwood harvest, accounting for another 25 percent of the total timber volume. These sales support tribal governments and communities.

The importance of forest resources to Indigenous tribes transcends their direct economic productivity, and for some tribes touches on every part of reservation life. Indigenous people across the United States rely on a wide variety of fungi, plant, and animal species for food, medicine, ceremonies, and community building. In forested regions, these plant and animal species rely on the overall health of forest ecosystems for their survival. In recent years, new diseases have demonstrated the reliance of various aspects of tribal culture and vitality on forest health. Sudden Oak Death in California, for example, has killed off trees and shrubs used by tribes for foods, materials, and medicines, and at the same time has increased the vulnerability of reservation property to fire by weakening the forests’ natural fire resistance capacities. Similarly, the invasive emerald ash borer has wreaked havoc across the Midwestern and Eastern United States, greatly impacting the cultural practices of Indigenous people who use black ash. For example, the black ash is considered a “cultural keystone” species for the Wabanaki nations of Maine, and holds such a prominence in traditional stories and knowledge that its survival is essential to the survival of Wabanaki culture. Impacts on tribal forest resources, as shown through these examples, affect the economic and cultural vitality of tribes themselves.

ii. Vulnerability of Forestry Resources to Climate Change

Climate change should be a source of fear to anyone concerned with protecting forest resources. Raging fires across the West Coast in 2020 and 2021 displayed one of the most dramatic impacts of global warming. A region’s potential to experience major forest fires increases with fire weather conditions, as measured by a Fire Weather Index. Climate models have found that long-term changes in weather and precipitation have directly contributed to a doubling of autumn days in California with “extreme (95th percentile) fire weather.” A frightening trend, considering nearly two-thirds of the largest 1 percent of fires in California over a forty-year period occurred within the first two days of a locality experiencing extreme fire weather. Similar models over the past decade have found that climate change impacts on drought and warm weather conditions have increased the rate and severity of forest fires in Italy, Finland, Indonesia, and likely Australia. In addition to increased periods of extreme fire weather, more subtle impacts of climate change will continue to decrease the fire resistance capacity of forests. These include new insect infestations and diseases that promote future fires by increasing fuel loads within forests.

Climate change is exposing America’s forests’ vulnerabilities to more than just fire. Increased hurricanes and windstorms can be just as damaging as fires to the health of a forest. Even more critically, climate change is already responsible for the spread of new epidemics and blights among North American woodlands. The ability of trees to reproduce and create new growth is also endangered, adding to the stress on forests: “less resilient oak trees, reduced acorn production, increased fire threat and insects synergistically combine to make lower quality and quantity of acorns available for tribal and wildlife food consumption.” Scientists have stressed that although forests are adapted to certain levels of disturbance (e.g., California’s forests have some natural fire resistance, and pine forests rely on fires to create new growth), “all forests now face novel stresses in the form of climate change, air pollution, and invasive pests.” Tribal forests are thus critically vulnerable to climate change, as is the culture and survival of the Indigenous tribes who depend on forestry resources. Predicting and mitigating the effects of future climate changes is an issue of critical importance to the protection of tribal forests.

B. Federal Trust Obligations Regarding Tribal Forests

The federal trust obligation to Indigenous tribes is one of the oldest foundations of American law. It is an integral and inseparable part of the tribal reservation system itself.

i. Pre-1990 Foundations of the Tribal Forest Trust Obligations

The tribal trust doctrine evolved from murky origins blending property law, international law and foreign policy, and contract law. The basic concept of the trust doctrine is that the federal government protects the ability of tribes to live on their diminished territory, in consideration of the vast cessions of land made by the tribes. As President Nixon proclaimed in 1970, the relationship between Indigenous people and the federal government is “the result of solemn obligations, which have been entered into by the United States Government.” Although many federal agencies have failed to recognize their specific obligations to tribes, both Congress and the executive branch have made it clear that “the trust obligations run to all agencies as they carry out activities that affect on and off reservation tribal rights, customs, religion and traditions.” The tribal trust duty on federal agencies includes “protection and proper management of [tribal] resources, properties, and assets” including natural resources and then environment.

The National Commission on Indian Trust Administration and Reform, established in 2011 to evaluate the government’s management of tribal trust resources, explains that

The concept of a private trustee cannot support the full realm of responsibilities embodied in federal trusteeship to [indigenous] peoples. It can, however, provide appropriate guidance when the federal government is exercising management responsibilities for real property, and natural resources that it holds in trust for tribes. It should also provide the legal standard for determining liability when the federal government mismanages tribal trust property or natural resources.

The relationship between tribal-trust obligations and private trust duties is a common law creation stemming from the Supreme Court’s 1942 decision in Seminole Nation v. United States. In a footnote, the Court analyzed federal obligations to the Nation in light of a well-known corporate fiduciary case, Meinhardt v. Salmon, repeating the language that “a trustee is held to something stricter than the morals of the market place.” The Court continued that the government’s relationship with tribes is “something more than a mere contracting party” and that it has charged itself through treaty promises with “moral obligations of the highest responsibility and trust . . . which should be judged by the most exacting fiduciary standards.” Relying on the Supreme Court’s reasoning in Seminole Nation, courts have directed federal agents to conform to trust obligations in several instances during the twentieth century.

In the 1980s, the Supreme Court backed away from applying the full extent of trust law to the tribal-trust doctrine. In United States v. Mitchell (“Mitchell I”), the Court held that the General Allotment Act created only a “limited trust relationship” between the government and Quinault tribe, and a duty to manage timber resources on their land was not included within the government’s obligations. In 1983 the case returned to the Supreme Court (“Mitchell II”), only this time the Quinault argued that it was a series of federal statutes and regulations targeting timber and forest management, rather than the General Allotment Act, that created a fiduciary duty over timber resources on allotted land. The Court agreed. Read together, the Mitchell line of cases suggests that duty should be construed from a strictly statutory basis. “Mere common law notions of a trust responsibility, even where traditionally one would exist, are not sufficient to open the government to a claim.” The Court has since explained that statutes need not explicitly state the formation of a fiduciary duty, so long as they give rise to the “fair implication” that one exists.

ii. The National Indian Forest Resources Management Act of 1990

Senator John McCain (R-Ariz.) in 1989 introduced the bipartisan National Indian Forest Resources Management Act (NIFRMA), signed into law by President Bush in 1990. The first part of the Act sets out Congress’s findings, including that “the forest lands of Indians are among their most valuable resources and Indian forest lands . . . provide economic benefits, including income employment, and subsistence, and provide natural benefits, including ecological, cultural, and esthetic values,” that “the United States has a trust responsibility toward Indian forest lands,” and that “existing Federal laws do not sufficiently assure the adequate and necessary trust management of Indian forest lands.”

Under NIFRMA, the federal government must manage tribal forest lands “in a perpetually productive state in accordance with the principles of sustained yield.” The government must also regulate the forest lands “so as to make possible, on a sustained yield basis, continuous productivity and a perpetual forest business.” NIFRMA also declares government objectives including the retention of forest land in “its natural state” when that is prioritized by the tribe, the protection of the benefits that forest land has on “regulating water run-off and minimizing soil erosion,” and the maintenance and improvement of “timber productivity, grazing, wildlife, fisheries, recreation, aesthetic, cultural and other traditional values.” These objectives and directives apply to all forest land management activities, which NIFRMA defines to include protection against wildfire, hazard reduction, and protection against insects and disease. The Bureau of Indian Affairs (BIA) promulgates rules and regulations under its NIFRMA authority at 25 C.F.R. Part 163, General Forestry Regulations. BIA considers itself bound by Executive Order 13563 to base all of its regulations on the “best available science.”

The existence of the federal government’s trust obligations for the management of tribal forestry resources is thus laid out in statute. NIFRMA extends the result of Mitchell II to all tribal forests, but does not discuss or disrupt the Court’s prior interpretations of what standard the trust is held to. Presumably then, once a tribal trust resource has been defined (as NIFRMA has done for tribal forests), federal obligations to manage and protect that resource are still held to the “most exacting fiduciary standard” as the Seminole Nation Court declared.

C. CEQ’s 2020 NEPA Revisions

NEPA requires environmental review of major federal actions that are likely to affect the environment. It is a procedural statute, meant to ensure that environmental considerations are duly accounted for in federal actions. NEPA provides that:

[A]ll agencies of the Federal Government shall . . . (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—

  1. the environmental impact of the proposed action,
  2. any adverse environmental effects which cannot be avoided should the proposal be implemented,
  3. alternatives to the proposed action,
  4. the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
  5. any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

42 U.S.C. § 4332. The environmental impact statements must incorporate, to the extent possible, any environmental analyses and studies required by other environmental laws and executive orders.

On July 16, 2020, CEQ published its final rule, titled Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act (“Final Rule”). The Final Rule was the first major change to the NEPA regulations in over forty years, and was described as an effort by the Trump administration to streamline permitting processes for major infrastructure projects and reduce environmental roadblocks.

Most notably, CEQ attempted to eliminate analysis of a project’s cumulative and indirect effects from the requirements of NEPA review, ultimately eviscerating consideration of climate change from environmental review. In the Final Rule, in response to widespread public criticism, CEQ argued that climate change may still be considered in some instances. In the rule’s preamble, CEQ acknowledges: “analysis of the impacts on climate change will depend on the specific circumstances of the proposed action . . . [U]nder the final rule, agencies will consider predictable trends in the area in the baseline analysis of the affected environment.” However, there is no doubt that most of the requirements for environmental review that would lead to consideration of an action’s impacts on and vulnerability to climate change were eliminated. The Final Rule repeals a specific requirement to consider cumulative effects unless such effects are reasonably foreseeable. “Reasonably foreseeable” itself is redefined in the rule, importing a tort law standard of reasonability that ignores agency expertise and access to scientific findings. Similarly, the Final Rule allows for incorporation of climate trends into the discussion of the affected environment, but would exclude the discussion of “speculative” conditions. These changes all create a Final Rule that encourages agencies to view actions in greater isolation, with less caution, and with a greatly reduced reliance on scientific findings as to the interconnectedness and cascading results of environmental impacts. If this Final Rule is all that is required of agencies for environmental review, then future reviews will leave agencies in the dark as to most actions’ contribution toward, and vulnerability to the effects of, global climate change.

III. Analysis

To summarize the background, two things are true. On the one hand, CEQ under President Trump endeavored to remove several procedural safeguards of the natural environment, including consideration of cumulative impacts and ultimately of climate change, from the NEPA analysis that federal agencies must conduct for major federal actions. On the other, federal agencies are bound by NIFRMA to protect tribal forestry resources, which are particularly vulnerable to climate change and long-term cumulative impacts such as general environmental degradation. This analysis proposes that tribal trust obligations under NIFRMA pick up where the “new NEPA” trails off.

A. NEPA Rollbacks Cannot Eliminate Other Governmental Obligations

The argument that the tribal trust doctrine might have some impact on NEPA review stems from a basic premise: NEPA provides the minimum—not the exclusive—standard for the stringency required when an agency conducts environmental review. NEPA is primarily a procedural statute, with more of a focus on how to make decisions than what they ought to be. As the Supreme Court famously noted in Robertson v. Methow Valley Citizens Council, “NEPA merely prohibits uninformed—rather than unwise—agency action.” The vast majority of CEQ’s 2020 revisions to NEPA, including its elimination of requirements for cumulative impacts analysis, are best conceptualized as revisions to what it means for an agency to be “uninformed.” NEPA sets bottom limits for acceptable environmental review, but it sets no upper limits. Because of this, NEPA review allows for the incorporation of higher and more stringent standards for “informed” decision making from other statutes.

The Forest Service procedure for establishing forest management plans offers a good example of this relationship. The Forest Service is responsible for developing and maintaining resource management plans for units of the National Forest System, as directed by the National Forest Management Act (NFMA). When developing these plans, NFMA requires the Forest Service to comply with NEPA, which includes the duty to prepare an environmental impact statement (EIS) for each plan. NEPA in turn requires that the EIS incorporate any additional environmental analysis or studies required in the context. The Forest Service requires that forest plans be developed based on “the best available scientific information.” Putting the two schemes together then, when the Forest Service prepares an EIS under NEPA, it must be based on the best available science as required by the Forest Service’s regulations under NFMA. As one court explains:

Individual project proposals must comply with NFMA's statutory requirements, NFMA's implementing regulations, and the forest plan or plans encompassing the project site. The Forest Service uses NEPA's EIS process to determine whether a proposed project will satisfy these requirements. In an EIS, the acting federal agency must describe a reasonable range of alternatives for action, the predicted environmental consequences of each, and the reasons underlying the agency's selection of one action over the others. Under the applicable NFMA regulations, the Forest Service's assessment must be based on the "best available science."

Conservation Cong. v. United States Forest Serv. (emphasis added). So while NEPA itself has no “best science available” requirement, courts have found such a requirement to exist in situations where NEPA is supplemented by additional statutes, such as NFMA, which contain that mandate.

The “best science available” requirement illustrates NEPA’s function as a minimum procedure statute, which is always capable of being supplemented with further requirements so long as they are not contradictory to NEPA’s purpose. It follows that whatever is required of federal agencies to fulfill trust obligations may be incorporated as a requirement of NEPA review. Part B makes the argument that for projects likely to affect tribal forests, these requirements include a consideration of the project’s cumulative impacts and ultimate effects on climate change.

B. Trust Obligations Require Climate Change and Cumulative Impacts Analysis Regardless of the 2020 Final Rule

The federal government’s fiduciary duty regarding tribal forest resources requires that it analyze any project likely to impact tribal forests with a prudent eye to the future, and the CEQ regulations do not eliminate this obligation.

i. Federal Agencies Have an Affirmative Duty to Preserve Tribal Forest Resources in Perpetuity

There is no ambiguity within the text of NIFRMA as to how long the government must protect and manage tribal forest resources. The forests must remain productive, their benefits sustained and their resources protected, perpetually. Federal agencies bound by NIFRMA therefore do not have the option to ignore the future environmental consequences of any given action.

That resources must be managed in perpetuity stems from the very heart of the tribal trust doctrine itself. The doctrine arises from the agreements that Indigenous nations made with the United States of America—peaceful land cessations, in exchange for plots where the Indigenous nation could survive as a sovereign under the protection of the United States forever. Guarantees of future vitality and survival are the incentives that animated the original cessations, and they continue to be central concerns for both parties today as observed by Congress in NIFRMA.

The NIFRMA trust applies broadly to any activity that might affect forest land. This likely includes projects that have proximity to tribal forests but don’t actually enter the entrusted land themselves. In addition to protecting the perpetually sustained yield of forests for lumber, federal agencies are responsible for managing the forests’ components (including soil, wildlife, and esthetic value) and for protecting the forests from wildfires, insects, and diseases. All of these duties are governed by the high standard set in Seminole Nation: these are “moral obligations of the highest responsibility and trust . . . which should be judged by the most exacting fiduciary standards.” The implication is that these duties are paramount—unless Congress says otherwise, agencies should presume that their obligation to perpetually manage and protect these resources takes priority over any potentially competing interests.

ii. Federal Agencies Must Rely on the “Best Available Science” to Preserve Tribal Forest Resources

Like the Forest Service, the BIA has interpreted its duty to require a consideration of “the best available science” for all of its actions, including actions related to the management of tribal forests. Like the Forest Service, BIA is bound by its own interpretation of its standards, and thus cannot escape that requirement for the projects it must consider.

The requirement to consider the best available science probably extends to any NEPA assessment that involves tribal forests, regardless of the agency conducting the assessment. This is because NIFRMA, in detailing the requirements for forest assessments to uphold the nation’s trust obligations, declares that assessments must consider and discuss anything necessary to bring forests and forest management to “a state-of-the-art condition.” These assessments are carried out by an appointed Indian Forest Management Assessment Team (IFMAT). And these teams have defined “state-of-the-art” forestry to require “the best available technology and current science.” While the state-of-the-art standard is only provided for the assessments, the statute makes clear that that standard is necessary to uphold the nation’s trust obligation for all tribal forests. The entire federal government is the fiduciary for forest resources. The logical extension of this requirement is that any federal environmental assessment considering effects on tribal forests must consider whether the forest will be left in a state-of-the-art condition based on the best available technology and current science.

One could arrive at the same result without considering the “state-of-the-art” language from the statute at all. A fiduciary is bound by a duty of care to protect and manage assets, and when the “most exacting fiduciary standards” of Seminole Nation are applied to assessments of impacts on forests the baseline for how informed a fiduciary must be has to be high. NEPA review for projects impacting tribal forest resources must accordingly rely on the most accurate and reliable science available in order to ensure that the federal trust obligation is upheld.

iii. The Best Available Science Includes a Project’s Impact On and Susceptibility To Climate Change and Cumulative Environmental Degradation

As discussed above, tribal forests are particularly vulnerable to the downstream cumulative impacts that projects might have on a given environment. Future increases in wildfires, spreads of new and damaging insects, and introductions of new diseases pose a looming existential threat to tribal forests. These forests are also vulnerable to the impacts of climate change, including increased storm severity and accelerated processes of desertification.

As a fiduciary charged with protecting, managing, and ensuring the productive capacity of tribal forests in perpetuity, the federal government is obliged to consider the particular vulnerabilities of tribal forests when taking actions that may affect them. This duty may arise from an obligation to consider the best available science, which includes an understanding of how interconnected immediate projects may be with the overall health and future of an ecosystem. Or it may be grounded in the general fiduciary duty of prudence that exists in any trust relationship. Either way, the threat to the tribal assets is real and beyond debate. If the tools exist to consider a project’s cumulative impacts and effect on climate change, federal agencies must consider them for projects associated with tribal forests.

To analyze the cumulative impacts of a project, there are several tools already available and in use in urban environments from which the agencies could pull. Indexes are helpful for measuring and indicating the interrelatedness of various components within an environment over time and are used by agencies and nonprofits for city planning. For example, the Resilience Capacity Index is used to assess the capacity of U.S. cities to weather the effects of stressors ranging from economic decline to earthquakes and floods, and the Community Needs Index has revealed correlations across U.S. zip codes between social, cultural, and economic barriers to health care and the hospitalization rates for diseases including asthma, pneumonia, and congestive heart failure. Maps are a similar tool that reveal correlations between various factors geographically, adding a spatial component to the analysis. The U.S. Environmental Protection Agency (EPA) uses geographic information systems (GIS) mapping to assess environmental justice indicators for zip codes across the country, and has made its maps available to lay over other indicators (revealing, for example, spatial correlations between localized vehicle emissions and hospitalization rates for asthma). The California EPA, New Jersey Department of Environmental Protection, and South Carolina Community Assessment Network represent a few of the many agencies and nonprofits already using these tools to consider the cumulative impact certain indicators have on other aspects of their environment.

Similarly, despite decades of agency protestation that accounting for a project’s impact on climate change is infeasible, scholars have noted that “agencies already possess many of the tools needed to assess such impacts, and indeed, some agencies already use these tools.” For example, a number of environmental analyses conducted by the Bureau of Land Management (BLM) in 2017 and 2018 considered the reasonably foreseeable indirect effects of emissions from coal mine expansion and increased natural gas drilling. BLM made reasonable assumptions based on accumulated scientific and national datapoints to compensate for the lack of project-specific information, a technique that could be easily employed by all agencies. Additionally, Hein and Jacewicz note that agencies can assess the social costs of carbon and emissions, that several courts have indicated that agencies must do this, and that “analysis that omits a thorough accounting of climate damages is precisely the kind of inaccurate economic information that may defeat the purpose of NEPA analysis.”

iv. The 2020 Final Rule Creates a Gap That Tribal Trust Obligations May Fill

CEQ explicitly indicated in the Final Rule that its revisions should have no impact on other agency responsibilities. CEQ also walked back its proposed revisions, for example by inserting the word “generally” into the sentence “effects should generally not be considered if they are remote in time, geographically remote, or the product of a lengthy causal chain,” in response to public comments and to increase the rule’s likelihood of surviving judicial review (emphasis added). “Generally” suggests that exceptions may exist, and CEQ’s direction that the nothing in the regulations should be construed to limit other legal responsibilities offers a solution to fill the gap. When other legal responsibilities demand that agencies exercise caution and consider long-term, geographically remote, and indirect effects of an action, under the Final Rule they must still do so.

The intent of CEQ’s revision of NEPA was to eliminate a need for agencies to consider long-range and cumulative impacts that could potentially be damning to lucrative but environmentally damaging projects, particularly large infrastructure projects and fossil fuel development on federal land. Despite this, the explicit direction that NEPA review does not displace other legal responsibilities ensures that room remains for additional review to supplement the procedures. If required of an agency by outside law, room remains for indirect and cumulative effects analysis within NEPA even if the 2020 Final Rule remains in place. The legal and environmental context of tribal forests requires climate change and cumulative effects analysis in a way that supplements, rather than conflicts with, the new NEPA revisions.

IV. Conclusion

For advocates of environmental and social justice, and for anyone concerned about our ability to mitigate our ongoing contributions to global environmental degradation, it is easy to despair at environmental regulatory rollbacks by any administration. However, NEPA has never been the sole source of federal accountability.

The tribal trust doctrine with relation to forest resources is one of many examples where a higher standard for review exists that the “new” NEPA must still adopt. The Court’s ruling in Mitchell II, codified and expanded by Congress in NIFRMA, affirms the existence of a federal fiduciary duty for the management and preservation of all tribal forest resources––a duty that extends to the entire federal government, and is held to the “most exacting” standard for responsibility. This obligation requires any NEPA analysis for a project likely to impact tribal forestry resources to consider the project’s impacts on the resources’ known vulnerabilities, which include the effects of fire, insects, and disease that are foreseeably exacerbated by the effects of climate change. The tools and technical ability to account for these kinds of impacts are available already to all federal agencies. To put it simply, the significantly reduced environmental review that CEQ intended should not be sufficient for any project likely to impact tribal forests.

This paper is limited to analysis of the government’s specific obligations with respect to tribal forest resources. The analysis proposed here to supplement the new NEPA review may work with a range of other obligations, depending on the triggering project. Future research should consider whether a similar duty could be found to protect and manage tribal air, water, and mineral resources. Outside of tribal resources, future research may consider whether the Endangered Species Act or other similar statutes could serve as a general vehicle to require that NEPA review consider the “best available scientific information.”