Environmental – Page 2

USDA Proposes Rescinding Roadless Rule; What Tribes Told the Agency Last Fall, and What a Comment Can Still Do About It By the Sept. 21 Deadline

August 29, 2026August 29, 2026Wenona Singel

On August 20, 2026, USDA published a proposed rule to rescind the 2001 Roadless Area Conservation Rule, which has restricted road construction, road reconstruction, and timber harvesting across approximately 44.7 million acres of National Forest System lands for the past quarter century. The proposal would replace the existing rule’s nationwide layer of protection and return more decisions about roadless areas to individual forest plans and project-level review.

Alongside the proposed rule, USDA released a 333-page Draft Environmental Impact Statement, a cost-benefit and regulatory-flexibility analysis, and a Tribal Summary Impact Statement. (Links to these documents are below.)

Comments on the proposed rule are due September 21, 2026. The docket is FS-2025-0001.

This isn’t the first time Tribes have weighed in. USDA’s August 2025 Notice of Intent opened a scoping comment period that drew more than 220,000 comments, with about 99% opposed to the rescission. Based on the ILPC’s analysis, the comments included 42 written submissions from 38 distinct Tribal governments and organizations. Scoping comments, however, only shape what an agency studies, and a court asked to review the eventual final rule will look at the record as it stands when the agency acts. As a result, the current 30-day comment period is fundamentally different from the one in 2025, since it’s the last opportunity to place Tribe-specific evidence, legal argument, and disagreement with USDA’s reasoning into the administrative record before the rule is finalized.

The ILPC is sharing four documents to help Tribes and their staff and counsel use that opportunity

a. The first document is a list of tribal comments submitted during the fall 2025 window and found by the ILPC in response to the Notice of Intent. The document includes links to each tribe or tribal organization’s comments.

b. The second document, The Tribal Administrative Record on the Roadless Rule, is an ILPC independent empirical review of the 38 distinct Tribal comments filed in 2025. Rather than starting from USDA’s own categories, the ILPC coded the submissions and measured how often fourteen recurring themes appear, from near-universal concerns about ecological resources (94.7%), and cultural and religious interests (94.7%), to concerns raised by roughly half of commenters about consultation adequacy and enhanced Tribal governmental authority beyond ordinary consultation. It then compares that record against USDA’s 2026 Draft EIS line by line. Our finding: USDA’s Draft EIS rhetorically recognizes Tribal sovereignty, treaty rights, and trust obligations. It also concludes that full rescission, the alternative it proposes, would create the greatest potential for adverse effects on Tribal rights and interests of any alternative it studied. The gap this record exposes isn’t whether USDA heard Tribes. It’s what the agency did about what it heard.

b. The third document, Strategic Considerations for Tribal Nations in the 2001 Roadless Rule Rescission Comment Period, moves to strategy. It walks through the administrative law tools a comment filed now can use, including arbitrary and capricious review, record preservation and issue exhaustion doctrine, NEPA’s alternatives requirement, NHPA Section 106, and treaty rights claims where they apply, and explains why the strongest comments this round will do more than restate 2025 positions. The most impactful comments submitted now will name an impact, identify USDA’s specific response in the documents it published in the docket on August 20, and explain concretely why that response does or doesn’t hold up. The memo also addresses the administration’s simultaneous move to weaken the protections of NHPA Section 106 through a proposed rule that is expected to be published soon. If NHPA 106 protections are administratively weakened, Tribes will face a multiplication of interventions as decision-making is returned to the land management planning process at the individual national forest level, on top of diminished leverage under a weakened 106 regime.

The strategic considerations memo also flags a separate problem ILPC ran into directly. USDA’s Tribal Summary Impact Statement rests heavily on 29 completed (and 34 scheduled) government-to-government consultations (out of 64 Tribal requests for consultation), but the underlying consultation records aren’t in the public docket, and ILPC couldn’t locate any posted log of them. After an August 28 letter to the Forest Service’s Office of Tribal Relations went unanswered, ILPC filed a formal FOIA request the same day. Because of FOIA’s ordinary processing timeline, that request may not be resolved before the comment period closes. As it stands, Tribes and the public are being asked to evaluate USDA’s account of what it heard in consultation without being able to see the records that account is based on. That timing problem is itself worth putting directly into a comment.

Below is a full set of links to the docket, including the proposed rule, the complete Draft EIS, the Tribal Summary Impact Statement, the economic analysis, and the ILPC-generated documents referred to above.

Additional Resources

Link to the Docket for the 2001 Roadless Rule Rescission

USDA proposed rule
The Draft EIS (Vol. I – III) (Vol. II includes maps of all roadless rule affected areas organized by state; Vol. III includes copies of all Tribal comments submitted in response to the NOI in fall 2025)
The Tribal Summary Impact Statement for Proposed Rule to Rescind the 2001 Roadless Area Conservation Rule
The Economic Analysis for the 2004 Roadless Rule Rescission

List of Tribes with Comments Submitted Fall 2025 (with links) UPDATE: pdfs of all Tribal comments are included in Vol. III of the EIS.

ILPC Memo: The Tribal Administrative Record on the Roadless Rule

ILPC Graphic: Chart of Tribal Comments Grouped by Theme

ILPC Memo: Strategic Considerations for Tribal Nations in the 2001 Roadless Rule Rescission Comment Period

ILPC Email to FS OTR for Consultation Records

ILPC FOIA Request to FS OTR for Consultation Records

NCAI Resolution Opposing the Legislative Repeal of the 2001 Roadless Area Conservation Rule and Supporting its Retention

Roadless Rule Tribal Hub : “The Tribal Hub is an informational platform created to support Tribal leaders, staff, and community members in responding to the proposed rescission of the 2001 Roadless Rule. Our goal is to ensure that Tribes have timely access to resources, information, and tools to protect sovereignty, treaty and reserved rights, and cultural lifeways throughout this federal rulemaking process.”

Data Centers in Indian Country

August 20, 2026August 20, 2026Wenona Singel

As some Tribes reject hyperscale data centers in Indian Country, others are embracing data center development. Others are imposing moratoria on data centers to allow for further studies and policy development. Below is a snapshot of what Tribes are doing. It illustrates the diversity of Tribes in the US, and it shows Tribes acting as governments, regulators, landowners, utility operators, infrastructure owners, investors, economic development actors, and political communities as they decide what tech development should look like on their lands.

Cherokee Nation of Oklahoma: Released a Data Center Task Force report on August 5, 2026 and is now banning hyperscale data centers on tribally owned and trust lands.

Seminole Nation of Oklahoma: On March 7, 2026, the Tribal Council unanimously voted for a moratorium on generative-AI and hyperscale data center development within its jurisdiction. The resolution also bars “any inquiries, discussions and/or developments concerning any entity seeking to develop a data center of any size within the Seminole Nation during the moratorium period.”

Sault Ste. Marie Tribe of Chippewa Indians: Supports a moratorium. The Tribe adopted a resolution on May 19, 2026 supporting the state of Michigan establishing a temporary moratorium on large-scale data centers and cryptocurrency mining until a Tribal consultation process is established, including comprehensive environmental and cultural impact assessments on any legislation involving large-scale data centers and cryptocurrency mining.

Muscogee (Creek) Nation: Rejected. In November 2025, the National Council rejected a measure that would have developed a data center at Looped Square Ranch, where land is being used for Tribal food sovereignty.

Hoopa Valley Tribe: Supports, under Tribal ownership. Hoopa opened a new data center on July 17, 2026, but it’s not a hyperscale data center. It’s a tribally-owned facility serving as the operational hub of Hoopa’s fiber-to-home broadband network and Acorn Connected, its Tribal internet service provider.

Forest County Potawatomi Community: Yes, and has been doing it for years. Its enterprise Data Holdings operates a commercial data center in Milwaukee on trust land and is 100% Tribally owned. It opened in 2013 as a $33 million wholesale data center and now provides colocation/private cloud services and hosts the Milwaukee Internet Exchange.

Navajo Nation: Yes. Navajo Tribal Utility Authority operates a data center in Shiprock on the Navajo Nation offering colocation, virtualization and high-speed optical backhaul to off-reservation points-of-presence in Albuquerque and Phoenix. NTUA is a Navajo Nation enterprise, and the facility serves both Navajo and outside government and business customers.

Colusa Indian Community: Actively pursuing AI infrastructure. The Community’s Colusa Indian Energy announced a partnership in March 2026 with Strata Expanse to develop an AI and energy infrastructure campus on the land of the Cachil Dehe Band of Wintun Indians of the Colusa Indian Community in Northern California. Plans include expanding on-site energy generation capacity to more than 100 MW over the next 18 months.

Osage Nation: Debating a data center approved in February 2026 by the City of Sand Springs on the Osage reservation. The proposed data center would be operated by Google, and construction is planned to begin in 2027. The developers are seeking support from the Osage Minerals Council, which controls the nation’s 1.47 million acre oil and gas subsurface.

Additional Resources

Tribal Nations and Data Centers: Emerging Issues and Resources, USET

AI Data Centers and Tribes: Emerging Federal and Policy State Trends and Tribal Governance Options, Tana Fitzpatrick, Director, Native Nations Center for Tribal Policy Research

Honor the Earth Data Center Tracker (interactive crowd-sourced map)

Indigenous Peoples Push Back as Data Centers Expand Across North America, John Ahni Schertow in Intercontinental Cry Magazine

The Cloud is Drying our Rivers: Water Usage of AI Data Centers, Charlotte Jennings, EthicalGeo

Honor the Earth DataCenterTracker; Earthstar Geographics; U.S. Census Bureau

Inter-Tribal Council of Michigan Reports Loss of More than $23 Million in EPA Funding for Tribal Programs

August 18, 2026August 15, 2026Wenona Singel

The Inter-Tribal Council of Michigan (ITCMI) released its FY2025 Annual Report on August 10, 2026, and it reported that the federal government revoked more than $23 million in EPA grant funding, creating “substantial obstacles” for Tribal communities and programs across Michigan.

$20 million of the lost funding was part of an EPA Community Change Grant awarded to ITCMI in partnership with the Grand Traverse Band of Ottawa and Chippewa Indians for “Making Michigan Tribal Homes & Buildings Efficient, Healthy, and Resilient.” The project planned to work with six Michigan Tribes to retrofit and electrify at least 300 Tribal homes and convert twelve Tribal government buildings into community resilience hubs. Funding would also have supported roof and electrical repairs, insulation and ventilation improvements, electric appliances, indoor-air-quality equipment, and Tribal staff responsible for overseeing the work.

Another $3 million of the lost funding was part of an EPA Community Change Grant awarded to ITCMI in partnership with the Bay Mills Indian Community for “Michigan Tribal and State Manoomin/Mnoomin/Mnomen Stewardship.” Developed with Michigan’s twelve federally recognized Tribes, ITCMI, the State of Michigan EGLE, and the University of Michigan Water Center, the project would have supported implementation of the Tribal-State Manoomin Stewardship Plan. It specifically contemplated participation by Tribal elders, traditional ricers, and knowledge keepers in the Michigan Wild Rice Initiative and supported their participation in stewardship and decision-making.

Together, these two awards account for $23 million, although ITCMI’s reference to more than $23 million in its Annual Report indicates that its total revoked EPA funding may extend beyond these two grants.

ITCMI Lawsuit Update

ITCMI is now one of the plaintiffs challenging EPA’s termination of the Environmental and Climate Justice Block Grant program in Appalachian Voices v. EPA. In court filings, ITCMI warned that the experience could deepen distrust of the federal government and make Tribes more hesitant to partner with ITCMI in future federally funded projects.

The litigation remains active. A federal district court dismissed the case in August 2025, but on July 21, 2026, the D.C. Circuit vacated that dismissal and returned the case to the district court. The case therefore continues while Michigan Tribal communities remain without funding that had been awarded for housing and manoomin stewardship.

Appalachian Voices v. EPA

Complaint

Plaintiffs’ Memo in Support of Motion for Prelim Injunction

District Court Opinion

Appeal

Appellants’ Opening Brief

Decision of the Court of Appeals for the D.C. Circuit

ACHP Moving to Dramatically Weaken Section 106 Tribal Consultation

August 14, 2026August 13, 2026Wenona Singel

The Advisory Council on Historic Preservation voted 16–5 on July 24 to advance a Notice of Proposed Rulemaking that would substantially rewrite 36 C.F.R. Part 800, which implements Section 106 of the National Historic Preservation Act. Section 106 is a cornerstone provision of NHPA that gives Tribes a formal role in ensuring that federal agencies consider impacts to sacred places, ancestral landscapes, and other historic properties of religious and cultural significance before making decisions that may affect them.

The proposal isn’t yet published in the Federal Register since it’s under OMB/OIRA review, so the formal comment period hasn’t opened. A 30-day comment period is anticipated once the NPRM is published. But a draft redline is available on the War Room page of Cultural Heritage Partners, a law firm that specializes in historic and cultural heritage protection.

The National Association of Tribal Historic Preservation Officers has identified the following areas of preliminary concern on its page dedicated to the planned revisions to Section 106:

Narrowing what qualifies as an undertaking. The proposal would exclude certain state, Tribal, and local actions carried out under delegated federal authority. Other provisions would provide additional grounds for agencies to conclude that federal funding, approval, assistance, or involvement does not trigger Section 106 review. When an activity is treated as outside the definition of an undertaking, the agency generally has no obligation under Section 106 to identify historic properties, consult with affected Tribal Nations, assess effects, or consider ways to avoid or address harm.

Excluding certain natural and cultural places from the definition of historic property. The proposal would generally require a place to be geographically compact and connected to tangible human improvements or specific human activities. It further states that “noncompact, unimproved natural features such as mountains, valleys, bodies of water, or landscapes, including ethnographic landscapes, do not qualify as property” for Section 106 purposes. This could exclude places whose significance arises from continuing religious and cultural practice, subsistence, oral tradition, place names, cultural responsibility, ceremony, and enduring relationships among Tribal people, ancestors, land, water, plants, and animals.

Not every Tribal cultural place can be reduced to a tightly bounded parcel or identified through buildings, archaeological deposits, or other visible physical remains. Some places are understood through relationships among multiple locations, waterways, mountains, gathering areas, travel routes, viewsheds, and ceremonial settings. The absence of tangible human improvements does not make those places less sacred, less culturally significant, or less deserving of consideration.

Reducing Tribal and THPO participation. The draft removes provisions that give Tribes a reasonable opportunity to identify concerns, advise agencies on the identification and evaluation of historic properties, explain how an undertaking may affect those properties, and participate in resolving adverse effects. It also reduces THPO involvement at several stages, shifts more findings and decisions to the agency official, and moves the role of consulting parties toward commenting on an agency-prepared report.

Consultation is not meaningful when a Tribe is presented with a substantially completed agency analysis and given only a limited opportunity to respond. It must begin early enough for Tribal knowledge, concerns, and recommendations to influence identification, evaluation, effects analysis, project alternatives, and the resolution of harm.

Removing recognition of Tribal expertise and legal context. The draft deletes language recognizing the special expertise of Indian Tribes in assessing the eligibility of properties of religious and cultural significance. It also removes express references to the government-to-government relationship, Tribal sovereignty, treaty rights, and the fact that culturally significant places are often located on ancestral, aboriginal, or ceded lands.

Tribal Nations are sovereign governments, not members of the general public or sources of supplemental cultural information. General assurances that the regulations do not alter Tribal sovereignty or treaty rights do not resolve the concern if the operative provisions reduce Tribal involvement or disregard Tribal expertise.

Narrowing the effects considered. The proposal would remove references to indirect and cumulative effects and limit adverse effects to “only those reasonably foreseeable effects that have a reasonably close causal relationship to the undertaking.” It would also remove specific recognition of changes to a property’s use or setting and the introduction of visual, atmospheric, or audible elements as potential adverse effects.

These changes are especially significant for sacred places and cultural landscapes. A place may be harmed through changes to access, setting, privacy, sound, visibility, water, vegetation, ceremonial conditions, or the ability of Tribal citizens to continue religious and cultural practices. Those effects can be profound even when a project does not excavate, demolish, or physically alter the place itself.

Expanding agency control over the process. The draft provides that an agency official “may alter any deadline in this part, to be shorter or longer.” Agencies would also have greater control over the area of potential effects, the scope of identification, agency findings, and the consideration of comments from consulting parties.

The proposal would allow an agency to prepare a consolidated Section 106 report containing its identification, effects analysis, and proposed response before circulating that analysis for comment. This risks transforming consultation from a collaborative planning process into an opportunity to react to conclusions the agency has largely developed on its own.

The draft would also allow an agency official to treat matters addressed only briefly or left unaddressed as intentionally omitted because the agency considered them “comparatively unimportant or frivolous.” That is especially concerning where an agency does not understand or gives insufficient weight to Tribal knowledge, cultural values, or effects identified by a Tribe.

Replacing negotiated outcomes with agency decisions. The proposal would move away from memoranda of agreement and toward agency-issued memoranda of decision. The agency could determine how it will address effects or conclude that “other considerations outweigh” historic preservation concerns. This would allow the agency to consult, decline to secure agreement on how adverse effects will be addressed, and document its own decision to proceed.

Expanding exemptions and procedural off-ramps. The proposal encourages broader use of exemptions and other mechanisms through which categories of undertakings or programs could avoid full Section 106 review. The accompanying notice describes an intent to create additional “on- and off-ramps” and make Section 106 exemptions function more like categorical exclusions under the National Environmental Policy Act.

Section 106 and NEPA serve different statutory purposes. A determination that an activity has no significant environmental effect under NEPA does not establish that it cannot affect a historic property or a place of religious and cultural significance to a Tribal Nation.

Making public participation discretionary. The proposal characterizes public comment as “optional, not mandatory” and would largely leave the decision whether to seek public input to the agency official. This would reduce opportunities for affected communities, local governments, preservation organizations, and members of the public to identify properties, raise concerns, and inform agency decisions.

For further reaction and analysis: Earthjustice’s statement calls the proposal a “federal attack” on one of the few laws requiring the government to consult tribes before approving projects; Holland & Knight’s summary walks through the regulatory mechanics and what happens next.

Army Corps Approves Line 5 Tunnel Permit Beneath Straits of Mackinac Despite Tribal Opposition

August 13, 2026Wenona Singel

Yesterday, on August 12, USACE granted Enbridge a Clean Water Act section 404 permit for the proposed four-mile tunnel to house Line 5 under the Straits of Mackinac. The Record of Decision is here. The Corps stated its review satisfied NEPA, the ESA, NHPA §106, and federal tribal trust responsibilities and concluded the project would not impermissibly impair treaty rights. The timing is remarkable because the Sault Ste. Marie Tribe of Chippewa Indians’ government-to-government consultation with the Corps occurred only two days earlier, although the Corps’ ROD states that they engaged with consulting parties, including 20 Tribes, over approximately six years through approximately 60 monthly or ad hoc Section 106 consultation meetings and government-to-government consultation with tribes.

In a statement released by NARF, Managing Attorney David Gover stated that, “Our federal government has a solemn obligation to uphold and protect Treaty rights and is supposed to protect American waters and sacred spaces . . . Instead, the U.S. Army Corps just rubber-stamped a Canadian oil project that desecrates a Tribal sacred space and threatens to pollute the Great Lakes.” Bay Mills Indian Community President Whitney Gravelle stated, “Our treaties are solemn promises that carry the highest legal and moral obligation, yet the Corps cast that aside. They disregarded our treaty rights, ignored the information we provided through consultation, and pushed past cultural resource obligations under the manufactured excuse of an ‘energy emergency.’ Instead of honoring the commitments embedded in the 1836 Treaty of Washington, they chose to treat Tribal Nations as an obstacle rather than as sovereigns whose rights must be honored – all to advance Enbridge’s interests at the expense of our homelands, our waters, and the Great Lakes. This is a profound breach of the United States’ trust responsibility, and it is shameful.”

In March 2025, seven Michigan Tribes, including the Bay Mills Indian Community, the Sault Ste. Marie Tribe, the Little Traverse Bay Bands of Odawa Indians, the Little River Band of Ottawa Indians, the Grand Traverse Band of Ottawa and Chippewa Indians, the Match-E-Be-Nash-She-Wish Band of Pottawatomi, and the Nottawaseppi Huron Band of the Potawatomi voiced their opposition to the President’s fast-tracking of the USACE permit review process by his issuance of an Executive Order declaring an energy emergency. The Tribes declared that they were withdrawing their participation as Cooperating Agencies in the USACE EIS process, contending that the Corps designed a constrained, Enbridge-friendly EIS, marginalized Tribal expertise, treaty rights, and cultural resources, substituted procedural participation for genuine consultation, and then moved toward emergency approval, making Cooperating Agency participation by the Tribes a facade that offered legitimacy for the Corps’ process rather than influencing it. Importantly, the Tribes did not withdraw from all federal consultation. They continued to engage in government-to-government consultation and participated as consulting Tribes in the NHPA Section 106 process.

The USACE Permit Doesn’t Mean Enbridge Can Start Building the Line 5 Tunnel

Regardless of the USACE permit decision, Enbridge still lacks a valid Michigan Public Service Commission authorization. On July 31, 2026, the Michigan Supreme Court vacated the MPSC approval and ordered it to redo critical portions of its environmental/public trust doctrine analysis. The Court’s decision is here. The Court’s overview of the facts of the case noted that “[a]s the many Indian Tribes involved in the litigation point out, the Great Lakes and the Straits of Mackinac have nourished life in the region for thousands of years.” It held that the MPSC failed to adequately consider whether the tunnel would prolong Line 5’s operation, improperly compared the environmental impacts of alternatives, and failed to account for the public trust doctrine under MEPA, the Michigan Environmental Policy Act.

In addition, Earthjustice, which represents the Bay Mills Indian Community, plans to appeal the tunnel project permit recently granted by EGLE, Michigan’s Environment, Great Lakes, and Energy agency. The EGLE permit, issued July 15, 2026, is available here. The DNR issued a permit under Part 365 of the Natural Resources and Protection Act for the tunnel project on the same day. The EGLE permit acknowledges the grave seriousness of the tunnel’s cultural resource impacts. EGLE found that the tunnel project “will have adverse effects on known historic and cultural resources, including their destruction and/or removal,” and that those resources are “unique and highly significant to the Anishinaabek communities.” Yet EGLE issued the permit anyway, before approving a final Cultural Resources Mitigation and Monitoring Plan. Enbridge now has until December 31 to submit a plan addressing concerns and identified deficiencies raised by Michigan’s Tribes.