The U.S. Border Patrol would have free rein on all lands within 100 miles of the border under a proposal from Republican lawmakers who say they want to untie the hands of agents working to secure the border.
The measure would give the Department of Homeland Security authority to waive 36 bedrock environmental laws on any lands within a zone that stretches north past Tucson and Casa Grande in Arizona and includes the entire state of Florida, New York City and Mount Rainier National Park in Washington.
"We have to regain control of our lands from the drug cartels," Rep. Rob Bishop, R-Utah, said during a congressional hearing earlier this year. "National security has to be our No. 1 issue."
Bishop is the bill's sponsor. The 41 Republican co-sponsors include Rep. Paul Gosar , R-Ariz.
Democratic legislators and environmental organizations say the bill is the most extreme example yet of a campaign that has been gaining momentum for years to ignore environmental issues whenever border security concerns are invoked.
"The purpose of the bill is to use border security as a cover to effectively repeal more than a century of environmental protections," Rep. Raul Grijalva, D-Ariz., said during a recent congressional hearing.
The Obama administration says the proposed law is unnecessary and creates a false choice between the environment and border security.
The Border Patrol can already patrol large stretches of border but must get permission for vehicle patrols on some protected public lands and for certain activities such as maintaining roads or putting up surveillance equipment.
Earlier measure invoked
The measure would expand the authority granted to Homeland Security in 2005 to bypass environmental laws for border barriers and roads near the international border. That was used five times from 2005-2008 by then-Secretary of Homeland Security Michael Chertoff, including on hundreds of miles of Arizona-Mexico border.
The measure is the "most breathtakingly extreme legislative proposal of its kind I have ever seen," wrote John Leshy, a professor at the U.C. Hastings College of the Law, in House testimony.
Environmentalists say it would have dire consequences for all Americans since it would waive laws that keep our water, air and animals safe.
"The agency could basically operate with impunity," said Jenny Neeley, conservation policy director with the Tucson-based Sky Island Alliance.
Border Patrol Deputy Chief Ronald Vitiello said in an April 15 House committee hearing that the Border Patrol enjoys a close working relationship with public lands agencies, which allow it to fulfill its border-enforcement responsibilities.
A recent Government Accountability Office report based on interviews with Border Patrol agents in charge at 26 stations found that federal rules governing public lands along the border cause some delays but do not affect the overall security of their areas of operation.
The union representing Border Patrol agents in Arizona is in favor of the measure, saying agents will take any tool they can get "to properly secure the border and protect themselves from criminals intent on doing harm."
Bishop's bill would do three things:
• Give Homeland Security "immediate access" to any federally managed public land for border security, including building and maintaining roads, building fences, using vehicles to patrol and setting up monitoring equipment.
• Dictate that the secretaries of the Interior and Agriculture "shall not impede, prohibit or restrict" Homeland Security activities on federally managed public lands.
• Give the secretary of Homeland Security the ability to waive 36 bedrock environmental laws on any lands (not just federally managed lands) within 100 miles of land and maritime borders of the United States for border security activities.
The measure "gives DHS, with its 200,000 employees and a $55 billion budget, a permanent exemption from 36 important federal laws, including fundamental parts of the nation's environmental safety net," law professor Leshy said in a July 8 congressional hearing.
The laws include the Clean Water Act, the Clean Air Act, the Endangered Species Act and many other laws. The statutes date back to 1899 and have been enacted under more than a dozen presidents of both parties, Leshy said.
Kim Thorsen, the deputy assistant secretary for law enforcement, security and emergency management with the Department of the Interior, testified that, as written, the proposal could result in unintended damage to sensitive natural and cultural resources, including endangered species and wilderness at national parks and wildlife refuges.
"A False Dichotomy"
Pitting border security against the environment only confuses the issues, said Lynn Scarlett, former deputy secretary of the Department of the Interior from 2005 to 2009 in the George W. Bush administration.
"The idea that land managers stand in way of the achievement of national security presents a false dichotomy," Scarlett said.
During two different House hearings in recent months, top officials from the Departments of the Interior and Agriculture said securing the border and protecting the environment go hand in hand.
"A well-protected border means well-protected public lands," said Jay Jensen, deputy undersecretary for natural resources and environment at the Department of Agriculture. "The more we can assist the Border Patrol with stopping illegal traffic, the less impact there will be on the national forests."
On the Buenos Aires National Wildlife Refuge southwest of Tucson, the staff works well with the Border Patrol, said refuge manager Sally Gall.
"All these laws are in place for a reason and one shouldn't trump another," Gall said. "We need to protect our natural resources."
How it works now
Border Patrol agents can patrol as needed on many federal lands such as the Buenos Aires National Wildlife Refuge southwest of Tucson. But they need permission to put up surveillance equipment or establish a forward operating base, for instance.
Land managers evaluate the requests, taking into account the importance of border security as well as protecting the land and habitat. Sometimes, land managers suggest different locations that would have less impact on wildlife or habitat. Sometimes, the request is granted; on occasion, it's not.
On federally designated "wilderness" lands, agents are restricted to where they can patrol in cars. At Organ Pipe, which is 97 percent wilderness, agents can do routine car patrols on 107 miles of dirt roads and can go off those roads when they are in pursuit of people.
They are allowed to patrol anywhere on foot or horseback.
A memorandum of understanding signed in 2006 by the secretaries of the Interior, Agriculture and Homeland Security lays out the groundwork for how the Border Patrol can patrol on federal lands.
That agreement has been used several times, the GAO found. In Southwestern Arizona, the Border Patrol coordinated with Organ Pipe Cactus National Monument officials to set terms for reporting off-road-vehicle incursions at the park and with Cabeza Prieta National Wildlife Refuge officials to establish strategies for catching illegal immigrants closer to the border in the refuge.
In Southeastern Arizona, the Border Patrol worked with Coronado National Forest officials to create a strategy to improve and maintain roads and choose a helicopter landing spot in wilderness areas.
Still, conflicts can cause delays for the Border Patrol. It took more than four months for a land manager in Arizona to give the Border Patrol permission to move a truck-mounted, mobile surveillance system to a certain area, the GAO reported. By the time permission was granted, illegal traffic had shifted.
Bishop cites such examples to show that all is not well between agents and land managers.
"I'm glad you are getting chummier with the memo of understanding," he said during an April 15 House hearing. "But the memo of understanding is not the same thing as border security. The memo of understanding is not a solution; it is a process. And the process is simply not working."
Violent crime down
This isn't the first time Bishop has proposed giving the Border Patrol more access to federal borderlands.
In 2010, a month after Robert Krentz was killed on his Cochise County ranch, Bishop introduced a bill that would give Border Patrol agents total access to public lands. The legislation was based on authorities' belief that the person who killed Krentz fled into Mexico through the San Bernardino National Wildlife Refuge, 17 miles east of Douglas.
But sweeping proposals paint an extreme picture that distorts reality, said Dan Millis, program coordinator for the Sierra Club Borderlands Campaign.
Apprehensions of illegal immigrants are down nearly 60 percent along the U.S.-Mexico border over the past six years, and FBI crime data show violent crime has been falling in U.S. border cities and is lower than the national average, found an analysis by USA Today.
Bishop isn't the only politician hoping to make access easier for border agents. A border security bill sponsored by U.S. Sens. John McCain and Jon Kyl includes a clause that would require the secretaries of the interior and agriculture to provide Customs and Border Protection agents with immediate access to federally managed public lands within 150 miles of the Southwest border region.
Contact reporter Brady McCombs at 573-4213 or firstname.lastname@example.org