Green Watch

Off Limits: Homeland Security & Green Groups Fight Over the Borderlands

Off Limits: Homeland Security & Green Groups Fight Over the Borderlands

by Cara Daniel, Green Watch, February 2012 (view as PDF here: GW0212)

Summary: The federal government has set aside hundreds of millions of acres of public land for ranching and forestry, national parks and wilderness areas, and it tasks various agencies to monitor and regulate land conservation and use.  Because over 20 million acres of these federally-protected lands can be entered from across the U.S. border, the Department of Homeland Security (DHS) is required to patrol often difficult and hard-to-reach terrain.  The job performed by the U.S. Border Patrol is made even harder by restrictions that require border security projects to abide by a myriad of environmental protection laws. Recently a bill in Congress, H.R. 1505, the National Security and Federal Lands Protection Act, was introduced to immunize DHS from many of these federal restrictions.  Green groups are up in arms.  They fear that DHS enforcement will hurt the environment and trample on individual rights.  But many Americans living along the increasingly crime-ridden borderlands disagree. 

Over 670 million acres in the United States are set aside as national forests, wildlife refuges, rangelands, and national parks. These acres comprise about 29 percent of America’s total land area, public property owned by the federal government and overseen by four agencies: the U.S.  Forest Service in the Department of Agriculture, and three Interior Department agencies: the Bureau of Land Management (BLM), the Fish and Wildlife Service (FWS), and the National Park Service (NPS). These federal agencies are dedicated to protecting the land for productive and recreational use and for preserving America’s natural heritage, including spectacular landmarks like the Grand Canyon and Old Faithful.
But officials at these agencies are very worried by the increase in criminal behavior on the public lands, which is threatening their ability to manage the land and ensure the safety of those who work and visit there.  Highly valuable trees are uprooted and stolen from national forests.  Archaeological sites are vandalized and Civil War artifacts looted from national battlegrounds.  Marijuana cultivated on public land has been linked to international drug smuggling cartels. And after 9/11 there is fear that terrorists may enter the U.S. through unguarded public borderlands.
Of particular concern are the approximately 20.7 million acres of federal land along the U.S.-Mexico border. There is also over 1000 miles of federal land running along the U.S.-Canada border.
The number of illegal aliens detained at the border has fallen in recent years.  But federal officials worry about an increase in the number of violent criminals, drug smugglers and human traffickers who are among the hundreds of thousands of people who cross the U.S. border illegally each year.  Moreover, illegal border-crossers have created hundreds of miles of illegal trails, causing erosion and destroying habitat and leaving tons of trash and abandoned vehicles in wildlife refuges and forestlands.  Local news reports and anecdotal information suggest that thefts and vandalism, murders and rape incidents on federal lands are on the increase.
For instance, federal land officials overseeing the Coronado National Forest and the Sonoran Desert National Monument in Arizona have observed that smugglers usually carry weapons, and their concern for visitor safety is growing.  In 2002 the National Park Service closed most of Organ Pipe Cactus National Monument after a park ranger was murdered by Mexican drug traffickers. Officials at the Buenos Aires National Wildlife Refuge, which is directly adjacent to the border, have closed parts of it to reduce the risk to public safety.
But closing wildlife refuges and national monuments to American tourists won’t stem the flow of illegal aliens and the crime that is accompanying them.  A 2002 review by the Interior Department’s Inspector General’s office reported that federal lands were becoming so dangerous that they raised “concerns about the safety of using part-time law enforcement officers.”
Over the past decade, three of the four public lands agencies have increased their permanent law enforcement personnel.  Since 2000 there are 18 percent more permanent law enforcement officers in the Forest Service (from 630 to 742) and 40 percent more in the Bureau of Land Management (from 213 to 300).  Since 2006 there are 26 percent more law enforcement officers in the Fish and Wildlife Service (from 217 to 273).  Permanent law enforcement officers in the National Park Service declined by 12 percent since 2005 (from 1,658 to 1,450), but this was offset by increased seasonal hiring which produced a 25 percent increase in temporary officers.
In 2010 the House Committee on Natural Resources asked the Government Accountability Office (GAO) to investigate the extent of criminality on public lands and suggest what might be done about it.  A report issued inDecember 2010 (GAO 11-144) urged the agencies to do a better job coordinating their patrol efforts and to more systematically collect and share information about crimes and violence.  The report was only the latest in a number of government studies and programs urging increased law enforcement personnel and training.
Homeland Security Along the Borderlands
Still, there is only so much you can ask of Smokey the Bear.  Tightened budgets and personnel freezes constrain what federal lands agencies can accomplish.  While it’s easy for the GAO and Congress to urge the agencies to more efficiently manage their law enforcement personnel and practices, getting the job done is not so easy.
After the 9/11 terror attacks Congress authorized the creation of the U.S. Department of Homeland Security (DHS).  To coordinate federal government strategies to protect Americans at home DHS became the hub for a number of federal agencies with overlapping jurisdictions and divided authority. DHS oversees customs, immigration and naturalization, transportation security, the Coast Guard and Secret Service and federally-declared emergencies (FEMA).  Among its central responsibilities is border security.
Since the mid-1990s, the U.S. Border Patrol has upped its role and presence in fighting crime along the US-Mexico border.  In areas like El Paso (Texas)/ Juarez and San Diego (California)/Tijuana the Border Patrol is making progress in curtailing illegal narcotics and human trafficking.  DHS border enforcement in urban and populated areas seems to be working better than before.  But this strategy has had an adverse effect: it is redirecting illegal trafficking to remote and desolate areas along the border, forbidding and barren landscapes that can take days to cross. These are precisely the areas managed by federal land agencies.
About 40 percent of the 1900 miles of the U.S. southwestern border are federal lands.  Undocumented aliens crossing the border cannot easily avoid being noticed in this vast expanse.  On the other hand, the U.S. Border Patrol cannot easily and quickly capture them before they disappear into American towns and cities.
Not that the Border Patrol lacks resources.  In 2005 DHS launched its Secure Border Initiative, a multiyear, multibillion dollar agenda that aims to secure US borders by reducing illegal immigration. The Border Patrol has more than doubled its number of agents to 21,000, and DHS has spent about $1.6 billion on unmanned drones, cameras, radars, sensors and other new technologies to detect illegal entry in the southwestern borderlands region.  Roads have been built and lighting installed along the border.  As of October 2011, about 651 miles of border fencing has been completed.
In recent years the number of illegal migrants detained at the border has fallen dramatically from 1.6 million in 2000 to 340,000 in 2011—it’s hard to say whether that’s because of better enforcement or a less inviting U.S. economy—but those who are caught by the Border Patrol are smuggling more drugs and money into the U.S. than ever before.
In the recent GAO report, land agency officials admitted that illegal border activity is damaging natural resources. A manager for one national wildlife refuge estimated that over 235,000 people had entered the country illegally across refuge lands, disturbing wildlife, creating more than 1,300 miles of illegal trails and leaving 500 tons of trash and over 100 abandoned vehicles.
Environmental groups are well aware of the effects of illegal entry. In 2009, the Arizona Bureau of Land Management reported that volunteers had cleared away 234 tons of trash, 800 tires, 404 bicycles, and 62 vehicles—all remnants from illegal border crossings.  Illegal border crossers also create havoc by starting wildfires, either by accident (e.g. a cooking fire) or on purpose (i.e. to distract law enforcement officers).
H.R. 1505  Protects Both Public Lands and the Border
Last April these ongoing problems led Rep. Rob Bishop (R-UT) to introduce H.R. 1505, “The National Security and Federal Lands Protection Act.”  Its two-fold purpose is to protect America’s public lands from despoliation and secure America’s borders from illegal entry.
Bishop is chairman of the House National Parks, Forests, and Public Lands Subcommittee.  His bill would “prohibit the Secretaries of the Interior and Agriculture from taking action on public lands which impede border security.”
In other words, it would give the Border Patrol instead of federal land managers operational control over U.S. borders on public lands. The Department of Homeland Security (DHS) would have authority over federal lands within 100 miles of the U.S. border, and it would be authorized to waive any environmental policies that impede border security.
A GAO report (11-38) on Southwest border security acknowledges that Border Patrol activities can cause environmental damage.  Building fences and vehicle barriers, erecting surveillance equipment, and using vehicles to pursue illegal aliens can degrade natural resources that are protected by environmental laws.
However, Rep. Bishop argues that the federal government’s land management agencies have failed to properly consult with DHS on ways to mitigate environmental damage.  Instead, they use permitting requirements, environmental impact statements, and other tactics authorized by federal environmental and historical preservation laws to stymie the Border Patrol.  The Border Patrol complains that illegal traffickers will often change their tactics and locations by the time its officers can complete the paperwork demanded by the land management agencies.
If H.R. 1505 is enacted, disputes over natural resources and historic properties would be resolved through a regulatory process in which the Border Patrol would be designated lead agency in charge of consultation, assessment and decision making.
The GAO report says Border Patrol stations have complained that it routinely takes several months to obtain a permit from land managers to transport mobile surveillance systems. Over half the Border Patrol stations reported that they experienced delays in getting federal land managers’ permission to gain access to federal public lands because of the time it took to complete requirements of the National Environmental Policy Act (NEPA) and the National Historical Preservation Act (NHPA).
The report further notes that in federally designated “wilderness areas” (under the Wilderness Act of 1964) DHS is prohibited from constructing temporary structures and using motorized equipment.
Federal land managers at Arizona’s Organ Pipe Cactus National Monument refused the Border Patrol’s request to build an SBI sensor tower that would have allowed it to detect illegal border crossings. Forced to relocate the tower onto more distant state-owned land, the Border Patrol was less able to apprehend illegal aliens before they reached mountain passes.  Organ Pipe Cactus National Monument has been called the most dangerous national park because of extensive drug trafficking and illegal border crossings occurring there.  Visitors are reminded of the danger upon entering the park’s Kris Eggle Visitor Center.  The Center is named after a park ranger who was killed by members of a Mexican drug cartel.
Greens vs. the Border Patrol
H.R. 1505’s fifty-two Republican co-sponsors see the legislation as a step towards better homeland security. Also supporting 1505 are the National Association of Police Organizations (a rival to the Fraternal Order of Police, NAPO endorsed Democrats Obama, Kerry and Gore for president in 2000-2008), former Border Patrol officers, livestock associations, and motorcycle and four-wheel drive recreational trail enthusiasts.
The Public Lands Council, an association of ranchers who own private land and lease public lands, backs H.R. 1505: “Our members along the southern border are suffering huge losses, including livestock weight loss, constant fence and waterline repairs, manmade fires that damage forage and infrastructure, and general harm to the range and the resources public land ranchers manage.”
So does the National Cattlemen’s Beef Association, which says “cattlemen and their families and indeed all Americans living along the border live with the constant threat of danger…Dangerous and aggressive drug and human traffickers coming across the border…aren’t afraid to harm ranchers who are only trying to go about their daily business.”
On the other side, opposing the bill are the Sierra Club, Wilderness Society, Greenpeace, Earthjustice, World Wildlife Fund, and the Center for Biological Diversity, among others.
In a coalition letter they argued that “there is not even a requirement to consider the impacts to imperiled species or to meet with the Fish and Wildlife Service to discuss ways to avoid or minimize those impacts.” Claiming that the public lands agencies have the greatest expertise in balancing contending interests, the green groups worry that “activities that assist in securing the border” would grant DHS unchecked power to do “damage to healthy ecosystems and our irreplaceable historic sites without being held accountable.”
The most extreme of the environmental groups suspect that H.R. 1505 serves naked party politics. Sky Island Alliance urges its members to “stop cynical politicians from playing politics with border security and the environment.” The Center for Biological Diversity argues, “It makes no sense to turn our back on these laws to satisfy the narrow agenda of a few politicians looking to score points with their most extreme constituents.”
At a May 10, 2011 speech in Texas at the US-Mexico border, President Obama tried to have it both ways.  He applauded his Administration’s commitment to both border security and immigration reform.  Rep. Bishop responded in a press release.  He found it “premature to discuss immigration policies when thousands of criminals continue to cross our border…Gaining full operational control of the border should be our number one priority. If your bathtub is overflowing, your first step isn’t to start bailing out water; it’s to turn off the spigot. The same practice should be applied to the border.”
People Before Animals
One amazing example of how environmental concerns take precedence over border security is the announcement of a three-year project to monitor the survival of the jaguar in southern Arizona and New Mexico. The University of Arizona’s Wild Cat Research and Conservation Center will install 240 cameras at 120 locations on public and private lands.  It wants to see whether the jaguar, an endangered species, is native to Arizona or whether it migrates from Mexico.  To track jaguar wanderings DHS has given university researchers a federal grant of $771,000.  This is a portion of a $6.8 million grant that DHS is giving the Interior Department to carry out environmental projects over the next several years. According to the Arizona Daily Star (December 5, 2011), the DHS-funded projects “are intended to compensate for environmental damage done by illegal immigrants and border protection activities, including the border fence.”
Since 1996 there have been confirmed sightings of no more than five jaguars in New Mexico and Arizona. The University’s extensive video monitoring project may help researchers develop a species recovery plan by measuring the effects of the border fence, illegal immigrants, and border security vehicles and equipment on the endangered jaguar. On the other hand, the researchers admit that they don’t know whether their project will enable them to count the number of jaguars in the U.S. or whether it will take multiple photos, if any, of the same wild cat.
When Arizona Governor Jan Brewer learned about the DHS grant, she blew her stack. On her Facebook page, Brewer called the study a waste of taxpayers’ money, especially because DHS funding should be used to secure the U.S.-Mexico border.
Conservative commentators were not happy either. Said columnist Katie Pavlich in a Town Hall op-ed: “Homeland Security is more concerned about how a border fence will affect a Jaguar…whose habit is located many miles into Mexico, not in the United States, putting the security of the United States at risk in the process. Next time Janet Napolitano tells us she doesn’t have enough resources to secure the entire border, it’s not that she doesn’t have the resources, it’s that she is spending them on extreme environmentalist projects courtesy of the taxpayer.”
A USA Today article cited Zack Taylor of the National Association of Former Border Patrol Officers: “What has happened is the importance of the environment has come to rule everything else. In our view, the people are more important than the porcupine or the wolverine or the wolf or the grizzly bear.”
Is H.R. 1505 Necessary?
The Obama administration has not asked for H.R. 1505.  In a letter to Rep. Bishop in October 2009, DHS Secretary Janet Napolitano admitted, “Overall, the removal of cross-border violators from public lands is a value to the environment as well as to the mission of the land managers.” But her policy is to abide by existing Memorandums of Understanding on interagency cooperation reached between DHS and the land management agencies at Interior and Agriculture on how to apply existing environmental law.
Those who oppose H.R. 1505 appeal to the part of the October 2010 GAO report that states, “[M]ost [Border Patrol] agents reported that land management laws have had no effect on Border Patrol’s overall measure of border security.”
By contrast, backers of H.R. 1505 believe current technology and personnel are insufficient without giving border patrol officers unfettered access to U.S. borderlands.  A June 2011 Gallup poll reports that 53% of Americans say “the need for government action this year to halt the flow of illegal immigrants at the borders is ‘extremely important,’ the first time a majority have held this view…since 2006.”
It seems clear that “comprehensive immigration reform” will not be part of America’s policy agenda until the issue of securing the border is adequately addressed.  Fundamental to border security are the principles of national security and public safety.  Says former border patrol officer Zack Taylor: “No other laws—including environmental protection—should supersede those principles.”
What about civil liberties concerns?  Opponents of H.R. 1505 worry that the open-ended phrase “activities that assist in securing the border” can mean anything without checks and balances.  They say H.R. 1505 is a government overreach giving DHS too much power over what Americans can and cannot do on public lands.
“I just can’t see how any lawmaker would think it’s a good idea to allow the Department of Homeland Security to make sweeping decisions about our land and ignore our rights without any public accountability,” said Sen. Jon Tester (D-MT).
Another Montana lawmaker disagrees.  Rep. Denny Rehberg (R-MT), one of 1505’s fifty-two co-sponsors, says, “The simple idea of the bill is to provide the border patrol the same access on federal land that it currently has on state and private land.  There is nothing about this bill that creates any new authority to intrude into the lives of Americans.”
Cara Daniel was a research associate at Capital Research Center in Fall 2011.  She is a graduating senior, class of 2012, at Hamilton College in Clinton, New York.


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