Down with the "National Insecurity and Federal Lands Destruction Act"

By Heather Hansen, Red Lodge Clearing House

Updated afternoon of 10/5/11 to reflect recent changes to the bill.

I was cruising along the shoreline of Upper Waterton Lake a few years back, crossing from Canada to Goat Haunt, Montana. It was around the time of the sixth anniversary of 9/11 and, as we crossed the international border, I remember remarking, ‘Wow, this is it?’ The border amounts to a band of grass where the lodgepole pines have been cleared in a tidy strip running up the mountainside.

For anyone once connected to people who died when the towers caved in on themselves, the crisp air and cerulean blue skies of early fall now brings a feeling of dread, and of longing for the days before that one, when we had moved through the world unfettered by profiling, pat-downs and reinforced cockpit doors. It sounds corny but there, in the International Peace Park with its clearly porous border, I could exhale and feel some solace.

In stark contrast is the claustrophobia induced by the National Security and Federal Lands Protection Act, which is currently making its way through the House. This sweeping piece of legislation would give the U.S. Border Patrol unprecedented rein over all public lands within 100 miles of our borders and coastlines. That’s an area that covers 10 entire states, including all of Florida and Hawaii. In the west, it encompasses Glacier National Park, Olympic National Park, Mount Rainier National Park, the Sonoran Desert National Monument, Carlsbad Caverns National Park, Big Bend National Park and many other parks, wilderness areas and wildlife refuges.

The bill would supersede the mission of the federal agencies that currently steward that land from fulfilling their legal missions, including the U.S. Departments of the Interior (DOI) and Agriculture (USDA), which includes the Bureau of Land Management, the Forest Service and the National Park Service.

H.R. 1505 would allow the Border Patrol to build roads, transmission lines and security installations--wherever and as many as they want. Congress would have no power to intervene and public opinion would have no bearing on their actions. The bill would negate a whopping 36 environmental statutes. These are the laws that form the bedrock of the protection of our natural resources, including the National Environmental Policy Act, Endangered Species Act, Clean Air Act, Safe Drinking Water Act, Wilderness Act and Federal Land Policy and Management Act.

(Update: The measure passed the Natural Resources Committee on October 5 with some amendments, including the removal of maritime borders, which limits the bill’s reach to land within 100 miles of our borders with Canada and Mexico. So-called "sunset" language was also added, forcing the legislation to expire in five years.  The bill now goes before the full House.)

Rep. Rob Bishop (R-UT), Chairman of the House Subcommittee on National Parks, Forests and Public Lands, introduced the bill, which has 49 Republican co-sponsors.

Bishop’s outraged insistance that environmental laws are getting in the way of the border patrol are unfounded. It was such a concern that led to a memorandum of understanding (MOU) in 2006 called Cooperative National Security and Counterterrorism Efforts on Federal Lands along the United States’ Borders, in which the Department of Homeland Security (DHS), DOI and the USDA agreed to work together to give the Border Patrol access to public lands. It specifically addresses giving border agents free reign when ‘in hot pursuit’.

It was the horrific shooting death of a brave border patrol agent, Brian Terry, in a remote Arizona canyon last December that Rep. Bishop says encouraged his action on the bill. Terry was killed in a gun battle against a ‘rip crew’ that was poised to rob drug smugglers entering the U.S. illegally. He was part of the specially-trained U.S. Border Patrol Tactical Unit, so-called BORTAC—a kind of ‘special ops’ of border protection—whose members undergo grueling pre-deployment training including ‘drown-proofing’ and a timed, six-mile march with a hefty pack.

Border Patrol agents patrol the U.S. border with Mexico seen on Aug. 25, 2010, near Nogales, Ariz. (U.S. Army photo by Staff Sgt. Jim Greenhill).

Given their superior training, I’d argue that Terry was well-prepared for what he encountered in that canyon. Neither the Clean Air Act nor any park rangers got in his way. Terry’s colleagues apprehended four of the five suspects they’d been pursuing that night. I doubt Smokey the Bear himself could’ve stopped them from carrying out their mission.

Over the past several years, the number of border patrol agents has nearly doubled, and the DHS has installed surveillance equipment and put up hundreds of miles of fencing on, and adjacent to, public lands in the Southwest. And, according to FBI crime statistics, border agents are doing their jobs better than ever. Violent crimes in Arizona, California, New Mexico and Texas have declined sharply in recent years, as have the number of people trying to enter the country illegally.

When Bishop first insisted that border agents were hindered by environmental protection, the Government Accountability Office (GAO) studied the issue for nearly a year. They interviewed the folks running the show at 26 border patrol stations on the U.S./Mexico border. Their finding: "22 of the 26 agents-in-charge reported that the overall security status of their jurisdiction is not affected by land management laws. Instead, factors such as the remoteness and ruggedness of the terrain have the greatest effect on their ability to achieve operational control."

Commenting on the GAO results, Brandon Judd, president of the Border Patrol agents' union in Arizona, told the Arizona Daily Star that he disagrees with Bishop's insistence that the border patrol needs carte blanche in order to carry out their mission federal lands. "They are protected lands for a reason," he said.

The federal agencies now responsible for upholding the law of public lands foresee disaster should H.R. 1505 clear the Senate. Kim Thorsen, DOI Deputy Assistant Secretary of Law Enforcement, Security, and Emergency Management warns of the potential impact on nearly 500 parks, preserves and refuges, “resulting in unintended damage to sensitive natural and cultural resources, including endangered species and wilderness.” The bill could also alter 1,000 miles of Bureau of Reclamation channels, levees, canals and bridges that, by law, deliver Colorado River water to users here and in Mexico.

Jim Pena, Associate Deputy Chief of the National Forest System, told a House subcommittee in July that the legislation “creates a false choice between environmental protections and securing our borders.”

"Securing our borders and addressing impacts to our public lands are both critically important goals that need not conflict," he said.

If anything, Bishop’s bill could make matters worse for those burdened by guarding our nation’s perimeter. Roads carved into forests and jungles in places like the Amazon and the Congo, and even some places in North America, have made it infinitely easier for baddies to traverse once-remote areas.

If there really are some places along our borders where a wilderness designation is obstructing the work of the border patrol, we should be able to negotiate improved access for agents in those particular areas. Defending our canon of environmental protection doesn’t put plants and animals above people, as Bishop has suggested, but rather it places a premium on our liberty, viability and spirit.

Essays in the Range blog are not written by High Country News. The authors are solely responsible for the content.

Heather Hansen is an environmental journalist working with the Red Lodge Clearinghouse /Natural Resources Law Center at CU Boulder, to help raise awareness of natural resource issues.

Image of Glacier Waterton International Peace Park courtesy NPS