From a small plane flying only 1,500 feet above the Arizona desert on a hazy February day, the landscape appears as beautiful as it is inhospitable. The sandy dirt glows in psychedelic orange and yellow, and the little mountain ranges southwest of Tucson look like bristly cactus transformed into stone, thrusting upward to nearly touch the plane. There are few signs of human activity until we approach the Mexican border, where Organ Pipe Cactus National Monument and Cabeza Prieta National Wildlife Refuge, two huge conservation areas, supposedly protect more than a million acres of federally designated wilderness.
"There's one," Cyndi Tuell, a conservationist lawyer, explains over the headset. She has her long reddish hair rubber-banded into pigtails, and her forearm tattoo commemorates Rachel Carson's courageous 1960s Silent Spring broadside against pesticides. Pointing out her window, she adds, "And another one – do you see it?" Quickly the number grows: "Five, six ... 10, 12 ... This really pisses me off. It's worse than I thought."
Tuell is counting "renegade roads" – the vehicle tracks shooting off in all directions from the few legal roads. At least 10,000 miles of renegade roads have been carved into the wilderness areas that make up more than 90 percent of the total area of the monument and refuge – even though wilderness is, by law, supposed to be "untrammeled by man." It's probably the worst violation ever of the spirit of the 50-year-old Wilderness Act.
Even more surprising: Though smugglers and undocumented immigrants sneaking north from Mexico began creating renegade roads decades ago, these days most of them are made by U.S. Border Patrol agents trying to seal off the border. Below us, Border Patrol trucks and ATVs cut across the desert, generating a plume of dust. "A lot of these renegade roads are new," Tuell says. "Every time I fly here, I see more new ones."
Skittish desert bighorn sheep live in these wilderness areas, along with rare Sonoran pronghorn, desert tortoise and unnervingly large blond tarantulas. All of the local wildlife is stressed by the surge in Border Patrol traffic, which continues to bring noise, erosion and human presence to a once-remote corner of the West. Our pilot, Will Worthington – a gray-haired, semi-retired engineer with Lighthawk, a nonprofit conservationist flight service – circles the plane into Mexican air space and back, so we can see how the U.S. government has also fortified this border segment with walls and fences. The barriers further fragment wildlife habitat. Yet few people know about it, partly because most environmental groups shy away from the issue, wary of tangling with national security and immigration politics.
The handful of environmentalists who are involved – like Tuell, who is volunteering her time – can't even use their standard tool, litigation, because Congress has decided that environmental laws do not apply along the U.S.-Mexico border. It's a lopsided battle, fighting the militarized Border Patrol and the politicians who exploit anxiety over national security, and at times, Tuell says, "It seems hopeless." To me, the spiraling tire tracks on the Arizona desert resemble the ancient symbols inscribed into the deserts of Peru and Chile by people of the Nazca culture, more than a thousand years ago. The Nazca likely created their giant geometric shapes for religious purposes. But these Border Patrol designs, which will also persist for a long time, symbolize something darker: our 21st century fear and anger, and a burst of U.S. government lawlessness.
Official bending and breaking of laws is nothing new, of course. Highlights over the last two centuries include the federal government's casual disregard of nearly every treaty made with Native American tribes, and the lax enforcement of voting rights for African-Americans clear up into the 1960s. But recent decades have brought a new wave of official law-breaking. Reacting to the Sept. 11, 2001, attacks by al-Qaeda terrorists from the Middle East, the CIA went on a binge of waterboarding and otherwise torturing suspected terrorists in secret rooms overseas. Our continuing imprisonment of such suspects in the U.S. "detention camp" in Guantanamo Bay, Cuba, without trials to determine whether they're guilty, violates U.S. and international laws, according to the United Nations and other watchdogs. Likewise, the National Security Agency is arguably going too far with its pervasive surveillance of U.S. citizens' emails and phone calls.
Federal environmental laws have also been abused in the name of national security. "Congress and the White House have a taste for it, because they can get away with it," says Dinah Bear, an intense former D.C. insider. She was the chief lawyer for the Council on Environmental Quality, which advises presidents about environmental issues, under Ronald Reagan, George H.W. Bush, Bill Clinton and George W. Bush, and she believes, "This is the most important issue now. They can waive environmental laws that represent 40 years of work and achievement, and take away the rights of citizens to protest it."
Bear backs up her words with legal documents when we meet in her Tucson house. She and her husband, Roger McManus – who worked internationally for the Interior Department – bailed out of D.C. in 2011, but both continue to fight the government's suspension of environmental laws. "It's basically what autocratic nations do – they start waiving laws because they've identified an emergency, real or unreal," McManus says.
The couple witnessed the growing national angst close-up in D.C., well before 9/11. As the number of undocumented immigrants nationwide more than doubled in the 1990s, Congress and President Clinton passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which not only increased deportations, but also authorized the Attorney General to waive the two most important environmental laws – the Endangered Species Act and the National Environmental Policy Act (which requires analysis of impacts) – to "ensure expeditious construction of the barriers and roads" for improving border security.
Initially, the federal government's new power was supposed to be used only to build 14 miles of triple parallel fences in the San Diego area, but then the al-Qaeda terrorists struck in New York and D.C. at the beginning of George W. Bush's presidency, and all political hell broke loose. Congress worked with Bush to combine many agencies, including the Border Patrol, into the new massive Department of Homeland Security, and passed a series of new security measures (mainly the REAL ID Act of 2005) that authorized the Homeland Security Secretary to construct barriers all along the border without bothering to comply with any federal, state or local environmental laws.
The Congressional Research Service called the REAL ID Act the most sweeping suspension of laws in U.S. history, because it "provides a secretary of an executive agency the authority to waive all laws such secretary determines necessary." Then-Secretary of Homeland Security Michael Chertoff invoked this authority to issue a series of "waivers" of dozens of laws to impose border security measures, including infrastructure for "surveillance, communication, and detection devices."
The Department of Homeland Security also had the upper hand in a key 2006 Memorandum of Understanding that was signed by the federal lands' caretakers –– the Bush administration's secretaries of Interior and Agriculture. It calls for "a cooperative spirit" among all the agencies to secure the border with minimal environmental impact. But it allows Border Patrol agents to drive pretty much wherever they need to in pursuit of illegal border-crossers. Over the same period, the government greatly increased Border Patrol manpower, from roughly 5,000 in 1995 to more than 21,000 now – putting a lot more agents, and patrols, into the desert.
Environmentalists, and others concerned about such waivers and the unleashing of federal power, filed lawsuits claiming violations of the U.S. Constitution. They lost. Congress' wording authorizing the waivers made lawsuits all but impossible. Says Bear, who was involved in those court battles, "They're taking away the rights of citizens to participate in government decisions."
When I first heard that the desert is being trashed by extra-legal national security measures, I tried to rationalize it: That's too bad, but in today's post-9/11 era, it's a question of priorities. At least the impacts are localized, the populations of most border species are not in trouble, and if environmental laws were invoked, they'd likely cause long delays on critical projects. But as I observe the collateral damage up close, and talk with people who live and work along the border, I begin to wonder, Is the trade-off worth it?
Dan Millis, a lean, bearded Tucson-based Sierra Club staffer, is apparently the only professional environmentalist concentrating on the border issue now. He got involved as a volunteer for No More Deaths, a group that helps undocumented immigrants survive their hellish walks across the desert. In 2008, in a canyon just north of the border, he discovered the body of a 14-year-old Salvadoran girl who had died of exhaustion. Two days later, the U.S. Fish and Wildlife Service ticketed him for littering, because he'd left water jugs in the Buenos Aires National Wildlife Refuge for thirsty immigrants.
The Sierra Club funded Millis' job in 2008, relying on local grassroots contributions: He spends 70 percent of his work time on problems along the entire Mexican border, from San Diego to the Gulf of Mexico. (The rest of his time goes to energy issues.) He drives me out to the San Pedro River Valley southeast of Tucson, a remarkably diverse ecosystem where high-elevation grasslands catch rain, to meet John Ladd, a scruffy fourth-generation cattle rancher operating along 10 miles of the border, and Bill Odle, an even scruffier ex-Marine, who, with his wife, Ellen Logue, built an off-the-grid house a stone's throw from the border. They take us through the ranch, pointing out where Border Patrol agents have cut ranch fences to pursue border-crossers. The agents "tear the shit out of everything – leave every gate open and interfere with my corrals and breeding operations," Ladd says. "They've run over eight of my cows and only paid me for one. Their helicopters chase my cows."
We pass a spot where the Border Patrol has erected a tower, maybe 80 feet tall, equipped with cameras and sensors, and reach "that goddam wall," as both Ladd and Odle call it. It's a 13-foot-high, assertive pedestrian barrier made of rust-colored mesh, marching for more than 20 miles across the grass. "There's wildlife corridors crossing the border, all along here, but the wall cuts them off," Ladd says. He and Odle have observed deer, javelina, black bears, coyotes, bobcats, badgers and snakes being blocked by the mesh wall. "Bears used to wander from mountains in Mexico to mountains on this side, and so did the deer," Ladd says, "but not now." I notice a weird, high-pitched whine: the wind blowing through the fine-wire mesh. "The son-of-a-bitch is also noisy," Odle says.
At the edge of the San Pedro Riparian National Conservation Area, where a rare year-round desert river supports giant cottonwoods, the border runs straight across the river, and the mesh morphs into a vehicle barrier made of steel rails, which permits pedestrian and wildlife passage. A Border Patrol agent, parked on the other bank, watches for anyone who tries to take advantage; agents are supposed to be there 24/7 and keep their headlights on at night. Beyond his truck, the border fortification toughens again – 18-foot-tall steel posts with almost no space between them, topped by steel plates.
The river is "the last remaining wildlife corridor in a 29-mile-long stretch of the wall," says Millis, "and the Border Patrol is hardly acknowledging that." Odle points to a tree along the river where eagles used to nest. When the security measures were installed, the eagles abandoned the nest.
Most of the Arizona-Mexico border has been fortified by now: There are 132 miles of pedestrian barriers (the toughest obstacles, at least 10 feet tall and made of continuous mesh, or steel panels or posts so closely placed that people can't squeeze through them) and 242 miles of looser, variously shaped vehicle barriers, according to American Border Patrol, an Arizona-based group that supports maximum border security. No doubt the barriers and increased patrols have discouraged illegal traffic, but it's difficult to assess how much. Many border-crossers simply cut through or climb the pedestrian barriers, or walk through the vehicle barriers, or use one of the growing number of tunnels underneath the border, and then slip past the patrols.
The number of undocumented immigrants in this country increased every year from 1990 to 2007, then leveled off at around 12 million. But obviously there are many factors at work beyond the security measures. The recent U.S. economic slump has reduced the number of job openings for immigrants, and Mexico's fertility rate has changed dramatically. (From nearly seven births per woman in 1970, it's dropped to only 2.3 births per woman now, which eases the population pressure that helps drive immigration to the U.S.)
The number of Border Patrol arrests each year peaked at roughly 1.7 million back in 1986, when the agency had fewer than one-fourth the number of agents it has now. The arrests declined for a few years, then rebounded to nearly 1.7 million in 2000, when the Border Patrol had fewer than half the current number of agents. Last year, the ramped-up agency nabbed only 421,000 undocumented immigrants, including 127,000 in Arizona.
The Border Patrol, at least on paper, is well aware of the fragile, wild landscape in which it works. Nearly the entire border in Arizona is public land, including several wildlife refuges and a national forest. There are also conservation areas on the Mexican side, and together with private refuges managed by groups like The Nature Conservancy, they help create a rich tapestry of wildlife habitat. The Border Patrol likes to point out that its security measures have reduced the environmental impacts of illegal border-crossers by discouraging that traffic. "We do our best to take environmental considerations into account," says a Tucson Border Patrol agent who works with federal land managers. He notes that the Border Patrol trains agents to be light on the land, and holds occasional meetings with land managers and environmentalists to talk about how things are working out. "But our main interest is national security," says the agent, who prefers not to be named. (The Border Patrol has become so reluctant to release information that a columnist for Tucson's leading newspaper, the Arizona Daily Star, recently called it "the most opaque department in the federal government.")
"The Border Patrol is not evil," says McManus. "They agree to talks with us. But I've done a lot of work in other nations, and the kinds of meetings we have now with federal officials (along the border) are reminiscent of the Third World" – the government holds all the power and environmentalists are forced to beg for small concessions. In a typical example, representatives of the Border Patrol, the federal conservation areas, and environmentalists including Bear and McManus held an "Intergovernmental Executive Committee" meeting in Tucson in January 2013. The Border Patrol agreed to tell its agents: "Minimize off-road driving. ... Learn the proper technique for turning around on a one-lane road: back up and off the road, stopping just before the front wheels leave the roadway, and then proceed in the new direction. Doing it the other way – driving off the road with your front wheels, then backing onto the road to switch directions, leaves a sizable gouge when you crank the steering wheel while not moving. It's easy to switch methods, and it makes a big difference."
But there's no way to enforce such promises. Under the terms of the 2006 Memorandum of Understanding, for instance, Border Patrol agents who drive off-road in wilderness areas are supposed to file "incursion reports," but reports are filed in fewer than 40 percent of the cases, says Lee Baiza, superintendent of Organ Pipe Cactus National Monument from 2007 to April 2013, when he retired. That means most of what happens is not documented. Baiza also believes that the Border Patrol tends to over-respond to events in the backcountry, citing a case in which more than a half-dozen agents in different vehicles converged on a burned, abandoned car in the desert, when one or two would've sufficed. Moreover, the agents drive on "administrative" dirt roads in the monument that the public is not allowed to use; in the era before the increased border security, those roads were driven only a few times per year by monument staffers, but now the Border Patrol has turned them into "major roads," Baiza says. And the agents' vehicles often tow "drags" – chained-together tires that scrape away old tracks on the dirt roads so that new crossers will leave more obvious traces – in the process deepening and widening the roads.
Many of the Border Patrol agents hired during the 2000s buildup came from distant cities and rural regions very unlike the Arizona desert, so they had no idea that the environment here is so fragile. Now that the workforce is more stable and rooted here, "we're a lot better about area knowledge," says the agent who works with the land managers. But as Charles Van Riper, a Tucson-based research ecologist emeritus for U.S. Geological Survey (a Department of Interior science agency), notes, many of the recent hires are "young, ex-military – they just came back from tours in Iraq and Afghanistan, they're used to driving Humvees across the desert."
Vehicle tires leave lasting scars wherever anyone cuts across this desert, breaking soil crusts that were formed over hundreds, thousands, or even a million years. "The soil turns to talc when you drive over it," says Todd Esque, another USGS ecologist who tested soil impacts in northwest Organ Pipe Cactus Monument. Driving an ATV or truck just once across that soil has more impact than 50 hikers, Esque says, creating localized "Dust Bowl" conditions. And once a single driver cuts across the desert, as Van Riper observes, "a road starts, it doesn't end. More and more drivers use it."
Few meaningful studies of the impacts have been done. U.S. Customs and Border Protection, an umbrella agency that includes the Border Patrol, has attempted to evaluate and minimize the impacts of some specific projects, such as the construction of "forward operating bases" – but those projects are relatively small. Customs and Border Protection has also assessed the impacts of border walls and fences, but the resulting reports are so generalized and upbeat, environmentalists generally dismiss them as propaganda.
Scientists and other observers have reported a tremendous surge in impacts, though. In Organ Pipe Cactus National Monument, where barriers were installed on the border from 2006 to 2008 to deter illegal vehicles, aerial surveys showed that off-road driving doubled in 2009, and then more than tripled from 2009 to 2010; roughly 2,500 miles of off-road tracks were documented in 2010 in the monument alone. In the Cabeza Prieta Wildlife Refuge, according to an estimate published last year by The Wildlife Society, a national group of biologists, illegal border-crossers created nearly 8,000 miles of off-road tracks; the Border Patrol outdid them, creating up to 12,000 miles of additional tracks. The Border Patrol explains that it's simply doing its job: pursuing people who are walking across the desert, or driving to overlooks, or simply "cutting sign" – driving cross-country in search of footprints.
Scientists support what Ladd and Odle say about the toll on wildlife. The habitat near the border consists mainly of island-like mountain ranges and riparian areas separated by tracts of inhospitable desert. As biologist Aaron Flesch told the University of Arizona news service in 2010, "Animals need to move among these small patches of available habitat." But the wildlife corridors tend to run north-south, across the border, so the security measures sever them. That's why The Wildlife Society is pushing Congress to restore environmental laws along the border, and change the infrastructure for the sake of wildlife. The group says the barriers impede the "cross-border movements" of dozens of species, including jaguar, ocelot, jaguarundi, Mexican gray wolves, Sonoran pronghorn, bighorn sheep, kit fox, prairie dogs, and even cactus ferruginous pygmy owls, which mostly fly within 12 feet of the ground – lower than the tops of many of the fences and walls.
A constantly patrolled four-lane dirt road right next to the barriers on the border increases the impacts. Wildlife is "repelled" by all of the infrastructure, says Van Riper. In one incident documented by a Border Patrol agent's snapshots, a female mountain lion in the Buenos Aires National Wildlife Refuge ran back and forth along a pedestrian barrier on the border, snarling and screaming frantically; apparently her cub had squeezed through, but the barrier prevented the mother from following. Even the more porous vehicle barriers cause an "insidious alteration of wildlife behavior, dramatically altering home range and movements," Van Riper says, because many species avoid any disturbed areas.
The security measures also interfere with the movement of the desert's most crucial resource: water. When rain falls here, much of it flows over the top of the soil in "sheet runoff," which is important for native vegetation; even deep-rooted mesquite trees can be killed by vehicle tracks that divert and capture sheet runoff, Van Riper says. And where the tight pedestrian barriers on the border cut across desert washes, they block and divert the natural runoff's concentration.
Those higher up the chain of command in D.C. "don't understand what's going on," Van Riper adds. "We know a lot about the number of immigrants and drug busts, but not about the changes to the environment as a consequence of border security measures – it's so low on everybody's priority list." He received funding from the Department of Defense several years ago to develop a general protocol for monitoring the impacts, but then couldn't get funding for actual studies. The Department of Defense is so worried that environmental concerns might interfere with security measures, "they think any research will be bad for them."