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Environmental laws put gaps in Mexico border security

- The Washington Times - Monday, November 16, 2009

In the battle on the U.S.-Mexico border, the fight against illegal immigration often loses out to environmental laws that have blocked construction of parts of the "virtual fence" and that threaten to create places where agents can't easily track illegal immigrants.

Documents obtained by Rep. Rob Bishop and shared with The Washington Times show National Park Service staffers have tried to stop the U.S. Border Patrol from placing some towers associated with the virtual fence, known as the Secure Border Initiative or SBInet, on wilderness lands in parks along the border.

In a remarkably candid letter to members of Congress, Homeland Security Secretary Janet Napolitano said her department could have to delay pursuits of illegal immigrants while waiting for horses to be brought in so agents don't trample protected lands, and warns that illegal immigrants will increasingly make use of remote, protected areas to avoid being caught.

The documents also show the Interior Department has charged the Homeland Security Department $10 million over the past two years as a "mitigation" penalty to pay for damage to public lands that agencies say has been caused by Border Patrol agents chasing illegal immigrants.

"I want this resolved so border security has the precedence down there. If wilderness designation gets in the way of a secure southern border, I want the designation changed," said Mr. Bishop, Utah Republican, who requested the documents. "If it means you lose a couple of acres of wilderness, I don't think God will blame us at the judgment bar for doing that."

The conflict between the environment and border security has raged for the past decade as better enforcement in urban areas has pushed the flow of illegal immigrants into Arizona and straight into some of the nation's most remote and fragile desert.

A major problem is wilderness - lands deemed so pristine that they should be maintained in that condition, free of man-made structures.

Wilderness is governed under a 1964 law that imposed strict rules that tie Border Patrol agents' hands, and there is a lot of that land along the border. According to the Congressional Research Service, California has 1.8 million acres of wilderness within 100 miles of the border, and Arizona has 2.5 million acres. New Mexico and Texas have smaller plots.

According to e-mails obtained by Mr. Bishop, Park Service officials at Organ Pipe Cactus National Monument and at the Denver office that oversees the park said they will not allow the Border Patrol to place electronic surveillance towers on parts of the park that are designated wilderness.

In one 2008 e-mail, officials tell the Homeland Security Department to "pursue alternative tower locations." In another 2008 memo, the superintendent of Organ Pipe says Park Service officials could reject towers even beyond wilderness areas if they deem the effects would spill over into wilderness.

Organ Pipe has 32 miles of the U.S.-Mexico border on its land, and 95 percent of the park is designated wilderness. Officials have shut down much of the western side of the giant park, saying the threat of encounters with illegal immigrants and drug smugglers makes that land not safe enough for visitors.

Homeland Security considers SBInet critical to gaining control of the border. The concept is to mix manpower, technology and infrastructure to form the "virtual fence" that government planners say can curtail illegal immigration and drug smuggling.

The project is way behind its original schedule, having slipped from a 2009 deadline all the way back to 2016. The Government Accountability Office, in a report released in September, blamed both testing flaws and environmental rules for holding up the system.

A spokesman for the National Park Service Denver office, which oversees Arizona, didn't return calls for comment.

But Jane Lyder, deputy assistant secretary for Fish and Wildlife and Parks at the Interior Department, said her agency tries to cooperate, though its mission does conflict with that of the Homeland Security Department.

"A proposal to build permanent structures within a wilderness area violates the Wilderness Act. The Park Service and DOI worked with Border Patrol to find places with Organ Pipe National Monument that were not part of the designated wilderness, where the towers could be placed," she said.

She said acceptable alternate locations have been found.

A draft environmental assessment of the new sites released in September lists conditions ranging from common sense - such as designing roads that limit the impact on lesser long-nosed bats and Sonoran pronghorn, both endangered species - to the more unusual.

Towers cannot be constructed if Sonoran pronghorn are within two miles of the site, and the pronghorn's departure cannot be hastened by human interaction. Also, feed for patrol horses must be weed-free to prevent the horses from spreading nonnative seeds in their excrement.

Ms. Lyder also said she has found the Border Patrol willing to work with Interior on protecting endangered species, and said land managers recognize that the Border Patrol's mission also benefits public lands.

She said a 2006 memorandum of understanding specifically allows Border Patrol to go off-road, even in wilderness, in emergency cases that involve a threat to national security or to someone's safety.

After some initial friction, the Homeland Security and Interior departments did find agreement on the physical border fence, much of which stretches across public lands in Arizona. A letter from U.S. Customs and Border Protection's acting commissioner earlier this year praises Interior for working with border security officials to get the fencing done.

Still, Ms. Napolitano's letter to Congress, which was sent last month in answer to a series of questions, indicates that problems persist.

She said Border Patrol makes every effort to live up to the 2006 memorandum but that "it may be inadvisable for officer safety to wait for the arrival of horses for pursuit purposes, or to attempt to apprehend smuggling vehicles within wilderness with a less capable form of transportation."

She also said some public-lands managers are using a section of the Endangered Species Act to demand information about Border Patrol activities, which Ms. Napolitano said "risks jeopardizing sensitive operational information."

Ms. Napolitano also said that cracking down on illegal immigration actually helps the environment since the flow of millions of illegal crossers over the past decade has ruined some once-pristine lands with piles of trash, vehicle tracks and contaminated water.

Asked about the letter, Homeland Security spokesman Matt Chandler said the department wants to work with the Interior Department and the U.S. Forest Service, which is part of the Agriculture Department.

"We acknowledge that balancing the requirements of border enforcement and land preservation can at times present challenges, but we are committed to collaboration with Interior and the USFS to find workable solutions on special status," he said. "[Homeland Security's] close working relationship with Interior and USFS allows DHS to fulfill its enforcement responsibilities while respecting and enhancing the environment."

Mr. Bishop and Sen. Tom Coburn, Oklahoma Republican, tried to free up the Border Patrol earlier this year, with each managing to pass amendments on different bills that gave the Border Patrol more leeway to circumvent environmental rules if border security required it.

The Senate passed its amendment by unanimous consent as part of a spending bill, while the House voted 259-167 to add it to a lands bill. But House and Senate Democratic negotiators watered down Mr. Coburn's amendment when they met to hammer out a final version of the spending bill.

According to a Congressional Research Service report, the new wording means that environmental laws can't block construction of the pedestrian fence on the border but still can block other activities, including regular Border Patrol operations and building the virtual fence of electronic surveillance.

"What we have done in this bill is prioritize the environment over the violation of our borders," Mr. Coburn said in opposing the bill when it came through the Senate.

But Democrats defended the move on the House floor, saying the environmental laws must be obeyed.

"We were concerned that if it weren't focused on the fence area, it could overturn the Archaeological Resources Protection Act, the Native American Graves Repatriation Act, the American Indian Religious Freedom Act, the Endangered Species Act, NEPA and many other laws," said Rep. Norm Dicks, Washington Democrat. "We tried to focus this like a rifle shot."

Mr. Bishop says he has had trouble getting accurate responses to his requests. For example, he asked Interior for the total amount of money the department had received from Homeland Security for mitigation of the effects of border enforcement, such as raking out roads or replanting plants.

Interior provided him with one figure - $811,000 since 2006, which it said had gone specifically to rehabilitate territory for the endangered Sonoran pronghorn. But Homeland Security says it has paid out $9,823,813 since September 2007 alone, including $200,000 over the course of 16 months to have a single Interior Department employee on site to provide "subject matter expertise."

"The taxpayer is getting ripped off, that's pretty clear," Mr. Bishop said.

Ms. Lyder said the majority of the money went to a system being built to help the Border Patrol evaluate what threatened and endangered species might be affected by proposed actions.

As for specific mitigation money, such as the $811,000 paid to the Fish and Wildlife Service for the pronghorn, she said that was normal.

"It would not be unusual for Border Patrol to provide FWS with funding to mitigate its effects on an endangered species, such as the pronghorn, particularly if their activities would be such that the habitat disturbed is no longer suitable, and replacement habitat had to be acquired," she said.

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