Proposed federal laws dealing with jurisdiction on federal land near the nation’s borders that has raised ire on both sides of the issue in Montana is getting increased attention in Washington.
Federal agents trying to patrol the U. S.-Mexico border say they're hampered by laws that keep them from driving vehicles on huge swaths of land because it falls under U. S. environmental protection, leaving it to wildlife — and illegal immigrants and smugglers who can walk through the territory undisturbed.
A growing number of lawmakers are saying such restrictions have turned wilderness areas into highways for criminals. In recent weeks, three congressional panels, including two in the GOP-controlled House and one in the Democratic-controlled Senate, have moved to give the Border Patrol unfettered access to all federally managed lands within 100 miles of the Mexican border.
Two of the panels expanded the legislation's reach to include the Canadian border.
U. S. Rep. Denny Rehberg, R-Mont., has cosponsored one of the bills, House Resolution 1505, gaining both praise and criticism in the state.
The bill would prohibit federal agencies from taking any action to “impede, prohibit, or restrict activities of the Secretary of Homeland Security” on federal land or to restrict access by Homeland Security agents to the land.
It also waives more than 30 laws in regard to actions of Homeland Security agents, ranging from the National Environmental Policy Act and the Endangered Species Act to the Safe Drinking Water Act and the Noise Control Act.
The bill specifies that it applies to all federal land within 100 miles of a U. S. border, which would include all of Glacier National Park and much of the Upper Missouri River Breaks Monument, and potentially Indian reservations.
Opponents say the bill gives too much authority to the U. S. Department of Homeland Security, rather than trying to get federal agencies to cooperate, while supporters say it prevents a “turf war” where some agencies hinder Homeland Security in its goal to secure the nation’s borders.
Blaine County Commissioner Vic Miller, a Democrat, wrote a widely published column blasting the bill, calling it a “federal land grab. ”
U. S. Sen. Jon Tester, D-Mont., who Rehberg is challenging in the 2012 election, also criticized the bill, comparing it to turning the country into a police state.
But retired U. S. Border Patrol Agent Ted Denning wrote a column saying the “common-sense bill, ” which has been endorsed by the National Border Patrol Council, would eliminate agencies like the U. S. Bureau of Land Management, U.S. Forest Service and National Park Service restricting — or even charging Homeland Security for — access to federal land on the borders.
Battle brewing in Congress
The votes signal a brewing battle in Congress that will determine whether border agents can disregard environmental protections as they do their job.
Dozens of environmental laws were waived for the building of the border fence, and activists say this is just another conservative attempt to find an excuse to do away with environmental protections.
But agents who have worked along the border say the laws crimp their power to secure the border.
Rehberg told the Havre Daily News Thursday that the “dangerous turf war being waged between various federal government agencies … is threatening America’s national security. ”
H. R. 1505 does nothing more than give the Border Patrol the same access to federal land that it already has on state and private land, he said, and does nothing to give it any new or additional authority over private citizens.
“Montanans know I'm committed to making sure families are protected from terrorism, crime and the harmful impacts of illegal immigration, ” Rehberg said. “They also know I'm committed to the protection of their private property rights and public access to federal lands. There is nothing in this bill that pits those against each other. ”
“Bureaucratic turf wars should never be allowed to put Montanans at risk, ” he added.
Montana’s other — Democratic — federal lawmakers take a different view.
Tester said the bill would give Homeland Security control of all federal land within 100 miles of the border, with no restrictions or public input.
“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, ” he said this morning. “This is a whole lot worse than just granting agents access to certain federal lands. It gives one federal department the ability to make top-down decisions about our land with no public input. In other words, a land grab. ”
Aaron Murphy, Tester’s spokesman, said this morning that the bill would give Homeland Security much more than just access to the land.
“If (Homeland Security) wanted to stop sales on Forest Service land or challenge tribal sovereignty or build watchtowers in Glacier Park or build roads across the Bob Marshall, this bill allows it, ” he said.
He said Tester has worked to improve security on the border, including upgrading ports of entry and improving communications between agencies and pushing for upgrading technology on the border.
But, Murphy said, H.R. 505 “has very little to do with border security and everything to do with allowing the government trampling on rights, nullifying existing laws and ignoring public accountability in order to meet its own definition of homeland security — with no public input”
“Like most Montanans, Jon strongly opposes this land-grab bill because it’s like the Patriot Act and REAL ID, giving one government agency way too much power in the name of homeland security, ” Murphy added.
Montana’s senior U. S. Sen. Max Baucus, D-Mont. said he supports increasing security — he has worked to increase security on the northern border, including holding hearings in the Senate, listening sessions in the state, and touring the region with Homeland Security Secretary Janet Napolitano, and has helped increase the number of Border Patrol agents securing the northern border — but H. R. 1505 is not the answer.
“We've seen before with the REAL ID Act that federal overreach doesn't fly in Montana, ” Baucus said morning. “This bill is a land grab that could lock out Montanans, and we need a common-sense approach that encourages all federal agencies to work together to strengthen border security without trampling on Montana's right to access our public land. ”
Protecting the border, or an excuse to gut environmental laws?
Zack Taylor, a retired Border Patrol agent who lives about 9 miles from the Arizona-Mexico border, said smugglers soon learn the areas that agents are least likely to frequent.
"The (smuggling) route stays on public lands from the border to Maricopa County," Taylor said, referring to the state's most populous county. "The smugglers have free rein. It has become a lawless area."
Environmental groups said lawmakers lining up to support the legislation have routinely opposed the Endangered Species Act, the Safe Drinking Water Act and dozens of other laws, and they accused the lawmakers of using illegal immigration as the latest excuse to gut protections.
"For every problem that's out there in society, there's some extremists in Congress who say the solution is, 'Well, let's roll back the environmental laws, let's open up the public lands,'" said Paul Spitler, spokesman for the Wilderness Society. "It doesn't comport to reality, but it fits their mindset that it's simply the environmental regulations that are holding back America."
Restricting access to protect the environment
Nearly 40 percent of the land on the U. S.-Mexico border and about a quarter of the land on the U. S.-Canadian border is public land, including Big Bend National Park in Texas and Glacier National Park in Montana. Driving is prohibited on those parts of the land that are designated wilderness areas.
Wildlife officials say vehicle use can be particularly hazardous in the desert. Water gathers in the tire tracks instead of in natural pools and evaporates more quickly, leading to less vegetation and less available food. Some areas, such as Big Bend and the desert farther west, are deadly to traverse in certain months and immigrants and smugglers avoid them.
The wilderness areas also have other restrictions on development. Border patrol agents, for example, must get permission from other federal agencies before maintaining roads and installing surveillance equipment. Federal auditors found it can take months to get that permission.
"What the Border Patrol says they really need down there is not necessarily more manpower or money," said Rep. Rob Bishop, R-Utah, whose bill easing the restrictions passed the House Natural Resources Committee along party lines. "They need more east-west access on those public lands."
Sen. John McCain, R-Ariz., sponsored an amendment that requires the Agriculture and Interior departments to give Border Patrol personnel immediate access to federal lands on the southern border for security activities, including for routine motorized patrols. The amendment passed a Senate committee with the support of five Democrats and eight Republicans.
McCain told colleagues that up to 100 people sit on mountaintops near the border serving as lookouts for smugglers, suggesting that improved law enforcement access on those mountains would deter the lookouts.
"What he says is absolutely true," said Democratic Sen. Mary Landrieu of Louisiana, who visited Arizona with McCain. "For the life of me, I can't understand the hesitancy on the part of Interior or Agriculture to provide access to border security guards."
Rep. Ben Quayle, R-Ariz., sponsored a similar amendment that extends the law to the Canadian border as well, and it passed by a voice vote, which is usually reserved for noncontroversial legislation.
Conflicting comments on environmental laws
During a House subcommittee hearing in April, Ron Vitiello, deputy chief of the U. S. Customs and Border Patrol, said he had "no complaints" about environmental laws.
But George McCubbin, president of the National Border Patrol Council union that represents about 17,000 Border Patrol agents and support staff, likened current policy to telling city police officers they can't patrol a particular neighborhood.
"If they want to get serious about this problem on the border, they can't be restricting areas we go in," said McCubbin, who works in Casa Grande, Ariz. "Don't let us there and you have nothing but the bad element going through that area."
The Government Accountability Office, Congress' investigative arm, reported that supervisors at 17 of 26 Border Patrol stations along the Mexican border said access to federal lands had been limited because of environmental restrictions. Yet, the vast majority of the agents in charge also said that they were generally able to adjust their patrols without sacrificing effectiveness.
Democratic lawmakers and environmental groups cite the GAO's findings in arguing against giving the Border Patrol authority to operate as it sees fit on federal lands.
"The record is clear. The problem this bill claims to be solving does not exist," said Rep. Raul Grijalva, D-Ariz. "So, if this is not about border security, what is it about? It's about undermining fundamental environmental protections for millions of Americans."
Bishop said federal agents would be better stewards of sensitive lands than illegal immigrants and smugglers.
"What is so ironic is that the environmental degradation is not being done by the Border Patrol," Bishop said. "It's being done by the illegals who are coming across."
House Resolution 1505 requires that:
“The Secretary of the Interior or the Secretary of Agriculture shall not impede, prohibit, or restrict activities of the Secretary of Homeland Security” on federal land administered by those agencies;
“The Secretary of Homeland Security shall have immediate access to any (federal land) for purposes of conducting activities that assist in securing the border … including access to maintain and construct roads, construct a fence, use vehicles to patrol, and set up monitoring equipment; ”
Laws are waived for the actions of agents of Homeland Security including:
• the National Environmental Policy Act, the Endangered Species Act,
• the National Historic Preservation Act, the Safe Drinking Water Act,
• the Noise Control Act,
• the Antiquities Act which is used to create national monuments,
• the Wild and Scenic Rivers Act, the Farmland Protection Policy Act,
• the Wilderness Act, and
• the National Wildlife Refuge System Administration Act.