US conservationists oppose Gang of 8's push for more lawless border militarization

Gang of 8 plan bad for communities, parks, private property & wildlife.

April 23, 2013

The Honorable Patrick J. Leahy, Chairman
The Honorable Charles E. Grassley, Ranking Member
United States Senate, Committee on the Judiciary
152 Dirksen Senate Office Building
Washington DC 20510

Dear Chairman Leahy and Ranking Member Grassley:

We are writing to express our strong objections to certain border security provisions contained in
S. 744, “The Border Security, Economic Opportunity, and Immigration Modernization Act” that
eliminate the rule of law, elevate fencing over other security measures, and institute unnecessary
provisions. Our environmental and conservation organizations would like to work to improve
the bill with all Senators who share our concerns about eliminating the rule of law and the
significant impacts that can result from that and other measures that will damage National
Wildlife Refuges, National Parks, other public lands, communities, private property, and
wildlife.

Our concerns relate to: 1) the restatement and broadening of the provision allowing the Secretary
of the Department of Homeland Security (DHS) to waive all laws for construction of roads,
barriers and other physical tactical infrastructure; 2) the Southern Border Fencing Strategy; 3)
the unnecessary provisions for Border Patrol access to public lands (which they already have);
and 4) the waiver of the National Environmental Policy Act (NEPA) for rules promulgated to
implement Title II of the bill. We explain our concerns below.

Waiver of Laws

The 2005 REAL ID Act authorized the Secretary of Homeland Security to waive all legal
requirements that the Secretary determined necessary to ensure expeditious construction of
barriers and roads. The Congressional Research Service characterized this provision as
providing for the largest waiver of law in American history. Secretary Michael Chertoff invoked
the waiver five times for construction of hundreds of miles of border fencing and roads, and it is
still actively being used for additional projects (for example, construction of a road through a
national forest in southern Arizona). The waivers currently in place cover not only all federal
and related state and local health and environmental laws, but also all laws protecting historic
sites, archaeological findings, the Administrative Procedures Act and the Religious Freedom Act.
Implementation of these waivers has done great harm to communities, private property and our
public lands. Typical judicial review afforded to parties aggrieved by federal government
actions has also been eliminated.

Rather than repealing or narrowing the authority granted in 2005, this legislation actually
broadens it to encompass “other physical tactical infrastructure”. Among other things, this
would include the forward operating bases authorized in the bill. A number of forward operating
bases have already been constructed at or near the southern border without invoking the waiver.
There has been no litigation regarding forward operating bases or other infrastructure not
covered under the present waivers or, for that matter, directed at operations at or within 100
miles of the border since 2008.

There has, however, been real physical damage done to towns, public lands, private property,
and roads used for law enforcement purposes as the result of flooding caused in part by walls
that were constructed hastily without adequate regard for human safety and in contradiction with
readily available hydrological and meteorological data. Because of the current waivers, the
construction of these fences did not go through typical interagency and public review. The
waiver has also resulted in damage to public lands and to America’s wildlife. The waiver is a
hindrance, not a help, to the enforcement of the nation’s laws and to the security of the U.S.
citizens who rely on those laws for protection. This elimination of law will bring significant
harm to the people, wildlife, water and lands of the Southwest, and its economy.

Southern Border Fencing Strategy

The bill requires the Secretary of DHS to develop a “Southern Border Fencing Strategy” to
identify where fencing, infrastructure, and technology should be deployed along the Southern
border. The language, of course, should read “additional fencing, infrastructure and technology”
since over 650 miles of fencing has already been constructed, along with a considerable amount
of other infrastructure including many surveillance towers, sensors, lighting, and forward
operating bases.

Our organizations oppose the construction of additional walls at the border. The walls
constructed to date have resulted in serious environmental and economic impacts due to massive
flooding, debris, and associated changes in hydrology. Indeed, in some places, the wall – built at
a cost of millions of dollars per mile- has fallen down because of such problems. Private
property, commercial businesses, roads and public lands have been damaged, and critical
wildlife migration pathways have been severed. Further, there has been no evidence shown in
reports by the General Accountability Office or other organizations that the wall has made a
significant contribution to border security. Requiring a separate border fencing strategy elevates
one approach over all other approaches and, at that, the approach that causes the most damage
and is probably the least effective tool available for border security.

Access to Public Lands

Section 1105(b) directs the Secretaries of the Departments Agriculture and Interior to provide to
U.S. Customs and Border Patrol immediate access to Federal lands within 100 miles of the
border in Arizona for routine motorized patrols and the deployment of communications,
surveillance and detection equipment. This is an unnecessary provision. There are already
several forward operating bases and numerous surveillance, communication, and emergency
assistance towers on public lands within 100 miles of the border. The 2006 interagency
agreement between the Department of Homeland Security, the Department of Agriculture and
the Department of the Interior clearly anticipates the needs of Border Patrol to enter into all
areas, including wilderness areas and wilderness study areas. Should anyone doubt that the
Border Patrol has access to these areas, there is a government report documenting thousands of
miles of off-road travel, primarily by Border Patrol agents, in the Cabeza Prieta National
Wildlife Refuge Wilderness.

Waiver from the National Environmental Policy Act

Title II provides opportunities for legal status for undocumented persons currently in the U.S.
who meet certain qualifications to obtain registered provisional legal status. It also addresses
particular categories of people (DREAMERS, those who serve in the military, etc.) and it also
includes a provision for long-term legal residents of the Commonwealth of the Northern Mariana
Islands. Section 2110(e) of the Title dealing with rulemaking to implement this Title exempts,
“Any decision by the Secretary concerning any rulemaking action, plan, or program described in
this section” from NEPA. This is another unnecessary provision; the types of activities covered
under Title II generally do not have environmental impacts and would be covered by categorical
exclusions under the Department of Homeland Security’s Directive 023-01.

In summary, the current version of the bill contains provisions that are damaging to America’s
public lands and the environment and are also unnecessary. The authority to waive “all laws” is
particularly egregious. In defending our country’s territorial integrity, we need not eliminate one
of the pillars of this country’s character – that we are a nation of laws. No agency should be
encouraged to operate outside of the law, especially law enforcement agencies. We look forward
to working with like-minded decision-makers to improve this bill to better provide for a border
security framework within our system of laws.

Sincerely,

Mary Beth Beetham
Director of Legislative Affairs
Defenders of Wildlife
Tiernan Sittenfeld
Senior Vice President, Government Affairs
League of Conservation Voters 
Daniel R. Patterson
Ecologist & Southwest Director
Public Employees for Environmental Responsibility
Bill Snape
Senior Counsel
Center for Biological Diversity
David Alberswerth
Senior Policy Advisor
The Wilderness Society 
Kevin Proescholdt
Conservation Director
Wilderness Watch
Debbie Sease
National Campaign Director
Sierra Club
Kristen Brengel
Director, Legislative and Government Affairs
National Parks Conservation Association
Brian Moore
Legislative Director
Audubon 
Tara Thornton
Program Director
Endangered Species Coalition 
Melanie Emerson
Executive Director
Sky Island Alliance
Chloe Schwabe
Advocacy Associate
Columban Center for Advocacy and Outreach
Kevin Bixby
Executive Director
Southwest Environmental Center
Rev. John Fanestil
Convener
Friends of Friendship Park (San Diego) 
Monica Weisberg-Stewart
Chair of Immigration and Border Security
Committee Texas Border Coalition 
Les Corey
Executive Director
Arizona Wilderness Coalition 
Krista Schlyer
Associate Fellow
International League of Conservation Photographers

CC: Members of the Senate Judiciary Committee