[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
THE COSTS OF DENYING BORDER
PATROL ACCESS: OUR ENVIRONMENT AND SECURITY
=======================================================================
OVERSIGHT HEARING
BEFORE THE
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
OF THE
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
Thursday, February 15, 2018
__________
Serial No. 115-36
__________
Printed for the use of the Committee on Natural Resources
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Available via the World Wide Web: http://www.govinfo.gov
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Committee address: http://naturalresources.house.gov
__________
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COMMITTEE ON NATURAL RESOURCES
ROB BISHOP, UT, Chairman
RAUL M. GRIJALVA, AZ, Ranking Democratic Member
Don Young, AK Grace F. Napolitano, CA
Chairman Emeritus Madeleine Z. Bordallo, GU
Louie Gohmert, TX Jim Costa, CA
Vice Chairman Gregorio Kilili Camacho Sablan,
Doug Lamborn, CO CNMI
Robert J. Wittman, VA Niki Tsongas, MA
Tom McClintock, CA Jared Huffman, CA
Stevan Pearce, NM Vice Ranking Member
Glenn Thompson, PA Alan S. Lowenthal, CA
Paul A. Gosar, AZ Donald S. Beyer, Jr., VA
Raul R. Labrador, ID Norma J. Torres, CA
Scott R. Tipton, CO Ruben Gallego, AZ
Doug LaMalfa, CA Colleen Hanabusa, HI
Jeff Denham, CA Nanette Diaz Barragan, CA
Paul Cook, CA Darren Soto, FL
Bruce Westerman, AR A. Donald McEachin, VA
Garret Graves, LA Anthony G. Brown, MD
Jody B. Hice, GA Wm. Lacy Clay, MO
Aumua Amata Coleman Radewagen, AS Jimmy Gomez, CA
Daniel Webster, FL
Jack Bergman, MI
Liz Cheney, WY
Mike Johnson, LA
Jenniffer Gonzalez-Colon, PR
Greg Gianforte, MT
John R. Curtis, UT
Cody Stewart, Chief of Staff
Lisa Pittman, Chief Counsel
David Watkins, Democratic Staff Director
------
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
BRUCE WESTERMAN, AR, Chairman
A. DONALD McEACHIN, VA, Ranking Democratic Member
Louie Gohmert, TX Ruben Gallego, AZ
Raul R. Labrador, ID Jared Huffman, CA
Aumua Amata Coleman Radewagen, AS Darren Soto, FL
Mike Johnson, LA Wm. Lacy Clay, MO
Vice Chairman Raul M. Grijalva, AZ, ex officio
Jenniffer Gonzalez-Colon, PR
Rob Bishop, UT, ex officio
-----------
CONTENTS
----------
Page
Hearing held on Thursday, February 15, 2018...................... 1
Statement of Members:
Grijalva, Hon. Raul M., a Representative in Congress from the
State of Arizona........................................... 8
Prepared statement of.................................... 10
Johnson, Hon. Mike, a Representative in Congress from the
State of Louisiana......................................... 6
Prepared statement of.................................... 8
McEachin, Hon. A. Donald, a Representative in Congress from
the Commonwealth of Virginia............................... 4
Prepared statement of.................................... 6
Westerman, Hon. Bruce, a Representative in Congress from the
State of Arkansas.......................................... 1
Prepared statement of.................................... 3
Statement of Witnesses:
Arthur, Hon. Andrew R., Resident Fellow in Law and Policy,
Center for Immigration Studies, Washington, DC............. 11
Prepared statement of.................................... 12
Bell, Dan, President, ZZ Cattle Corporation, Nogales, Arizona 34
Prepared statement of.................................... 35
Judd, Brandon, President, National Border Patrol Council,
Tucson, Arizona............................................ 43
Prepared statement of.................................... 45
Questions submitted for the record....................... 47
Nicol, Scott, Co-Chair, Sierra Club Borderlands Campaign, The
Sierra Club, McAllen, Texas................................ 39
Prepared statement of.................................... 40
Additional Materials Submitted for the Record:
List of documents submitted for the record retained in the
Committee's official files................................. 72
University of Arizona, Professor Kirk Emerson, February 14,
2018 Letter to Reps. Westerman and McEachin................ 72
OVERSIGHT HEARING ON THE COSTS OF DENYING BORDER PATROL ACCESS: OUR
ENVIRONMENT AND SECURITY
----------
Thursday, February 15, 2018
U.S. House of Representatives
Subcommittee on Oversight and Investigations
Committee on Natural Resources
Washington, DC
----------
The Subcommittee met, pursuant to call, at 10:00 a.m., in
room 1324, Longworth House Office Building, Hon. Bruce
Westerman [Chairman of the Subcommittee] presiding.
Present: Representatives Westerman, Gohmert, Labrador,
Radewagen, Bergman, Johnson, Bishop (ex officio), McEachin,
Gallego, Huffman, Soto, and Grijalva (ex officio).
Also Present: Representatives Lamborn, Gosar, Napolitano,
Beyer, Torres, Barragan, Gomez, and Vela.
Mr. Westerman. The Subcommittee on Oversight and
Investigations will come to order.
The Subcommittee is meeting today to hear testimony on the
costs of denying Border Patrol access: our environment and
security. I ask unanimous consent that the gentleman from
Arizona, Mr. Gosar; the gentleman from Colorado, Mr. Lamborn;
the gentlewoman from California, Mrs. Napolitano; the gentleman
from Virginia, Mr. Beyer; the gentlewoman from California, Mrs.
Torres; the gentlewoman from California, Ms. Barragan; the
gentleman from California, Mr. Gomez; and the gentleman from
Texas, Mr. Vela, be allowed to sit with the Committee and
participate in the hearing.
Without objection, so ordered.
Under Committee Rule 4(f), any oral opening statements at
hearings are limited to the Chairman, the Ranking Minority
Member, and the Vice Chair. This will allow us to hear from our
witnesses sooner and help Members keep to their schedules.
Therefore, I ask unanimous consent that all other Members'
opening statements be made part of the hearing record, if they
are submitted to the Subcommittee Clerk by 5 p.m. today.
Without objection, so ordered.
STATEMENT OF THE HON. BRUCE WESTERMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARKANSAS
Mr. Westerman. Seventy-five pounds of marijuana, almost
$8,000 of brown heroin, 5 illegal border crossers with unknown
intentions, and 11 more illegals who got away. In the course of
just one evening 2 weeks ago, that is what I witnessed along a
small portion of the Border Patrol's Tucson Sector.
Nationally, in the past few months alone, Border Patrol has
already apprehended more than 100,000 border violators, seized
over 200,000 pounds of marijuana, 113 pounds of heroin, and 196
pounds of the deadly opioid, fentanyl. These numbers do not
even account for the seizures of drugs at ports of entries. And
we should keep in mind that these statistics only represent
what we have caught. Border Patrol uses estimates, so God only
knows what we have really missed coming through our borders.
We are dealing with professional drug and human traffickers
who are organized, well-manned, and sophisticated. During an
aerial tour on my visit to the border, we spotted scout
locations hidden in the rocky mountain tops on the U.S. side of
the border. These difficult to detect spots are used by
criminals to monitor and communicate Border Patrol's every move
on the ground to guide smugglers away from our agents.
You see the display there. In one of these particular
areas, you can see in the circle there, is actually a solar
panel that was packed in that is used to charge cell phones and
radios so that these scouts can communicate.
[Slide.]
You can see from these photos that these scouts are
prepared to camp out for weeks or months. They have gotten so
advanced that they have even set up these solar panels. Aside
from the garbage that they leave behind, at least they are
being environmentally conscious by using alternative energy
sources.
Border security is a complex and daunting issue that
affects our lives and public safety. One thing, however, was
abundantly clear on my trip with Chairman Bishop to the border.
We need to ensure that we give our law enforcement agents
appropriate access to the Federal lands they patrol to keep us
safe.
Take, for example, the Tucson Sector's 262 miles of border,
86 percent of which is on Federal or tribal lands. Of the
approximate 1,900 miles on the southern border, about 35
percent is on Federal or tribal lands. With vast amounts of
Federal land, accompanied by an array of environmental laws,
our Border Patrol agents face statutory restraints in addition
to the physical challenges and dangers of their jobs.
Meanwhile, cross-border violators are not just comprised of
families and children, they are also human traffickers, drug
smugglers, and violent criminals. While our agents spend time
seeking and waiting for authorization from Federal land
managers to make sure environmental impacts are addressed,
criminals trample through environmentally sensitive areas
leaving tons of garbage and waste along their paths.
On Federal borderlands, it can take months or even years
for Border Patrol to receive approval to maintain roads or
install tactical infrastructure, such as communications relays,
video surveillance towers, and radars.
After securing approval from Federal land managers, Border
Patrol actions may be subject to the NEPA review process,
causing further delays in operational deployment. Securing
approval to build just a few miles of new roads on federally
owned borderland, something agents we spoke to identified as
particularly important in rugged, isolated terrain, can be a
multiple-year process. These authorization requirements and
permitting delays can have a crippling effect on border
security.
During our visit to the Arizona border, one agent explained
to us the tremendous bureaucratic delays Border Patrol can face
to remediate or fill illicit tunnels used for drug smuggling.
In one instance, we were told about a known tunnel left
unfilled for months because of the presence of a threatened or
endangered species. This is unacceptable, and I can guarantee
that the drug cartels using the tunnel did not care about the
welfare of that species.
Cartels and illegal immigrants don't wait for environmental
assessments, they don't participate in Section 7 ESA
consultations, and they don't follow Wilderness Act
restrictions. High volumes of illegal border crossings do cause
extensive environmental damage to our public lands by igniting
costly wildfires, sometimes as diversionary tactics, and
destroying species habitat.
In addition, safety concerns related to illegal
immigration, drug smuggling, and even the murder of a park
ranger have forced national monuments, forests, and wildlife
refuges on the border to close to the public for extended
periods of time. Denying public access betrays our promise to
present and future generations to use and enjoy these lands as
intended.
Cross-border violators take advantage of Border Patrol's
lack of operational flexibility on Federal lands. We need to
ensure that our environmental laws do not compromise Border
Patrol's ability to detect, identify, track, and respond to
cross-border violations.
This hearing gives us the opportunity to hear from people
who have grappled with the problems of illegal immigration and
an unsecured border. I look forward to their testimony and to
continuing this Committee's work toward a solution.
[The prepared statement of Mr. Westerman follows:]
Prepared Statement of the Hon. Bruce Westerman, Chairman, Subcommittee
on Oversight and Investigations
Seventy-five pounds of marijuana, almost $8,000 of brown heroin,
five illegal border crossers with unknown intentions, and 11 more
illegals who got away. In the course of just one evening 2 weeks ago,
that's what I witnessed along a small portion of the Border Patrol's
Tucson Sector.
Nationally, in the past few months alone, Border Patrol has already
apprehended more than 100,000 border violators, seized 200,909 pounds
of marijuana, 113 pounds of heroin, and 196 pounds of the deadly
opioid, fentanyl. These numbers do not even account for the seizures of
drugs at ports of entries.
And, we should keep in mind that these statistics only represent
what we've caught. Border Patrol uses estimates, so God only knows what
we've really missed coming through our borders.
We are dealing with professional drug and human traffickers who are
organized, well-manned, and sophisticated. During an aerial tour on my
visit to the border, we spotted scout locations hidden in the rocky
mountain tops on the U.S. side of the border. These difficult to detect
spots are used by criminals to monitor and communicate Border Patrol's
every move on the ground to guide smugglers away from our agents.
[Slide.]
You can see from the photos I took, these scouts are prepared to
camp out for weeks or months. They've gotten so advanced, they even set
up solar panels. Aside from the garbage they leave behind, at least
they're being environmentally conscious by using alternative energy
sources.
Border security is a complex and daunting issue that affects our
lives and public safety. One thing, however, was abundantly clear on my
trip with Chairman Bishop to the border--we need to ensure that we give
our law enforcement agents appropriate access to the Federals lands
they patrol to keep us safe.
Take for example, the Tucson Sector's 262 border miles, 86 percent
of which is on Federal or tribal lands. Of the approximate 1,900 miles
on the southern border, about 35 percent is on Federal or tribal lands.
With vast amounts of Federal land accompanied by an array of
environmental laws, our Border Patrol agents face statutory restraints
in addition to the physical challenges and dangers of their jobs.
Meanwhile, cross-border violators are not just comprised of
families and children. They are also human traffickers, drug smugglers,
and violent criminals. While our agents spend time seeking and waiting
for authorization from Federal land managers to make sure environmental
impacts are addressed, criminals trample through environmentally
sensitive areas leaving tons of garbage and waste along their paths.
On Federal borderlands, it can take months or even years for Border
Patrol to receive approval to maintain roads or install tactical
infrastructure, such as communications relays, video surveillance
towers, and radars.
After securing approval from Federal land managers, Border Patrol
actions may be subject to the NEPA review process, causing further
delays in operational deployment. Securing approval to build just a few
miles of new roads on federally owned borderland--something agents we
spoke to identified as particularly important in rugged, isolated
terrain--can be a multiple-year process. These authorization
requirements and permitting delays can have a crippling effect on
border security.
During our visit to the Arizona border, one agent explained to us
the tremendous bureaucratic delays Border Patrol can face to remediate,
or fill, illicit tunnels used for drug smuggling. In one instance, we
were told about a known tunnel left unfilled for months because of the
presence of a threatened or endangered species. This is unacceptable,
and I can guarantee that the drug cartel using that tunnel did not care
about the welfare of that species.
Cartels and illegal immigrants don't wait for Environmental
Assessments, they don't participate in Section 7 ESA consultations, and
they don't follow Wilderness Act restrictions. High volumes of illegal
border crossings do cause extensive environmental damage to our public
lands by igniting costly wildland fires--sometimes as diversionary
tactics--and destroying species habitat.
In addition, safety concerns related to illegal immigration, drug
smuggling, and even the murder of a park ranger, have forced national
monuments, forests, and wildlife refuges on the border to close to the
public for extended periods of time. Denying public access betrays our
promise to present and future generations to use and enjoy these lands
as intended.
Cross-border violators take advantage of Border Patrol's lack of
operational flexibility on Federal lands. We need to ensure that our
environmental laws do not compromise Border Patrol's ability to detect,
identify, track, and respond to cross-border violations.
This hearing gives us the opportunity to hear from people who have
grappled with the problems of illegal immigration and an unsecured
border. I look forward to their testimony and to continuing this
Committee's work toward a solution.
______
Mr. Westerman. The Chairman now recognizes the Ranking
Minority Member for any statement.
STATEMENT OF THE HON. A. DONALD McEACHIN, A REPRESENTATIVE IN
CONGRESS FROM THE COMMONWEALTH OF VIRGINIA
Mr. McEachin. Thank you, Mr. Chairman.
And thank you to each of our witnesses for taking time and
spending your own treasure to be with us here today. I also
want to thank Ranking Member Grijalva for taking the time to
join us and share his thoughts as someone who lives, and
represents people who live, near the border.
I am disappointed to see that, once again, no one from the
Administration was invited to be a witness today. This
Subcommittee is charged with conducting oversight over Federal
policies in our jurisdiction. It is beyond me to understand how
we can effectively do that if we continue to fail to invite the
entity responsible for carrying them out. Nevertheless, I am
pleased to have the opportunity to talk about environmental and
public safety issues along the border.
As has become a trademark of President Trump and
congressional Republicans, some of my colleagues want to blame
all of our problems on aspiring Americans. They will have you
believe that immigrants are criminals and gang members who are
not only dangerous, but now also apparently environmentally
reckless.
This rhetoric vilifies real human beings who, many times,
are risking their lives to reunite with their families or
escape violence from their countries. These are people seeking
a better life, not seeking to break the law.
When we finally stop blaming others, we can see that we
have put laws and systems in place that endanger the economy,
environment, and health of our border communities far more than
the discarded trash of a border crosser.
For those who are unaware, the Secretary of Homeland
Security already has sole authority to waive all laws and legal
requirements that potentially get in the way of building
fences, walls, and roads along the border. That means that any
law, including our bedrock environmental, public health, and
safety laws, can be totally ignored when it comes to building a
fence, or worse, the President's preposterous wall. If this
sounds like an over-reach of power, that is because it is. In
fact, it has been described as having greater reach than any
other waiver authority in statute. Some legal experts have even
deemed it unconstitutional.
Despite the backlash and opposition to the waiver, however,
the Secretary of Homeland Security has used it eight times,
three of which were in the last 6 months of the Trump
administration alone. Each time the Secretary has used the
waiver, a whole slew of environmental and public safety laws
have been tossed aside. The poster behind me names all 48 of
the laws that have been waived. These laws are American rights.
Rights to hold the government accountable. Rights to be
protected from toxic waste and unsafe drinking water. Rights
for tribes to protect their own burial grounds, to name a few.
When these laws are recklessly ignored, the people and
wildlife that live along the border suffer the most. Their
health and safety are put at risk in the name of a fence.
If that is not bad enough, Republicans have recently
introduced a bill that would expand the waiver further. This
bill would allow the Secretary to use the waiver for all
infrastructure and technology, not just building fences and
roads. This is unacceptable and, quite frankly, dangerous for
the communities and public lands along our borders.
Scapegoating the victims and building walls is simply not
the solution to our border security issues. This Committee owes
the American public a real conversation, not this sham.
I yield back the remainder of my time. Thank you, Mr.
Chairman.
[The prepared statement of Mr. McEachin follows:]
Prepared Statement of the Hon. A. Donald McEachin, Ranking Member,
Subcommittee on Oversight and Investigations
Thank you, Mr. Chairman. Thank you to each of our witnesses for
taking the time and expense to be here today. I also want to thank
Ranking Member Grijalva for taking the time to join us and share his
thoughts as someone who lives, and represents people who live, near the
border.
I am disappointed to see that, once again, no one from the
Administration was invited to be a witness today. This Subcommittee is
charged with conducting oversight over Federal policies in our
jurisdiction. I just do not understand how we can effectively do that
if we continue to fail to invite the entity responsible for carrying
them out. Nevertheless, I am pleased to have the opportunity to talk
about environmental and public safety issues along the border.
As has become a trademark of President Trump and congressional
Republicans, some of my colleagues want to blame all our problems on
aspiring Americans. They will have you believe that immigrants are
criminals and gang members who are not only dangerous, but who are now
also environmentally reckless, apparently.
I would like to think we can do better than blaming the victim.
This rhetoric vilifies real human beings who, many times, are risking
their lives to reunite with their families or escape the violence of
their countries. These are people seeking a better life, not seeking to
break the law.
When we finally stop blaming others, we can see that we have put
laws and systems in place that endanger the economy, environment, and
health of our border communities far more than the discarded trash of a
border crosser.
For those who are unaware, the Secretary of Homeland Security
already has sole authority to waive all laws and legal requirements
that potentially get in the way of building fences, walls, and roads
along the border. That means that any law--including our bedrock
environmental, public health, and safety laws--can be totally ignored
when it comes to building a fence, or worse, the President's
preposterous wall. If this sounds like an over-reach of power, that is
because it is. In fact, it has been described as having greater reach
than any other waiver authority in statute. Some legal experts have
even deemed it unconstitutional.
Despite the backlash and opposition to the waiver however, the
Secretary of Homeland Security has used it eight times, three of which
were in the last 6 months of the Trump administration alone. Each time
the Secretary has used the waiver, a whole slew of environmental and
public safety laws have been tossed aside. The poster behind me names
all 48 of the laws that have been waived. These laws are American
rights. Rights to hold the government accountable. Rights to be
protected from toxic waste and unsafe drinking water. Rights for tribes
to protect their own burial grounds, to name a few.
When these laws are recklessly ignored, the people and wildlife
that live along the border suffer the most. Their health and safety are
put at-risk in the name of a fence.
If that is not bad enough, Republicans have recently introduced a
bill that would expand the waiver further. This bill would allow the
Secretary to use the waiver for all infrastructure and technology, not
just building fences and roads. This is unacceptable and, quite
frankly, dangerous for the communities and public lands along our
border.
Scapegoating the victims and building walls is simply not the
solution to our border security issues. This Committee owes the
American public a real conversation, not this sham.
I yield back the remainder of my time.
______
Mr. Westerman. The gentleman yields back.
I now recognize the Vice Chairman of the Committee, Mr.
Johnson from Louisiana, for an opening statement.
STATEMENT OF THE HON. MIKE JOHNSON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF LOUISIANA
Mr. Johnson. Thank you, Mr. Chairman. I want to thank you
for holding this critical hearing to explore the challenges
faced by Border Patrol agents on Federal borderlands, as well
as for your trip with Chairman Bishop earlier this month to
visit the U.S.-Mexico border so we could get an update on the
latest status of the Nation's border security.
Our government has placed the men and women who patrol our
border, as well as the American citizens who live on or near
the border, in a very difficult position. We all recognize
that. As is all too often the case, Washington has created
bureaucratic hurdles that have adversely impacted the Border
Patrol agents' abilities to secure our southern border.
While well intentioned, the Memorandum of Understanding
that the Departments of Interior, Homeland Security, and
Agriculture have entered into has created challenges and
delayed Border Patrol agents' abilities to respond to illegal
activity in Federal lands adjacent to the border.
Nearly 35.3 percent of the southern border runs along or
through federally owned lands. Understanding the regulatory
difficulties posed to Border Patrol officers due to the
Wilderness Act, the National Environmental Policy Act, the
Endangered Species Act, and other policies, illegal immigrants,
human traffickers, and drug smugglers have targeted Federal
lands to conduct their illicit activities.
Those illicit activities not only threaten the personal
security of those who live along the border, but they have
caused extensive ecological and environmental damage. Human
waste, garbage, wildfires, tunnels, and the like have
contributed to serious damage to wildlife habitats.
In a July 2011 Department of the Interior report, the U.S.
Fish and Wildlife Service identified mass illegal immigration
as a likely contributing factor in the 79 percent decline in
the U.S. Sonoran pronghorn population between 2000 and 2002.
This is at the Organ Pipe Cactus National Monument, 79 percent,
that is a massive impact to an endangered species that is found
nowhere else in the world.
Republican and Democrat administrations alike have
highlighted the need to address this issue. For example, former
Department of Homeland Security Secretary Napolitano wrote in a
2009 letter to our Chairman, Mr. Bishop, ``While the U.S.
Border Patrol recognizes the importance and value of wilderness
area designations, they can have a significant impact on U.S.
Border Patrol operations in border regions. This includes that
these types of restrictions can impact the efficacy of
operations and be a hindrance to the maintenance of officer
safety.''
Former Department of the Interior Secretary Salazar stated
in 2010, ``We have seen that national security and
environmental conservation are mutually supporting goals.''
It was with all of the above in mind that I introduced H.R.
3593, the Securing Our Borders and Wilderness Act, which
provides a statutory fix to an issue perpetuated by bureaucracy
that, as we have said, is endangering both border security and
our Federal lands. The bill allows for the Department of
Homeland Security to conduct border security activities on
Federal lands in a manner that, to the greatest extent
possible, also protects wilderness areas. I look forward to
highlighting how my bill will help to alleviate the impediments
Border Patrol agents are facing at present, as well as the
issues more broadly that we will be discussing today.
I want to thank all of our witnesses for taking the time to
speak to this Committee. I yield back, Mr. Chairman.
[The prepared statement of Mr. Johnson follows:]
Prepared Statement of the Hon. Mike Johnson, a Representative in
Congress from the State of Louisiana
Mr. Chairman, I want to thank you for holding this critical hearing
to explore the challenges faced by Border Patrol agents on Federal
borderlands, as well as for your trip with Chairman Bishop earlier this
month to visit the border with Mexico to get an update on the state of
the Nation's border security.
Our government has placed the men and women who patrol our border,
as well as the American citizens who live on or near the border, in a
very difficult position. As is all too often the case, Washington has
created bureaucratic hurdles that have adversely impacted the Border
Patrol agent's abilities to shore up our southern border. While well-
intentioned, the Memorandum of Understanding that the Departments of
Interior, Homeland Security, and Agriculture entered into has created
challenges and delayed Border Patrol agent's abilities to respond to
illegal activity in Federal lands adjacent to the border.
Nearly 35.3 percent of the southern border runs along or through
federally owned lands. Understanding the regulatory difficulties posed
to Border Patrol due to the Wilderness Act, NEPA, ESA and other
policies, illegal immigrants, human traffickers, and drug smugglers
have targeted Federal lands to conduct their illicit activities.
These illicit activities not only threaten the personal security of
those who live along the border, but they have caused extensive
ecological and environmental damage. Human waste, garbage, wildfires,
tunnels and the like have contributed to serious damage to species
habitat.
In a July 2011 DOI report, the U.S. Fish and Wildlife Service (FWS)
identified mass illegal immigration as a likely contributing factor in
the 79 percent decline in the U.S. Sonoran pronghorn population between
2000 and 2002 at the Organ Pipe Cactus National Monument--79 percent.
That is a massive impact to an endangered species that is found nowhere
else in the world.
Republican and Democrat administrations alike have highlighted the
need to address this issue. For example, former DHS Secretary
Napolitano wrote in a 2009 letter to Chairman Bishop, ``While the USBP
recognizes the importance and value of wilderness area designations,
they can have a significant impact on USBP operations in border
regions. This includes that these types of restrictions can impact the
efficacy of operations and be a hindrance to the maintenance of officer
safety.'' Former DOI Secretary Salazar stated in 2010, ``. . . we have
seen that national security and environmental conservation are mutually
supporting goals.''
It was with all of the above in mind that I introduced H.R. 3593,
the Securing Our Borders and Wilderness Act, which provides a statutory
fix to an issue perpetuated by bureaucracy and endangers both border
security and our Federal lands. The bill allows for DHS to conduct
border security activities on Federal lands, in a manner that, to the
greatest extent possible, protects wilderness areas. I look forward to
exploring how my bill will help to alleviate the impediments Border
Patrol agents face at present, as well as the issue more broadly today.
Thank you to all of our witnesses for taking the time to speak to
this Committee, and I yield back.
______
Mr. Westerman. The gentleman yields back.
I now recognize the Ranking Minority Member of the Full
Committee, Mr. Grijalva of Arizona, for an opening statement.
STATEMENT OF THE HON. RAUL M. GRIJALVA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Grijalva. Thank you, Mr. Chairman. And I appreciate the
courtesy.
The Ranking Member has outlined my point of view on this
hearing very well. I can't do much better. But there is an
irony today. We are at the dawn of another senseless mass
murder, 17 students and 15 wounded, some critically, in
Florida, by a shooter with a semiautomatic AR-15.
No doubt the House will pause today, and we should, to give
our condolences and prayers to the victims and the families.
Then there will be a lot of talk about mental health, and then
we are going to ask people to be more vigilant, but nothing
else. No legislative efforts to reduce gun violence. No
prohibition of bump stocks. No universal background checks.
Nothing. NRA will keep that from happening. They will talk
about the sanctity of the Second Amendment and people's
individual rights, and that will take precedent over reducing
gun violence, that doesn't take the right from Americans to own
and have guns.
But, on the contrary, the Majority of this Committee has--
wherever that legislation is to allow silencers on public land,
to allow armor-piercing ammunition, to allow lead contamination
once again to kill wildlife. And then today, we are discussing
another set of rights. And the agenda that the Department of
Homeland Security wants to have ultimate power to waive laws,
ignore the public's right to know, and within the 100-mile
zone, to ignore and handcuff due process and basic rights and
constitutional guarantees that all Americans have.
I mention that because the question today is simply, does
Homeland Security and Border Patrol need more power beyond the
unprecedented authority that the Ranking Member outlined since
2005 on our public lands, and within that 100-mile area, the
authority that already exists relative to search and seizure,
probable cause, that are handcuffed in that area? And we are
asking about a unilateral authority to an agency with no
review, no accountability, and no responsibility for any
negative consequences.
Besides the constriction of--this is all a tactical
response, Mr. Chairman, a response in enforcement only
justified by some level of political hysteria. Things like the
mass invasion of MS-13 pouring over the border. Not true. The
gateway in my district of drug smuggling and poisoning of
America. That was a tweet that came from the Majority
Committee, which described that part of my district. It was
cute, but it was a lie.
And I can swear to you, Mr. Chairman, nowhere in my
district is there a large pharmaceutical plant like Pfizer
pumping out Oxy or other opioid-based drugs that have savaged
America and made a huge profit for them, and continue to be
overprescribed. To attack drug and human smuggling, those
cartels and organized crimes need a strategic, focused,
consistent, law enforcement response, not a pointless $25
billion wall, 10,000 more private for-profit beds, waiving
environmental laws, handcuffing basic individual and
constitutional rights, and, fundamentally, Mr. Chairman,
creating a distinct second class America in that part of the
borderlands, that 100 miles of the southwest.
This hearing comes at a time when we are engulfed in a
debate about DACA, engulfed in a debate about what will happen
with border security. This is not a time for exaggeration,
untruths, generalizations, scare tactics that won't solve
anything. And nor does the position that DHS has just taken to
oppose any reasonable bipartisan Senate compromise on DACA,
that shouldn't be the guide. They only endorse the most extreme
pieces of legislation that have come out. No bipartisan, no
compromise legislation will they tolerate.
I think what we are doing here today is handing over to an
agency extrajudicial power. We are handing over to an agency a
police function, turned into much more than that. The border
region should not be under martial law, it should not feel like
an occupied part of America, and should not be treated
different than any other place. People in Utah, Montana, and
Wyoming would not appreciate what is going on in the
borderlands.
I thank you for the witnesses today, and yield back.
[The prepared statement of Mr. Grijalva follows:]
Prepared Statement of the Hon. Raul M. Grijalva, a Representative in
Congress from the State of Arizona
The question for today is whether the Border Patrol needs even more
power. What do they have now?
The REAL ID Act of 2005 gave the Department of Homeland Security
authority to waive ``all legal requirements'' that might impede the
construction of barriers and roads. Think about that for a second. All
legal requirements. On any land, public or private. That includes any
Federal law that gives you and me the right to basic things like clean
water, clean air, the right to participate in government decisions, and
the right for native Americans to maintain their sacred burial grounds.
It also includes any state and local law that might get in the way. The
Congressional Research Service called the authority ``unprecedented.''
That waiver authority has had consequences for nearby communities.
It has produced flooding, erosion, death of animals that endangered or
threatened, and loss of economic opportunities like ecotourism in low
income communities, for starters.
As anti-democratic, unprecedented and harmful as that waiver
authority is, it is not enough for the Majority. They want to expand it
with authority they call ``waiving certain Federal environmental
laws.'' Let me translate that for you. They want to waive ``all legal
requirements'' when the Border Patrol is working not just on walls and
roads, but also tactical infrastructure and technology which applies to
a much larger swath of Border Patrol activity.
They also want to remove the requirement that the American people
are notified when the waiver authority is used on Federal lands. That
effectively allows individual Border Patrol agents to decide on the
spot whether to waive any legal requirements on Federal lands within
100 miles of the border.
Aside from the occasional anecdote, hear-say, and outdated reports,
there is no evidence that access to Federal lands is a problem. An
existing Memorandum of Understanding already facilitates the Border
Patrol and Federal land management agencies to work smoothly together
on accessing Federal lands, according to past testimony from the Border
Patrol.
It's not clear to me why, of all the crimes committed in the United
States, unapproved entry into the country is the only one to merit a
waiver-fueled police state in the eyes of the Majority. Given the
Majority's recent letter in defense of the rights of the Bundys, it is
clear that even repeated domestic terrorism doesn't rise to that level.
The creeping militarization of our border has done little to slow
border crossings. But it has affected our border communities.
I should know. I have border communities in my district. If the
Chairmen of this Full Committee and Subcommittee had told me they were
taking a Committee-funded trip to my district and surrounding area, I
could have shown them the non-border patrol view of border communities.
They would have found local economies that rely on cross-border
commerce. They would have seen a desert landscape arbitrarily split by
a wall, blocking local wildlife from their natural migration patterns,
and scarring the ecology of the entire region. And they would have
heard from the people who call this region home about what it means to
have to surrender their basic rights to the Border Patrol.
Instead, they saw what they wanted to see. Chairman Bishop went so
far as to tweet to me directly that my ``district has become the
gateway for cartels to smuggle dangerous drugs into the United States
and poison American communities.'' That view of our border communities,
and my district, is based on some very old and very dangerous
stereotypes and it is just not true. But those are the kinds of views
motivating this campaign to destroy the quality of life in border
communities with this wall.
Does the Border Patrol need even more power than the unprecedented
power they already have?
The clear answer is no.
______
Mr. Westerman. The gentleman's time has expired.
I want to thank our witnesses for being here today, and I
will now take a moment to give a brief introduction of our
witnesses.
Mr. Andrew Arthur is a Resident Fellow in Law and Policy at
the Center for Immigration Studies and a former immigration
judge; Mr. Dan Bell is President of the ZZ Cattle Corporation;
Mr. Scott Nicol is the volunteer Co-Chair of the Sierra Club
Borderlands Campaign; and Mr. Brandon Judd is President of the
National Border Patrol Council.
Let me remind the witnesses that under our Committee Rules,
you must limit your oral statements to 5 minutes, but your
entire statement will appear in the hearing record. Our
microphones are not automatic. When you start your testimony,
please push the button, it will turn green. After 4 minutes,
the yellow light will appear on the timer. And when the red
light comes on, I will ask that you please complete your
statement. I will also allow the entire panel to testify before
questioning the witnesses.
The Chair now recognizes Mr. Arthur to testify for 5
minutes.
STATEMENT OF THE HONORABLE ANDREW R. ARTHUR, RESIDENT FELLOW IN
LAW AND POLICY, CENTER FOR IMMIGRATION STUDIES, WASHINGTON, DC
Mr. Arthur. Thank you, Mr. Chairman.
Mr. Chairman, Ranking Member McEachin, and members of the
Subcommittee on Oversight and Investigations, I appreciate you
inviting me here today to discuss these important issues.
Over the past few years, I have had the opportunity to
experience the natural beauty of our national parks. Recently,
however, I have had the misfortune of seeing the degradation
caused by illegal cross-border traffic. Paths worn through
natural landscapes and abandoned rafts, garbage, and human
waste were all evidence of illegal entry.
While cross-border traffic has declined in my 25 years in
the field of immigration, the numbers are still staggering. In
Fiscal Year 2017, Border Patrol apprehended 303,916 individuals
along the southwest border. Not all of this traffic consisted
of aliens coming to the United States for work. Last year, for
example, Border Patrol seized 9,346 pounds of cocaine, 953
pounds of heroin, 10,328 pounds of methamphetamines, and 181
pounds of fentanyl. On my calculations, this is enough fentanyl
alone to kill 36 million Americans.
In the last fiscal year, Border Patrol agents apprehended
8,531 criminal aliens. They also arrested 228 aliens associated
with MS-13, a gang so organized and dangerous that in 2012 the
Obama Treasury Department designated them a transnational
criminal organization.
As my written testimony reveals, suspected terrorists are
also believed to have attempted illegal entry along our
southern border. Border Patrol agents must confront well-
organized, well-funded, and extremely violent operatives in
their attempts to secure the southwest border.
Transnational criminal organizations like the Gulf Cartel,
Los Zetas, and the Sinaloa Cartel, founded by the notorious
Joaquin ``El Chapo'' Guzman, control territory and smuggling
routes along the border, and profit from the illegal cross-
border traffic of aliens, drugs, and other contraband. The
drugs that they deliver flow into every corner of our country,
ruining lives, destroying families, and undermining our
communities and our way of life.
But the consequences are worse for Mexico. In fact, last
year was that country's most violent on record. Because of
these groups, corruption there is rampant and civil society
reels. And as the Mexican Government has targeted these groups,
the situation has gotten worse because rival cliques war over
smuggling routes and territory, with innocent civilians caught
in the crossfire.
But you don't need to believe me about the violent nature
of these criminals. Last week's Wall Street Journal quoted an
opponent of the President's wall proposal whose family owns
land near the Santa Ana Wildlife Refuge in Alamo, Texas. She is
concerned the wall would divide her property, resulting in,
``drug smugglers attacking farmworkers in hopes of getting the
code needed to open an access gate.'' She understands the
danger.
However, our agents have been hamstrung in responding to
these threats. As you know, Border Patrol must obtain
permission from Federal land management agencies before its
agents can maintain roads and install critical infrastructure
such as surveillance equipment when operating on Federal lands.
The agency's access to portions of those lands along the
southwest border has also been limited by land management laws.
Given the threat that illegal cross-border traffickers pose
to our communities and our national security, and the well-
funded and organized nature of the organizations that profit
from that traffic, this is unacceptable. We all agree that
protecting the American people must be the first duty of
government.
Border Patrol must be able to move freely across Federal
lands when necessary and have unconstrained access to a
tactical infrastructure and maintain needed access roads. This
will not only make our country safer and more secure, it will
also prevent the environmental degradation caused by such
traffic and protect the land management employees who work to
preserve that land.
Thank you, and I look forward to your questions.
[The prepared statement of Mr. Arthur follows:]
Prepared Statement of Andrew R. Arthur, Resident Fellow in Law and
Policy, Center for Immigration Studies
Mr. Chairman, Ranking Member McEachin, and Members of the
Subcommittee on Oversight and Investigations, I want to thank you for
inviting me here today to discuss this important issue.
my background
For more than 24 years, I served in various roles in the Federal
Government in the field of immigration.
I began as a law clerk in the Executive Office for Immigration
Review (EOIR), the agency in the Department of Justice (DOJ) with
jurisdiction over removal proceedings and adjudications relating to
sections 274A (employer sanctions), 274B (unfair immigration-related
employment practices, and 274C (civil document fraud) of the
Immigration and Nationality Act (INA).\1\
---------------------------------------------------------------------------
\1\ About the Office, United States Department of Justice,
Executive Office for Immigration Review, available at: https://
www.justice.gov/eoir/about-office.
---------------------------------------------------------------------------
From there, I started as a trial attorney at the former Immigration
and Naturalization Service (INS), working my way up to Associate
General Counsel. For a period of time, I served as the Acting Chief of
the National Security Law Division (NSLD), the unit within the INS
General Counsel's Office with jurisdiction over terrorists, espionage
risks, and persecutors.
During my term at the INS, the agency had jurisdiction over the
Border Patrol, then and now the Federal Government component with
primary jurisdiction for enforcing the immigration laws of the United
States between the ports of entry.\2\ As Associate General Counsel in
the INS Enforcement Division, and later in the NSLD, I regularly
handled issues relating to border security, and the need for barriers
along the southwest border.
---------------------------------------------------------------------------
\2\ Legal authority for the Border Patrol, U.S. Customs and Border
Protection, available at: https://help.cbp.gov/app/answers/detail/a_id/
1084//legal-authority-for-the-border-patrol.
---------------------------------------------------------------------------
I left the INS 6 weeks before September 11, 2001, because I was
concerned about vulnerabilities in our immigration enforcement system
that could be exploited by aliens who posed a risk to our national
security. Believing that those vulnerabilities could only properly be
addressed by Congress, I took a position as Oversight Counsel for
Immigration at the House Judiciary Committee.
I was in this position when the Committee, responding to the
attacks of September 11, drafted the ``Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism,'' or USA PATRIOT Act.\3\ In addition, I played a
role in the drafting of the Homeland Security Act of 2002,\4\ which
established the Department of Homeland Security in more or less its
present form.
---------------------------------------------------------------------------
\3\ Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism, Pub. L. 107-56
(2001), available at: https://www.Congress.gov/bill/107th-congress/
house-bill/3162/text.
\4\ Homeland Security Act of 2002, Pub. L. 107-296 (2002),
available at: https://www.Congress.gov/bill/107th-congress/house-bill/
5005.
---------------------------------------------------------------------------
I later transitioned to the position of legislative counsel for the
House Judiciary Committee's Subcommittee on Immigration, Border
Security, and Claims. Most importantly for purposes of today's hearing,
it was in this position that I served as one of the primary staff
drafters of the REAL ID Act of 2005,\5\ which I will discuss further
below.
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\5\ REAL ID Act of 2005, Pub. L. 109-13, div. B (2005), available
at: https://www.Congress.gov/bill/109th-congress/house-bill/1268.
---------------------------------------------------------------------------
I left Congress to take the bench as an Immigration Judge at the
York Immigration Court in York, Pennsylvania, where I served for more
than 8 years. At the beginning of my service in this position, the vast
majority of aliens who appeared before me had been apprehended in the
interior of the United States. During my last 3 years on the bench,
however, I began to see more and more aliens who have been apprehended
after entering the United States illegally along the southwest border
and claiming credible fear.\6\
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\6\ See Andrew R. Arthur, Fraud in the ``Credible Fear'' Process,
Threats to the Integrity of the Asylum System, Center for Immigration
Studies (Apr. 19, 2017), available at: https://www.cis.org/Report/
Fraud-Credible-Fear-Process.
---------------------------------------------------------------------------
In January 2015, I left the bench to serve as the Staff Director at
the House Oversight and Government Reform Committee's National Security
Subcommittee, a position that I held until September 2016. In this
role, I had oversight jurisdiction of the activities of U.S. Customs
and Border Protection (CBP), among other agencies.
Since April 2017, I have worked as the Resident Fellow in Law and
Policy at the Center for Immigration Studies, a nonpartisan, nonprofit
research organization here in Washington, DC. In this role, I toured
the border in the Rio Grande Valley (RGV), between McAllen and Roma,
Texas, with the Texas Department of Public Safety and the Border
Patrol, as well as the border in and near Del Rio, Texas with the Val
Verde County Sheriff in August 2017.
border security
As I noted above, the Border Patrol is responsible for securing the
border between the ports of entry. As CBP describes Border Patrol's
enforcement efforts, the agency:
[U]se[s] a layered approach that includes patrolling the border
itself, (including the use of electronic surveillance devices),
patrolling nearby areas and neighborhoods where illegal
immigrants can quickly fade into the general population, and
conducting checkpoints--both stationary and temporary.\7\
---------------------------------------------------------------------------
\7\ Legal authority for the Border Patrol, U.S. Customs and Border
Protection, available at: https://help.cbp.gov/app/answers/detail/a_id/
1084//legal-authority-for-the-border-patrol.
The Congressional Research Service (CRS) has described the
---------------------------------------------------------------------------
foundations of this border-control strategy:
Since the 1990s, migration control at the border has been
guided by a strategy of ``prevention through deterrence''--the
idea that the concentration of personnel, infrastructure, and
surveillance technology along heavily trafficked regions of the
border will discourage unauthorized migrants from attempting to
enter the United States. Since 2005, CBP has attempted to
discourage repeat unauthorized migrant entries and disrupt
migrant smuggling networks by imposing tougher penalties
against certain unauthorized migrants, a set of policies
eventually described as ``enforcement with consequences.'' Most
people apprehended at the southwest border are now subject to
``high consequence'' enforcement outcomes.\8\
---------------------------------------------------------------------------
\8\ Carla N. Argueta, Border Security: Immigration Enforcement
Between Ports of Entry (R42138), Cong Research Serv. (Apr. 19, 2016),
available at: https://fas.org/sgp/crs/homesec/R42138.pdf.
Before I discuss this strategy and its implementation further, I
want to list a few of the laws that Border Patrol enforces, and more
importantly, its authority to enforce those laws.
powers and authority of the border patrol
Section 287(a)(1) of the INA \9\ grants Border Patrol agents the
authority ``to interrogate any alien person believed to be an alien as
to his right to be or to remain in the United States'' without warrant.
---------------------------------------------------------------------------
\9\ Section 287(a) of the INA (2018), available at: https://
www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-
9505.html.
Section 287(a)(2) of the INA \10\ provides a Border Patrol Agent
the power, without warrant:
---------------------------------------------------------------------------
\10\ Section 287(a)(2) of the INA (2018), available at: https://
www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-
9505.html.
[T]o arrest any alien who in his presence or view is entering
or attempting to enter the United States in violation of any
law or regulation made in pursuance of law regulating the
admission, exclusion, expulsion, or removal of aliens, or to
arrest any alien in the United States, if he has reason to
believe that the alien so arrested is in the United States in
violation of any such law or regulation and is likely to escape
---------------------------------------------------------------------------
before a warrant can be obtained for his arrest . . .
Section 287(a)(3) of the INA \11\ provides authority to Border
Patrol Agents ``within a reasonable distance from any external boundary
the United States, to board and search for aliens on any vessel within
the territorial waters of the United States and any railway car,
aircraft, conveyance, or vehicle'' without a warrant. The implementing
regulation, 8 C.F.R. Sec. 287.1(a)(2),\12\ defines ``reasonable
distance'' as ``100 air miles from any external boundary of the United
States.'' This provides Border Patrol the authority for checkpoints
away from the border.
---------------------------------------------------------------------------
\11\ Section 287(g) of the INA (2018), available at: https://
www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-
9505.html.
\12\ 8 C.F.R. Sec. 287.1(a)(2) (2018), available at: https://
www.law.cornell.edu/cfr/text/8/287.1.
---------------------------------------------------------------------------
Border Patrol agents can bring charges against border violators on
several different grounds, both civil and criminal.
Under section 212(a)(6)(A)(i) of the INA,\13\ ``[a]n alien present
in the United States without being admitted or paroled, or who arrives
in the United States at any time or place other than as designated by
the Attorney General is inadmissible,'' meaning that such alien is
subject to (or more properly, ``amenable to'') removal. Removal under
this ground is a civil penalty.
---------------------------------------------------------------------------
\13\ Section 212(a)(6)(A)(i) of the INA (2018), available at:
https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-
0-2006.html.
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Under section 212(a)(6)(E)(i) of the INA,\14\ alien smugglers are
also amenable to removal. Specifically, that provision states: ``Any
alien, who at any time knowingly has encouraged, induced, assisted,
abetted, or aided any other alien to enter or to try to enter the
United States in violation of the law, is inadmissible.'' \15\
---------------------------------------------------------------------------
\14\ Section 212(a)(6)(E)(i) of the INA (2018), available at:
https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-17138/0-
0-0-17444.html#0-0-0-1785.
\15\ Id.
In addition, there are several criminal penalties for illegal
entry. For example, section 275(a) of the INA \16\ states:
---------------------------------------------------------------------------
\16\ Section 275(a) of the INA (2018), available at: https://
www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-
9025.html.
Any alien who (1) enters or attempts to enter the United States
at any time or place other than as designated by immigration
officers, or (2) eludes examination or inspection by
immigration officers, or (3) attempts to enter or obtains entry
to the United States by a willfully false or misleading
representation or the willful concealment of a material fact,
shall, for the first commission of any such offense, be fined
under title 18, United States Code, or imprisoned not more than
6 months, or both, and, for a subsequent commission of any such
offense, be fined under title 18, United States Code, or
---------------------------------------------------------------------------
imprisoned not more than 2 years, or both.
Section 274(a) of the INA contains criminal penalties for alien
smuggling.\17\ Specifically, subparagraphs 274(a)(1)(i) through (v) of
the INA ``prohibit[] alien smuggling, domestic transportation of
unauthorized aliens, concealing or harboring unauthorized aliens,
encouraging or inducing unauthorized aliens to enter the United States,
and engaging in a conspiracy or aiding and abetting any of the
preceding acts.'' \18\ Paragraph 274(a)(2) of the INA, on the other
hand, ``prohibits bringing or attempting to bring unauthorized aliens
to the United States in any manner whatsoever, even at a designated
port of entry.'' \19\
---------------------------------------------------------------------------
\17\ Section 274(a) of the INA (2018), available at: https://
www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-
8381.html.
\18\ Criminal Resource Manual, Offices of the United States
Attorneys (undated), available at: https://www.justice.gov/usam/
criminal-resource-manual-1907-title-8-usc-1324a-offenses.
\19\ Id.
Border Patrol is not limited in its responsibilities to the
enforcement of laws relating to aliens. Under section 287(a)(5) of the
INA,\20\ Border Patrol agents have the authority without warrant to
make arrests:
---------------------------------------------------------------------------
\20\ Section 287(a)(5) of the INA (2018), available at: https://
www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-
9505.html.
(A) for any offense against the United States, if the offense
---------------------------------------------------------------------------
is committed in the officer's or employee's presence, or
(B) for any felony cognizable under the laws of the United
States, if the officer or employee has reasonable grounds to
believe that the person to be arrested has committed or is
committing such a felony, if the officer or employee is
performing duties relating to the enforcement of the
immigration laws at the time of the arrest and if there is a
likelihood of the person escaping before a warrant can be
obtained for his arrest.
This authority allows Border Patrol agents to apprehend and charge
smugglers of drugs and other contraband into the United States.
the role of fencing and tactical infrastructure in border enforcement
Fencing and tactical infrastructure plays a significant, but often
misunderstood, role in the Border Patrol's enforcement strategy. CRS
has detailed various forms of tactical infrastructure along the border:
Border tactical infrastructure includes roads, lighting,
pedestrian fencing, and vehicle barriers. Tactical
infrastructure is intended to impede illicit cross-border
activity, disrupt and restrict smuggling operations, and
establish a substantial probability of apprehending terrorists
seeking entry into the United States.\21\
---------------------------------------------------------------------------
\21\ Carla N. Argueta, Border Security: Immigration Enforcement
Between Ports of Entry (R42138), Cong Research Serv. (Apr. 19, 2016),
at 14, available at: https://fas.org/sgp/crs/homesec/R42138.pdf.
---------------------------------------------------------------------------
(Internal footnote omitted).
Put in layman's terms, pedestrian fencing, roads, lighting,
sensors, and vehicle barriers each play two different, but
complementary, roles in border enforcement:
First, they serve as a deterrent to attempted entry. For example,
pedestrian fencing increases the difficulty and cost of such entry, and
by eliminating easy access across the border, reduces the likelihood of
attempted entry. Illegal entrants and smugglers follow the same rules
of incentives and economics that most actors follow, and amend their
actions accordingly. Similarly, lighting inhibits the ability of those
caught crossing the border illegally to do so under cover of darkness,
making it more likely that they will be caught, and less likely that
they will be enter the United States to, for example, work.
Second, such infrastructure creates an impediment to illicit
crossing. Even if an individual attempts illegal entry by going around
barriers or over fencing, those impediments will slow entry, providing
Border Patrol more time to deploy agents to the incursion point. In the
same way, sensors and cameras notify Border Patrol about illegal
entries, again facilitating timely deployment. This enables CBP to
direct its limited resources effectively and efficiently to those areas
where active incursions are occurring.
And, by any measure, those resources are limited. As of February
2017, CBP had fewer than 20,000 Border Patrol Agents,\22\ below its
authorization of 21,000. While this number might seem high, the U.S.-
Mexican border is approximately 1,933 miles long, and the U.S.-Canadian
border spans some 3,987 miles, not including the Canadian border with
Alaska.\23\ Tactical infrastructure is therefore critical to the Border
Patrol's mission.
---------------------------------------------------------------------------
\22\ Brian Naylor, Trump's Plan To Hire 15,000 Border Patrol And
ICE Agents Won't Be Easy, NPR (Feb. 23, 2017), available at: https://
www.npr.org/2017/02/23/516712980/trumps-plan-to-hire-15-000-border-
patrol-and-ice-agents-wont-be-easy-to-fulfill.
\23\ Janice Cheryl Beaver, U.S. International Borders: Brief Facts,
Cong. Research Serv. (updated Nov. 9, 2006), available at: https://
fas.org/sgp/crs/misc/RS21729.pdf.
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authority for border barriers
There has been significant discussion, both during the election
campaign and especially since President Trump's inauguration, about the
need for additional border barriers (including more walls, pedestrian
fencing, and vehicle barriers) along the southwest border.\24\
---------------------------------------------------------------------------
\24\ See, e.g., Paul Sperry, This town is proof that Trump's wall
can work, N.Y. Post (Jan. 13, 2018), available at: https://nypost.com/
2018/01/13/we-already-have-a-border-wall-and-it-works/.
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There are, essentially, four different statutes that authorize the
Department of Homeland Security (DHS) to erect barriers along the
border: \25\ the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA),\26\ the REAL ID Act of 2005,\27\
the Secure Fence Act of 2006,\28\ and the Consolidated Appropriations
Act, 2008.\29\ These legislative provisions are consolidated \30\ at 8
U.S.C. Sec. 1103 note.\31\
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\25\ See Michael John Garcia, Barriers Along the U.S. Borders: Key
Authorities and Requirements (R43975), Cong. Research Serv. (Jan. 27,
2017), at 1, available at: https://fas.org/sgp/crs/homesec/R43975.pdf.
\26\ Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA), P.L. 104-208, div. C, Sec. 102(c) (1996), available at:
https://www.gpo.gov/fdsys/pkg/PLAW-104publ208/pdf/PLAW-104publ208.pdf.
\27\ REAL ID Act of 2005, Pub. L. 109-13, div. B, Sec. 102 (2005),
available at: https://www.Congress.gov/bill/109th-congress/house-bill/
1268.
\28\ Secure Fence Act of 2006, Pub. L. 109-367, Sec. 3 (2006),
available at: https://www.Congress.gov/bill/109th-congress/house-bill/
6061.
\29\ Consolidated Appropriations Act of 2008, Pub. L. 110-161, div.
E, tit. V, Sec. 564(a) (2007), available at: https://www.Congress.gov/
bill/110th-congress/house-bill/2764.
\30\ Michael John Garcia, Barriers Along the U.S. Borders: Key
Authorities and Requirements (R43975), Cong. Research Serv. (Jan. 27,
2017), at 1, available at: https://fas.org/sgp/crs/homesec/R43975.pdf.
\31\ 8 U.S.C. Sec. 1103 note, available at: https://
www.law.cornell.edu/uscode/text/8/1103.
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A review of those laws emphasizes the need for broader waiver
authority to ensure that there is sufficient fencing and tactical
infrastructure to support the Border Patrol in its mission.
At the time that I, as a staffer on the House Judiciary Committee,
was reviewing the INA for potential national security vulnerabilities
in the 109th Congress, section 102(a) of IIRIRA directed the Attorney
General to ``to install additional physical barriers and roads
(including the removal of obstacles to detection of illegal entrants)
in the vicinity of the United States border to deter illegal crossings
in areas of high illegal entry into the United States.'' \32\ Section
102(c) of that act waived ``provisions of the Endangered Species Act of
1973 and the National Environmental Policy Act of 1969 . . . to the
extent the Attorney General determines necessary to ensure expeditious
construction of the barriers and roads under this section.'' \33\
Section 102(d) gave the Attorney General the authority to acquire land
``essential to control and guard the boundaries and borders of the
United States against any violation of'' the INA, including through
condemnation.\34\
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\32\ Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA), P.L. 104-208, div. C, Sec. 102(a) (1996), available at:
https://www.gpo.gov/fdsys/pkg/PLAW-104publ208/pdf/PLAW-104publ208.pdf.
\33\ Id. at 102(c).
\34\ Id. at 102(d).
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Section 102 of the REAL ID Act amended section 102(c) of IIRIRA
\35\ to grant the Secretary of Homeland Security authority to waive all
legal requirements the Secretary determined to be necessary to ensure
expeditious construction of barriers and roads in the vicinity of the
United States border.
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\35\ Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA), P.L. 104-208, div. C, Sec. 102(c) (1996), available at:
https://www.gpo.gov/fdsys/pkg/PLAW-104publ208/pdf/PLAW-104publ208.pdf.
---------------------------------------------------------------------------
As the Conference Report for that legislation stated:
Section 102 of [IIRIRA] provides for construction and
strengthening of barriers along U.S. land borders and
specifically provides for 14 miles of barriers and roads along
the border near San Diego, beginning at the Pacific Ocean and
extending eastward. It provides for a waiver of the Endangered
Species Act of 1973 (ESA) and the National Environmental Policy
Act of 1969 (NEPA) to the extent the Attorney General
determines is necessary to ensure expeditious construction of
barriers and roads. Despite the existing waiver provision,
construction of the San Diego area barriers has been delayed
due to a dispute involving other laws. The California Coastal
Commission has prevented completion of the San Diego border
security infrastructure because it alleges that plans to
complete it are inconsistent with the California Coastal
Management Program, a state program approved pursuant to the
Federal Coastal Zone Management Act (CZMA)--notwithstanding the
fact that the San Diego border security infrastructure was
designed to avoid and/or minimize adverse environmental
impacts, and the Bureau of Customs and Border Protection (CBP)
of the Department of Homeland Security testified before the
California Coastal Commission that the plans for completion
were consistent with the Coastal Management Program to the
maximum extent practicable without sacrificing the
effectiveness of the border security infrastructure. Continued
delays caused by litigation have demonstrated the need for
additional waiver authority with respect to other laws that
might impede the expeditious construction of security
infrastructure along the border, such as the Coastal Zone
Management Act.
Current Law. Section 102(c) of IIRIRA provided for a waiver of
the ESA and NEPA to the extent the Attorney General determines
is necessary to ensure expeditious construction of barriers and
roads.
Section 102 of the conference report would amend the current
provision to require the Secretary of Homeland Security to
waive all laws that he or she determines, in his or her sole
discretion, are necessary to ensure the expeditious
construction of the border barriers.
Additionally, it would prohibit judicial review of a waiver
decision or action by the Secretary and bar judicially ordered
compensatory, declaratory, or injunctive, equitable, or any
other relief or other remedy for damage alleged to result from
any such decision or action. As discussed above, current
statutes and the Reorganization Plan for the Department of
Homeland Security have not amended and clarified references to
executive authority throughout the INA. Accordingly, the
provision would have replaced the reference in current law to
the Attorney General by a reference to the Secretary of
Homeland Security.
The Conferees have revised the House provision in the following
respects. First, the revised provision authorizes but does not
require the Secretary of DHS to waive any legal requirements
that he or she, in his or her sole discretion, determines are
necessary to ensure expeditious construction of border security
infrastructure. Second, the provision clarifies the intent of
the conference report by substituting a reference to waiver of
``all legal requirements'' for the prior reference to waiver of
``all laws'', clarifying Congress' intent that the Secretary's
discretionary waiver authority extends to any local, state or
federal statute, regulation, or administrative order that could
impede expeditious construction of border security
infrastructure. Third, the conferees provided that any such
waiver would become effective upon publication in the Federal
Register, thereby ensuring appropriate public notice of such
determinations. Finally, the Conferees have provided federal
judicial review for claims alleging that the actions or
decisions of the Secretary violate the United States
Constitution. The Conferees have further provided that such
claims must be filed within sixty days of the Secretary's
action or decision, and that interlocutory or final judgments,
decrees, or orders of federal district courts on such claims
may be reviewed only upon petition for a writ of certiorari to
the Supreme Court of the United States. The Conferees' intent
is to ensure that judicial review of actions or decisions of
the Secretary not delay the expeditious construction of border
security infrastructure, thereby defeating the purpose of the
Secretary's waiver.\36\
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\36\ H.R. Rep. 109-72, div. B, tit. I, Sec. 102 (2005), available
at: https: / / www.Congress.gov/congressional-report/109th-congress/
house-report/72/1?overview=closed.
In Defenders of Wildlife v. Chertoff,\37\ a judge of the U.S.
District Court for the District of Columbia rejected a claim that the
waiver authority in section 102 of the REAL ID Act was
unconstitutional, a decision the Supreme Court declined to review.
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\37\ Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119, 129-30
(D.D.C. 2007), cert. denied, 554 U.S. 918 (2008).
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In section 3 of the Secure Fence Act of 2008,\38\ section 102(b)(1)
of IIRIRA was amended to identify specific areas where fencing should
be installed, and to specify the type of fencing that should be used.
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\38\ Secure Fence Act of 2006, Pub. L. 109-367, Sec. 3 (2006),
available at: https://www.Congress.gov/bill/109th-congress/house-bill/
6061.
While section 102(b)(1) of IIRIRA was amended again in the
Consolidated Appropriations Act, 2008,\39\ those amendments were
significantly more legally substantive, and restrictive, than the
amendments in the Secure Fence Act of 2008. Most importantly for
purposes of today's hearing, the Consolidated Appropriations Act, 2008
completely rewrote subparagraphs (A), (B), and (C) in that provision;
as amended, subparagraph (C) states:
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\39\ Consolidated Appropriations Act, 2008, Pub. L. 110-161, div.
E, tit. V, Sec. 564(a) (2007), available at: https://www.Congress.gov/
bill/110th-congress/house-bill/2764.
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Consultation.--
``(i) In general.--
In carrying out this section, the Secretary of Homeland
Security shall consult with the Secretary of the Interior, the
Secretary of Agriculture, States, local governments, Indian
tribes, and property owners in the United States to minimize
the impact on the environment, culture, commerce, and quality
of life for the communities and residents located near the
sites at which such fencing is to be constructed.
``(ii) Savings provision.--Nothing in this subparagraph may be
construed to--
``(I) create or negate any right of action for a State,
local government, or other person or entity affected by this
subsection; or
``(II) affect the eminent domain laws of the United States
or of any State.\40\
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\40\ Id.
Notwithstanding the caveats in those two subclauses, or the fact
that the Consolidated Appropriations Act, 2008, left the waiver
authority in section 102(c) of IIRIRA as amended by section 102 of the
REAL ID Act in place, a plaintiff could easily assert that this
consultation provision requires the Secretary of Homeland Security to
alter or abandon a fencing project based on environmental impacts
identified by ``the Secretary of the Interior, the Secretary of
Agriculture, States, local governments, Indian tribes, and property
owners.'' Clear waiver authority is necessary to overcome such
assertions, and ensure that the Secretary of Homeland Security is able
to erect barriers to protect against, and/or mitigate the effect of,
cross-border incursions.
dangers posed by illegal cross-border incursions
The enforcement mission of the Border Patrol is vital to protecting
our national security and the safety and health of the American people.
According to the latest statistics from CBP,\41\ in FY 2017,
303,916 aliens were apprehended between the ports of entry along the
southwest border, which was down from 408,870 in FY 2016 (but which
itself was up from FY 2015, when 331,333 apprehensions occurred).
Despite the downward trend in the past year, the number of aliens
attempting illegal entry is still significant.
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\41\ Southwest Border Migration FY2017, U.S. Customs and Border
Protection (updated Dec. 15, 2017), available at: https://www.cbp.gov/
newsroom/stats/sw-border-migration-fy2017.
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In addition to aliens, Border Patrol Agents apprehended a
significant quantity of narcotics in FY 2017. According to CBP,\42\
last year, agents seized 9,346 pounds of cocaine, 953 pounds of heroin,
861,231 pounds of marijuana, 10,328 pounds of methamphetamines, and 181
pounds of fentanyl.
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\42\ CBP Enforcement Statistics FY2018, U.S. Customs and Border
Protection (undated), available at: https://www.cbp.gov/newsroom/stats/
cbp-enforcement-statistics.
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In fact, in just the first 3 months of FY 2018,\43\ Border Patrol
seized 161 additional pounds of fentanyl, a drug the Drug Enforcement
Administration states \44\ is ``30-50 times more potent than heroin and
50-100 times more potent than morphine.'' Oxford Treatment Center
identifies \45\ 2 milligrams as a lethal dose of fentanyl, meaning that
161 pounds of the drug would be sufficient to kill 36,514,156 people.
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\43\ Id.
\44\ FAQ's-Fentanyl and Fentanyl-Related Substances, U.S. Drug
Enforcement Administration (undated), available at: https://
www.dea.gov/druginfo/fentanyl-faq.shtml.
\45\ Fentanyl: What Is a Lethal Dosage?, Oxford Treatment Center
(undated), available at: https://www.oxfordtreatment.com/fentanyl/
lethal-dose/.
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Additionally, CBP reports \46\ that in FY 2017, Border Patrol
Agents encountered 8,531 criminal aliens, of whom 2,675 had outstanding
wants or warrants. Border Patrol Agents also arrested ``536 illegal
aliens who are affiliated with a gang,'' including 228 of whom were
affiliated with MS-13.\47\
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\46\ CBP Enforcement Statistics FY2018, U.S. Customs and Border
Protection (undated), available at: https://www.cbp.gov/newsroom/stats/
cbp-enforcement-statistics.
\47\ CBP Border Security Report, FY 2017, U.S. Customs and Border
Protection (Dec. 5, 2017), at 3, available at: https://www.cbp.gov/
sites/default/files/assets/documents/2017-Dec/cbp-border-security-
report-fy2017.pdf.
In October 2012, the Department of Treasury designated MS-13 as a
``transnational criminal organization'' (TCO).\48\ At that time,
Treasury explained:
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\48\ Treasury Sanctions Latin American Criminal Organization, U.S.
Dep't of the Treasury (Oct. 11, 2012), available at: https://
www.treasury.gov/press-center/press-releases/Pages/tg1733.aspx.
MS-13 consists of at least 30,000 members in a range of
countries, including El Salvador, Guatemala, Honduras, and
Mexico, and is one of the most dangerous and rapidly expanding
criminal gangs in the world today. MS-13 is active within the
United States, with at least 8,000 members operating in more
than 40 states and the District of Columbia. MS-13's criminal
nature can be seen in one of its mottos, ``Mata, roba, viola,
controla'' (``Kill, steal, rape, control''). Domestically, the
group is involved in multiple crimes including murder,
racketeering, drug trafficking, sex trafficking and human
trafficking including prostitution. The group frequently
carries out violent attacks on opposing gang members, often
injuring innocent bystanders. MS-13 members have been
---------------------------------------------------------------------------
responsible for numerous killings within the United States.
Local MS-13 cliques take direction from the group's foreign
leadership for strategic decisions involving moves into new
territories and efforts to recruit new members. Money generated
by local MS-13 cliques in the United States is consolidated and
funneled to the group's leadership in El Salvador.\49\
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\49\ Id.
Attorney General Jeff Sessions, in prepared remarks \50\ on April
18, 2017, described how the gang has exploited loopholes in the U.S.
immigration system, and how it operates in the United States today:
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\50\ Remarks by Attorney General Jeff Sessions at Meeting of the
Attorney General's Organized Crime Council and OCDETF Executive
Committee, U.S. Dep't of Justice (April 18, 2017), available at:
https://www.justice.gov/opa/speech/remarks-attorney-general-jeff-
sessions-meeting-attorney-general-s-organized-crime-council.
Because of an open border and years of lax immigration
enforcement, MS-13 has been sending both recruiters and members
to regenerate gangs that previously had been decimated, and
smuggling members across the border as unaccompanied minors.
They are not content to simply ruin the lives of adults--MS-13
recruits in our high schools, our middle schools and even our
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elementary schools.
Just a few days ago, law enforcement believes that members of
MS-13 murdered four young men and dumped their bodies in a park
on Long Island. Last month, it was two teenage girls [in]
Brentwood, New York who were killed with machetes and baseball
bats. A few weeks ago, the FBI added an MS-13 member to their
Ten Most Wanted Fugitives List for a suspected brutal murder
with a baseball bat and screwdriver--all purportedly to earn
his MS-13 tattoo. Violence is an initiation rite. They've
killed mothers alongside their children and vice versa. They
have gang raped and trafficked girls as young as 12 years old.
Plainly, stopping these criminals from entering the United States
is a law-enforcement priority, one that is critical to protecting the
public and the many communities in which the gang operates.
Individuals with ties to terrorism have also attempted to enter the
United States across the U.S.-Mexico border, as the Christian Science
Monitor reported in January 2017.\51\ Most of the individuals
identified in that article were apprehended after they attempted to
enter illegally through the ports of entry. One case that bears
particular notice as it pertains to illegal incursions, however,
involves Anthony Joseph Tracy. As the paper reported: \52\
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\51\ Warren Richey, Are terrorists crossing the U.S.-Mexico border?
Excerpts from the case file, Christian Science Monitor (Jan. 15, 2017),
available at: https://www.csmonitor.com/USA/Justice/2017/0115/Are-
terrorists-crossing-the-US-Mexico-border-Excerpts-from-the-case-file.
\52\ Id.
Noor Services was a travel business in Nairobi, Kenya, that
offered a very specific kind of assistance to its clients. The
company specialized in helping would-be travelers from Somalia
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obtain visas to Cuba.
They weren't making the trip to the Caribbean island to enjoy
the hospitality of Havana, its food and music, or the nearby
beaches. Instead, according to federal prosecutors, Cuba was
seen as a doorway to the U.S.-Mexico border and an illicit
crossing into America.
The business was set up by Anthony Joseph Tracy, a U.S. citizen
and Muslim convert, who told federal agents that he had helped
272 Somalis travel illegally to the U.S., according to court
documents.
Federal prosecutors were concerned about more than just illegal
immigration. During a polygraph examination, Tracy admitted to
investigators that he'd been approached by members of the
Somali terror group Al Shabab.\53\
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\53\ Who are Somalia's al-Shabab?, BBC News (Dec. 22, 2017),
available at: http://www.bbc.com/news/world-africa-15336689.
He passed that portion of the polygraph. But he failed the part
when asked whether he helped members of the terror group travel
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to the U.S., according to court documents.
A prosecutor complained to the judge in Tracy's case that
investigators had ``no idea who these individuals are that he
assisted.'' She suggested Tracy's clients might pose a risk to
national security.
Tracy pleaded guilty to a single charge of conspiring to induce
non-citizens to enter the U.S. without legal authorization.
Under the conspiracy outlined in court, Tracy helped his
clients produce fraudulent documents to support their visa
applications. He also paid bribes to a clerk at the Cuban
Embassy in Kenya who issued the visas.
Clients flew from Kenya to Dubai to Moscow to Cuba. From there
they would fly to Belize and then travel to Mexico to make
their way across the U.S. border.
During a search, investigators found an email from a
prospective client asking for Tracy's help, according to court
documents. Tracy sent a reply that reads in part: ``I helped a
lot of Somalis and most are good but there are some who are bad
and I leave them to ALLAH . . ..''
Tracy told investigators he'd made about $90,000 during his
nine months in business.
Another intriguing reference in that article \54\ pertains to Adnan
El Shukrijumah:
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\54\ Id.
After Al Qaeda's Sept. 11, 2001 attacks on the World Trade
Center and Pentagon, Adnan El Shukrijumah spent more than a
decade at the top of the FBI's most wanted list. The U.S.
Government offered a $5 million reward for information leading
---------------------------------------------------------------------------
to his capture.
He was believed to have been hand-picked by Osama Bin Laden and
9/11 mastermind Khalid Sheikh Mohammed to plan and launch
follow-up attacks against the U.S. and other Western countries.
Federal agents were determined to find him before he could
carry out a mass-casualty operation.
Mr. Shukrijumah, a green-card holder from Saudi Arabia who had
lived for many years in Brooklyn and south Florida, disappeared
shortly before the 9/11 attacks.
According to the Christian Science Monitor,\55\ a formerly
classified document revealed that in 2004, ``officials at the U.S.
Consulate in Ciudad Juarez received a tip about `suspect Arab
extremists who have been smuggled through Mexico to the United States/
Mexico border.' '' Those ``extremists'' were purportedly in hiding in
Agua Prieta, Sonora, Mexico, which is adjacent to Douglas, Arizona.\56\
The paper reports \57\ that the aforementioned document stated that
``one of the three men is `likely Adnan G. El Shukrijumah, alleged to
be a Saudi Arabian terrorist cell leader thought to be in Mexico.' ''
---------------------------------------------------------------------------
\55\ Id.
\56\ Id.
\57\ Id.
Concerns about such illegal incursions by potential terrorists over
the southwest border were the focus of ``The Ultra-Marathoners of Human
Smuggling: How to Combat the Dark Networks that Can Move Terrorists
over American Land Borders,'' \58\ a scholarly examination of
transnational smuggling by Todd Bensman that appeared in Homeland
Security Affairs in May 2016. As Bensman writes:
---------------------------------------------------------------------------
\58\ Todd Bensman, The Ultra-Marathoners of Human Smuggling: How to
Combat the Dark Networks that Can Move Terrorists over American Land
Borders, Homeland Security Affairs (May 2016), available at: https://
www.hsaj.org/articles/10568.
Even before 9/11, . . . human smuggling networks were regularly
transporting migrants--and potentially, terrorists among them--
from some 35-40 Islamic ``countries of special interest'' in
the Middle East, South Asia and North Africa. The asylum-
seeking people they moved would come to be known as ``Other
than Mexicans, (OTMs)'' and then, even more specifically as
American strategy developed around them, the OTM subcategory
``special interest aliens (SIAs).'' \59\
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\59\ Id.
It is beyond cavil that the Border Patrol's mission of disrupting
the cross-border transit of aliens, terrorists, drugs, and other
contraband plays an essential role in keeping the American people safe.
Unfortunately, in performing that mission, the Border Patrol faces
well-organized, violent, and sophisticated foes.
criminal smuggling organizations
Drug trafficking organizations (DTOs), other TCOs, and various
subsidiary groups are actively involved in illicit cross-border
traffic. With respect to alien smuggling, U.S. Immigration and Customs
Enforcement (ICE) has reported: ``Moving human beings as cargo pays in
the billions of dollars for transnational criminal smuggling
organizations.'' \60\ ICE continues:
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\60\ Human smuggling equals grave danger, big money, U.S.
Immigration and Customs Enforcement (updated Jan. 16, 2018), available
at: https://www.ice.gov/features/human-smuggling-danger.
Human smuggling operates as a contract business; an
understanding exists among transnational criminal
organizations, smugglers and individuals seeking transport that
trying to cross the border independently is not an option.
Smugglers escort the illegal aliens through the desert, across
the border, to stash houses and onto their final destinations
within the interior of the U.S. A portion of the smuggling fees
paid to the transnational criminal organizations helps fuel
their other criminal enterprises.\61\
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\61\ Id.
These groups have caused tremendous damage in Mexico, both in terms
of human life and societal disruption.
As CNN explained in December 2017: \62\ ``The Mexican government
has been fighting a war with drug traffickers since December 2006. At
the same time, drug cartels have fought each other for control of
territory.'' In fact, Business Insider recently reported that ``2017
was Mexico's most violent year on record, with 26,573 homicide victims
during the first 11 months of the year.'' \63\
---------------------------------------------------------------------------
\62\ Mexico Drug War Fast Facts, CNN (Dec. 20, 2017), available at:
https://www.cnn.com/2013/09/02/world/americas/mexico-drug-war-fast-
facts/index.html.
\63\ Christopher Woody, The State Department is telling U.S.
citizens 'do not travel' to 5 states in Mexico, Business Insider (Jan.
11, 2018), available at: http://www.businessinsider.com/mexico-states-
no-go-zones-for-americans-us-state-department-2018-1.
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To illustrate this point, the United States Department of State
(DOS) latest travel advisory for Mexico \64\ advises United States
citizens not to travel to five Mexican states (Colima, Guerrero,
Michoacan, Sinaloa, and Tamaulipas). The latter state, Tamaulipas,
borders the United States along the RGV, while the other four are in
the interior of Mexico.
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\64\ Mexico Travel Advisory, U.S. Dep't of State (Jan. 10, 2018),
available at: https://travel.state.gov/content/travel/en/
traveladvisories/traveladvisories/mexico-travel-advisory.html.
The Los Angeles Times explains \65\ that cartel activity is largely
responsible for the threats in those five states. In Colima:
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\65\ Kate Linthicum, Why the State Department Said these 5 Mexican
states Are Unsafe for Travel, Los Angeles Times (Jan. 11, 2018),
available at: http://www.latimes.com/world/la-fg-mexico-states-warning-
20180111-htmlstory.html.
Rival cartels have been battling for control of Manzanillo's
port, a primary point of entry for drugs from South and Central
America as well as for precursor chemicals coming from Asia
that are used to manufacture synthetic drugs.\66\
---------------------------------------------------------------------------
\66\ Id.
---------------------------------------------------------------------------
In Guerrero:
The cartel that once dominated Acapulco and the rest of the
state fractured years ago, leaving smaller criminal groups to
violently vie for power. There are more than a dozen gangs
fighting in Acapulco, which is now Mexico's homicide capital.
Up in the Tierra Caliente, a region that encompasses parts of
northern Guerrero and neighboring [Michoacan] state, gangs have
been battling for control of poppy production. Poppy grown in
Guerrero and other states has made Mexico the No. 1 exporter of
heroin to the U.S.\67\
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\67\ Id.
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In Michoacan:
Violence erupted . . . starting in the mid-2000s, as cartels
battling for control of methamphetamine production expanded to
extortion and kidnapping. The government's failure to bring
order spawned a citizen vigilante movement, and to this day,
masked citizen police roam the state. In some towns, they have
taken over local governments.\68\
---------------------------------------------------------------------------
\68\ Id.
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As for Tamaulipas, that state:
[H]as been engulfed in violence between factions of the Gulf
cartel and the Zetas criminal group. While the homicide rate
there is not as high as in other states, extortion and
kidnappings are rampant. About one-fourth of all kidnappings in
Mexico occur in the state.\69\
---------------------------------------------------------------------------
\69\ Id.
With respect to Tamaulipas, DOS warns: \70\
---------------------------------------------------------------------------
\70\ Mexico Travel Advisory, U.S. Dep't of State (Jan. 10, 2018),
available at: https://travel.state.gov/content/travel/en/
traveladvisories/traveladvisories/mexico-travel-advisory.html.
Do not travel due to crime. Violent crime, such as murder,
armed robbery, carjacking, kidnapping, extortion, and sexual
assault, is common. Gang activity, including gun battles, is
widespread. Armed criminal groups target public and private
passenger buses traveling through Tamaulipas, often taking
passengers hostage and demanding ransom payments. Local law
enforcement has limited capability to respond to violence in
---------------------------------------------------------------------------
many parts of the state.
As Business Insider explained in July 2017: ``Tamaulipas in
Mexico's northeast corner is valuable territory [for criminal groups]
because of its proximity to the Gulf of Mexico and the U.S. border,
highways that cross it, and the energy infrastructure in the area.''
\71\
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\71\ Christopher Woody, Turmoil in Mexico's criminal underworld is
intensifying the violence in a valuable border territory, Business
Insider (Jun. 29, 2017), available at: http://www.businessinsider.com /
cartel-gang-violence-in-reynosa-nuevo-laredo-matamoros-mexico-border-
2017-6.
---------------------------------------------------------------------------
CRS reports that the Gulf Cartel, ``a transnational smuggling
operation with agents in Central and South America,'' is ``[b]ased in
the border city of Matamoros, Tamaulipas, with operations in other
Mexican states on the Gulf side of Mexico,'' although that cartel has
``reportedly has split into several competing gangs.'' \72\ It is now
also allegedly facing competition from Los Zetas cartel, ``its former
enforcement wing'' in northeast Mexico.\73\
---------------------------------------------------------------------------
\72\ June S. Beittel, Mexico: Organized Crime and Drug Trafficking
Organizations (R41576), Cong. Research Serv. (Apr. 25, 2017), at 16,
available at: https://fas.org/sgp/crs/row/R41576.pdf.
\73\ Id.; see also Christopher Woody, Turmoil in Mexico's criminal
underworld is intensifying the violence in a valuable border territory,
Business Insider (Jun. 29, 2017), available at: http://
www.businessinsider.com / cartel-gang-violence-in-reynosa-nuevo-laredo-
matamoros-mexico-border-2017-6.
According to Business Insider: \74\
---------------------------------------------------------------------------
\74\ Christopher Woody, Turmoil in Mexico's criminal underworld is
intensifying the violence in a valuable border territory, Business
Insider (Jun. 29, 2017), available at: http: / /
www.businessinsider.com / cartel-gang-violence-in-reynosa-nuevo-laredo-
matamoros-mexico-border-2017-6.
Those two cartels, as well as rivals with designs on
controlling the territory, have been responsible for much of
the violence in Tamaulipas over the last 20 years. The border
cities of Reynosa, Nuevo Laredo, and Matamoros appear to be
straining under a new wave of bloodshed driven by inter and
---------------------------------------------------------------------------
intra-cartel feuding.
The pervasive influence of criminal groups has undermined
police in the state, and those groups are believed to have won
political influence through intimidation and inducement.
As for Sinaloa, that state ``was . . . the birthplace of Joaquin
`El Chapo' Guzman, a poor kid who sold oranges in the street before
becoming Mexico's most infamous drug cartel leader.'' \75\ In a 2012
article, the New York Times reported that Guzman formed the Sinaloa
cartel following the 1989 arrest of Miguel Angel Felix Gallardo,\76\
``El Padrino,'' a one-time policeman and the head of the former
Guadalajara cartel.\77\
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\75\ Kate Linthicum, Why the State Department Said these 5 Mexican
states Are Unsafe for Travel, Los Angeles Times (Jan. 11, 2018),
available at: http://www.latimes.com/world/la-fg-mexico-states-warning-
20180111-htmlstory.html.
\76\ See Christopher Woody, The `godfather' of Mexico's cartels has
been sentenced for killing of a DEA agent, Business Insider (Aug. 30,
2017), available at: http://www.businessinsider.com/miguel-angel-felix-
gallardo-godfather-of-mexicos-cartel-sentenced-2017-8.
\77\ Patrick Radden Keefe, Cocaine Incorporated, New York Times
(Jun. 15, 2012), available at: http://www.nytimes.com/2012/06/17/
magazine/how-a-mexican-drug-cartel-makes-its-billions.html.
As the Los Angeles Times describes \78\ the situation in Sinaloa
today:
---------------------------------------------------------------------------
\78\ Kate Linthicum, Why the State Department Said these 5 Mexican
states Are Unsafe for Travel, Los Angeles Times (Jan. 11, 2018),
available at: http://www.latimes.com/world/la-fg-mexico-states-warning-
20180111-htmlstory.html.
After Guzman's arrest and extradition to the U.S. last year,
his Sinaloa cartel fragmented into warring factions. Those
factions are fighting each other as well as well as gangsters
aligned with the ascendant Jalisco New Generation cartel, which
has quickly taken control of wide swaths of the country with
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its brutal tactics.
Five other Mexican states border the United States: Baja
California, Sonora, Chihuahua, Coahuila, and (for nine miles) \79\
Nuevo Leon.\80\
---------------------------------------------------------------------------
\79\ Nuevo Leon, Border Legislative Conference (undated), available
at: http://www.borderlegislators.org/nuevo_leon_eng.htm.
\80\ Membership, Border Legislative Conference (undated), available
at: http://www.borderlegislators.org/membership_eng.htm.
With respect to Baja California, DOS warns: \81\
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\81\ Mexico Travel Advisory, U.S. Dep't of State (Jan. 10, 2018),
available at: https://travel.state.gov/content/travel/en/
traveladvisories/traveladvisories/mexico-travel-advisory.html.
Criminal activity and violence, including homicide, remain an
issue throughout the state. According to the Baja California
State Secretariat for Public Security, the state experienced an
increase in homicide rates compared to the same period in 2016.
While most of these homicides appeared to be targeted, criminal
organization assassinations, turf battles between criminal
groups have resulted in violent crime in areas frequented by
U.S. citizens. Bystanders have been injured or killed in
---------------------------------------------------------------------------
shooting incidents.
As for Chihuahua, the State Department reports: \82\ ``Violent
crime and gang activity are widespread.''
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\82\ Id.
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With respect to those two states, CRS explains:
The well-established Sinaloa [Drug Trafficking Organization
(DTO)] with roots in western Mexico, has fought brutally for
increased control of routes through the border states of
Chihuahua and Baja California, with the goal of remaining the
dominant DTO in the country. Sinaloa has a more decentralized
structure of loosely linked smaller organizations, which has
been susceptible to conflict when units break away.
Nevertheless, the decentralized structure has enabled it to be
quite adaptable in the highly competitive and unstable
environment that now prevails.\83\
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\83\ June S. Beittel, Mexico: Organized Crime and Drug Trafficking
Organizations (R41576), Cong. Research Serv. (Apr. 25, 2017), at 10,
available at: https://fas.org/sgp/crs/row/R41576.pdf.
According to DOS: \84\ ``Sonora is a key location utilized by the
international drug trade and human trafficking networks.'' CRS reports
that the Sinaloa DTO ``controls crime'' in that state.\85\
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\84\ Mexico Travel Advisory, U.S. Dep't of State (Jan. 10, 2018),
available at: https://travel.state.gov/content/travel/en/
traveladvisories/traveladvisories/mexico-travel-advisory.html.
\85\ June S. Beittel, Mexico: Organized Crime and Drug Trafficking
Organizations (R41576), Cong. Research Serv. (Apr. 25, 2017), at 13,
available at: https://fas.org/sgp/crs/row/R41576.pdf.
In Coahuila, DOS reports: ``Violent crime is widespread. Local law
enforcement has limited capability to prevent and respond to crime,
particularly in the northern part of the state.'' \86\ The Irish Times
reported \87\ in January 2017: ``Since the appearance of the Zetas
cartel in Coahuila in 2009, people in the northern state live each day
fearing for their safety.'' The paper quotes ``human rights defender
Cristina Auerbach,'' who states that the Zetas:
---------------------------------------------------------------------------
\86\ Mexico Travel Advisory, U.S. Dep't of State (Jan. 10, 2018),
available at: https://travel.state.gov/content/travel/en/
traveladvisories/traveladvisories/mexico-travel-advisory.html.
\87\ Sorcha Pollak, Shafted: Mexico's miners and its drug cartels,
Campaigners want Ireland to help with their country's human rights
crisis, Irish Times (Jan 28, 2017), available at: https://
www.irishtimes.com/news/world/shafted-mexico-s-miners-and-its-drug-
cartels-1.2949396.
[A]re a very disciplined operation and run an elaborate
communication network far superior to any of the local
authorities . . .. We are living in a time of absolute terror.
We are living in a world not only of drug trafficking, but also
of money laundering, human trafficking, child trafficking, the
trafficking of women. These cartels have complete control over
our state, and as a result we live in absolute terror.\88\
---------------------------------------------------------------------------
\88\ Id.
Finally, DOS states: \89\ ``Violent crime and gang activity are
common in parts of Nuevo Leon state.''
---------------------------------------------------------------------------
\89\ Mexico Travel Advisory, U.S. Dep't of State (Jan. 10, 2018),
available at: https://travel.state.gov/content/travel/en/
traveladvisories/traveladvisories/mexico-travel-advisory.html.
An April 2017 CRS report \90\ contains an in-depth analysis of the
various cartels and other DTOs that are responsible for the majority of
the criminal violence in Mexico, as well as their tactics and the
vicious nature of their activities. Of particular note is the following
passage:
---------------------------------------------------------------------------
\90\ June S. Beittel, Mexico: Organized Crime and Drug Trafficking
Organizations (R41576), Cong. Research Serv. (Apr. 25, 2017), available
at: https://fas.org/sgp/crs/row/R41576.pdf.
Police corruption has been so extensive that law enforcement
officials corrupted or infiltrated by the DTOs and other
criminal groups sometimes carry out their violent assignments.
Purges of Mexico's municipal, state, and federal police have
---------------------------------------------------------------------------
not contained the problem.
The relationship of Mexico's drug traffickers to the government
and to one another is now a rapidly evolving picture, and any
current snapshot (such as the one provided in this report) must
be continually adjusted.\91\
---------------------------------------------------------------------------
\91\ Id. at 7.
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In addition, that report notes:
An[] emerging factor has been the criminal diversification of
the DTOs into poly crime organizations. In addition to
trafficking illegal narcotics, they have branched into other
profitable crimes, such as kidnapping, assassination for hire,
auto theft, controlling prostitution, extortion, money-
laundering, software piracy, resource theft, and human
smuggling. The surge in violence due to inter- and intra-cartel
conflict over lucrative drug smuggling routes has been
accompanied by an increase in kidnapping for ransom and other
crimes.\92\
---------------------------------------------------------------------------
\92\ Id. at 25.
In short, the Border Patrol must respond to the efforts of violent,
well-financed, ever-evolving criminal organizations on a daily basis in
performing its mission. Given these facts, ``border security'' cannot
easily be separated from ``domestic security,'' ``homeland security,''
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or ``national security.''
carrizo cane eradication
Not all of the challenges that Border Patrol faces in performing
its duties are the work of man, however. Along the Rio Grande River in
the RGV and in the populated sections of Del Rio, Texas, I saw the
impact of carrizo cane on the agency's ability to prevent cross-border
incursions.
As the Texas State The Soil & Water Conservation Board (S&WCB)
website \93\ describes the problem:
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\93\ Rio Grande Carrizo Cane Eradication Program, Texas State The
Soil & Water Conservation Board (undated), available at: https://
www.tsswcb.texas.gov/programs/rio-grande-carrizo-cane-eradication-
program.
Large dense stands of non-native carrizo cane (Arundo donax)
now occupy the banks and floodplains of the Rio Grande,
thwarting law enforcement efforts along the international
border, impeding and concealing the detection of criminal
activity, restricting law enforcement officers' access to
riverbanks, and impairing the ecological function and
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biodiversity of the Rio Grande.
Arundo is an exceptionally fast growing plant, able to grow
about 4 inches per day and reach a mature height of over 25
feet in about 12 months. These stands of invasive riparian
weeds present considerable obstacles for the protection of the
international border by law enforcement and agricultural
inspectors, by both significantly reducing visibility within
enforcement areas and by providing favorable habitat for
agriculturally damaging cattle ticks.
Carrizo cane is considered one of the greatest threats to the
health of riparian ecosystems in the southwestern United
States, with great negative impact to biodiversity and
ecological processes. Arundo does not provide any food sources
or nesting habitats for native wildlife. Carrizo cane is linked
to sediment accumulation, channel constriction, and increased
flooding frequency threatening the riparian ecosystem of the
Rio Grande.
Carrizo cane is a noxious brush species that consumes precious
water resources to a degree that is detrimental to water
conservation. As a result of this weed's high
evapotranspiration capacity, infestations threaten water
supplies for agriculture and municipal drinking water uses in
south Texas.
Because of the thickness of the cane, and its height, those
crossing the border illegally along the river are able to quickly enter
stands of the plant, and remain or proceed undetected. During my August
trip to the border, I saw numerous paths through the cane that had been
worn by illegal entrants, a number of which were marked by the presence
of deflated rafts that crossers had used to ford the river:
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
While Texas law \94\ requires SWCB to ``develop and implement a
program to eradicate Carrizo cane along the Rio Grande River,'' the
Texas Tribune reported in 2016:
---------------------------------------------------------------------------
\94\ Tex. Agric. Code Sec. 201.0225 (2018), available at: http://
codes.findlaw.com/tx/agriculture-code/agric-sect-201-0225.html.
[F]earing that herbicides used for the project will pollute the
river, the primary water source for several border communities,
an environmental group is planning a full-fledged effort to
halt the plan and is recruiting local governments to join its
side.\95\
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\95\ Julian Aguilar, New Effort to Wipe Out Carrizo Cane Reignites
Environmental Debate, Texas Tribune (Apr. 5, 2016), available at:
https://www.texastribune.org/2016/04/05/new-carrizo-eradication-effort-
reignites-old-debat/.
---------------------------------------------------------------------------
The results of that effort are not clear.
Eradicating this invasive plant would significantly facilitate
control of the border in the areas where it proliferates, according to
both Federal and state law-enforcement officials to whom I spoke. That
plant also presents an officer-safety issue, as it conceals the
presence of often-dangerous (and armed) smugglers and traffickers.
border security on federal lands
The interplay between the Border Patrol and other Federal agencies
(with primarily environmental missions) is a significant issue because
there are large numbers of Federal lands within close proximity to the
southwest border that are managed by those other agencies.\96\ CRS, for
example, has reported:
---------------------------------------------------------------------------
\96\ See Carol Hardy Vincent, Laura A. Hanson, and Carla N.
Argueta, Federal Land Ownership: Overview and Data (R42346), Cong.
Research Serv. (Mar. 3, 2017), at 24, available at: https://fas.org/
sgp/crs/misc/R42346.pdf.
Precise estimates of the acreage [within 50 and 100 miles from
the U.S.-Mexican border] are not readily available because the
agencies do not distinguish their lands by distance from the
border. One estimate provided by the agencies to the House
Committee on Natural Resources reported that within 100 miles
of the border, there were about 26.7 million acres of federal
lands. Nearly half of this land (12.3 million acres) was
managed by [the Bureau of Land Management (BLM)], and the other
federal lands were managed by [the Department of Defense (DOD)]
(5.8 million acres), [Forest Service (FS)] (3.8 million acres),
[National Park Service (NPS)] (2.4 million acres), [Fish and
Wildlife Service (FWS)] (2.2 million acres), and other federal
agencies (0.2 million acres).\97\
---------------------------------------------------------------------------
\97\ Id.
---------------------------------------------------------------------------
(Footnote omitted).
As CRS notes, while Border Patrol ``is the lead agency for border
security between ports of entry,'' at least 40 percent ``of the
southwestern border abuts Federal and tribal lands overseen by the FS
and four [Department of the Interior (DOI)] agencies (including the
Bureau of Indian Affairs) that also have law enforcement
responsibilities.'' \98\ It admits: ``Differences in missions and
jurisdictional complexity among these agencies have been identified as
potentially hindering border control.'' \99\
---------------------------------------------------------------------------
\98\ Id.
\99\ Id.
---------------------------------------------------------------------------
It reported:
To facilitate control efforts, the three departments--DHS, the
Department of Agriculture (for the FS), and DOI--signed
memoranda of understanding (MOUs) on border security. These
MOUs govern information sharing, budgeting, and operational
planning; [Border Patrol] access to federal lands; and
interoperable radio communications, among other topics.\100\
---------------------------------------------------------------------------
\100\ Id.
The tension among these agencies in executing their individual
missions on Federal lands was the subject of an October 2010 report
\101\ issued by the Government Accountability Office (GAO). In that
report, GAO explained:
---------------------------------------------------------------------------
\101\ Southwest Border: More Timely Border Patrol Access and
Training Could Improve Security Operations and Natural Resource
Protection on Federal Lands (GAO-11-38), Gov't Accountability Office
(Oct. 19, 2010), available at: https://www.gao.gov/products/GAO-11-38.
When operating on federal lands, Border Patrol has
responsibilities under several federal land management laws,
including the National Environmental Policy Act, National
Historic Preservation Act, Wilderness Act, and Endangered
Species Act. Border Patrol must obtain permission or a permit
from federal land management agencies before its agents can
maintain roads and install surveillance equipment on these
lands. Because land management agencies are also responsible
for ensuring compliance with land management laws, Border
Patrol generally coordinates its responsibilities under these
laws with land management agencies through national and local
interagency agreements. The most comprehensive agreement is a
2006 memorandum of understanding intended to guide Border
---------------------------------------------------------------------------
Patrol activities on federal lands.
GAO found,\102\ however:
---------------------------------------------------------------------------
\102\ Id.
Border Patrol's access to portions of some federal lands along
the southwestern border has been limited because of certain
land management laws, according to patrol agents-in-charge for
17 of the 26 stations, resulting in delays and restrictions in
agents' patrolling and monitoring these lands. Specifically,
patrol agents-in-charge for 14 of the 17 stations reported that
they have been unable to obtain a permit or permission to
access certain areas in a timely manner because of how long it
takes for land managers to conduct required environmental and
historic property assessments. The 2006 memorandum of
understanding [2006 MOU] directs the agencies to cooperate with
one another to complete, in an expedited manner, all compliance
required by applicable federal laws, but such cooperation has
not always occurred. For example, Border Patrol requested
permission to move surveillance equipment to an area, but by
the time the land manager conducted a historic property
assessment and granted permission--more than 4 months after the
initial request--illegal traffic had shifted to other areas.
Despite the access delays and restrictions, 22 of the 26
agents-in-charge reported that the overall security status of
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their jurisdiction is not affected by land management laws.
As an aside, I would note that ``overall security status'' is a
weak benchmark by which to measure the effect of such ``access delays
and restrictions,'' given that it encompasses all operations at the
Border Patrol facility in question, and not individual operations. That
said, the fact that these ``access delays and restrictions'' affected
the overall security status at four facilities is significant, and any
delays affect Border Patrol's operations, as is apparent from the cite
above.
The 2006 MOU \103\ is problematic in a number of ways, but the most
fundamental issue with that MOU is that it fails to recognize the
exigencies of Border Patrol operations, and in essence requires Border
Patrol to seek DOI and/or USDA permission before undertaking its most
critical missions. Simply put, it is a September 10 document for a
post-September 11 world, and one that fails to recognize, comprehend,
or appreciate the sophistication and agility of the criminal entities
operating along the southwest border.
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\103\ Memorandum of Understanding Among U.S. Department of Homeland
Security and U.S. Department of the Interior and U.S. Department of
Agriculture Regarding Cooperative National Security and
Counterterrorism Efforts on Federal Lands along the United States'
Borders (Mar. 2006), available at: https://cis.org/sites/cis.org/files/
articles/2010/mou.pdf.
Take for example paragraph IV.A.5 in that MOU.\104\ It states:
---------------------------------------------------------------------------
\104\ Id., at 4.
The Parties will cooperate with each other to identify methods,
routes, and locations for CBP-[Border Patrol (BP)] operations
that will minimize impacts to natural, cultural, and wilderness
resources resulting from CBP-BP operations while facilitating
needed CBP-BP access . . .\105\
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\105\ Id.
By definition, such ``cooperation'' gives DOI and USDA significant
say in the manner in which Border Patrol executes its mission. As a
practical matter, however, it gives those departments, which do not
otherwise have a significant national-security mission, veritable veto
power over at least some of the ``methods, routes, and locations'' of
the operations of the law-enforcement component of the United States
government with expertise in border security, the Border Patrol.
No one disputes the fact that ``impacts to natural, cultural, and
wilderness resources'' should be minimized to the greatest extent
possible. What the 2006 MOU does, however, is to put the
``environmental cart'' in front of the ``national-security horse.''
Congress should reassess the respective roles of the Border Patrol
and the each of the land management agencies, to ensure that critical
law-enforcement activities are not impeded in any way. Given the
sophistication and funding of the entities with which it must contend,
Border Patrol must be able to act swiftly, without restrictions, to
respond to any criminal or national security threat that it faces. Any
delay will allow those criminal organizations to exploit critical
vulnerabilities along the border, a fact that can have significant
safety implications for the United States, as shown above.
environmental damage caused by cross-border incursions
The large number of cross-border traffickers who have attempted to
enter the United States illegally have caused harm to our most
vulnerable, and culturally and environmentally valuable, Federal lands.
Janice L. Kephart, a former National Security Fellow at the Center
for Immigration Studies, described some of these issues in a March 2011
post for the Center.\106\ To assess the environmental impact of illegal
immigration on Federal lands, Ms. Kephart filed a Freedom of
Information Act (FOIA) seeking documentation related to this
issue.\107\ As she described the results:
---------------------------------------------------------------------------
\106\ Janice Kephart, My Great-Grandfather, President Obama, and
Preserving Our Federal Lands, Center for Immigration Studies (Mar. 3,
2011), available at: https://www.cis.org/Kephart/My-GreatGrandfather-
President-Obama-and-Preserving-Our-Federal-Lands.
\107\ Id.
Some of the material I received from the request included
internal memos discussing the problem within the Department of
Interior, as well as PowerPoint presentations created by Park
Service personnel from the Tohono O'odham Indian Reservation,
Organ Pipe National Monument, and Buenos Aires Wildlife Refuge
showing that nearly all national park destruction on these
central Arizona border areas was due to illegal alien traffic.
The threat from illegal activity is so bad, in fact, that for
years the Park Service has completely closed these parks due to
the ``unacceptable level of risk to the public and staff'' from
the ``high level of illegal activity going on'' in these
parks.\108\
---------------------------------------------------------------------------
\108\ Id.
In June 15, 2006 testimony \109\ before the House Committee on
Appropriations, Subcommittee on Interior, Environment and Related
Agencies, Tina Terrell, then-Forest Supervisor of the Cleveland
National Forest, described the impacts of illegal crossers on that
forest:
---------------------------------------------------------------------------
\109\ Effects of Illegal Border Activities on the Federal Land
Management Agencies Before the H. Comm. on Appropriations, Subcomm. on
Interior, Environment and Related Agencies, 109th Cong. (2006)
(statement of Tina Terrell, Forest Supervisor of the Cleveland National
Forest, U.S. Dept of Agriculture, Forest Service), available at: https:
/ / www.doi.gov / ocl / illegal-immigration.
The Cleveland National Forest in California continues to
experience cross-border violators creating unwanted trails and
leaving large numbers of abandoned campfires and large amounts
of trash on the Forest as they travel through the area . . ..
Since 1997, the Cleveland National Forest has staffed a border
fire prevention and resource protection crew to remedy impacts
created by cross-border violators. Their primary job is to find
and extinguish illegal campfires before they expand and become
wildfires. Each year these fire prevention efforts have helped
reduce resource damage and wildfire costs. Despite these
efforts, in 2005, over 370 acres of the National Forest burned
due to illegal campfires and over 4 tons of trash was removed
from the National Forest, much of which can be attributed to
---------------------------------------------------------------------------
illegal immigration.
She testified, however, that the effects of illegal border traffic
on the Coronado National Forest had been much greater than on the
Cleveland National Forest. She noted that:
The natural and cultural resources on the Coronado have
regional, national and international importance. There are 12
separate and uniquely distinct mountain ranges, eight
designated wilderness areas, containing approximately 203
threatened, endangered, or sensitive species. These resources
are suffering significant adverse impacts due to illegal border
traffic.
With respect to impacts to natural resources from such traffic in
that forest, she asserted:
Activities by cross-border violators sometimes adversely affect
the natural resources we protect and manage, and interfere with
authorized management activities and uses. Repeated damage to a
livestock exclosure fence next to the border established to
protect an endangered fish species, the Sonoran Chub, has been
so extensive that the exclosure fence has had to be completely
rebuilt several times and has often been rendered ineffective
in restricting livestock use. This fence damage has allowed the
destruction of endangered species habitat to continue and has
resulted in very expensive, unplanned repairs.
Literally hundreds of miles of unauthorized trails and roads
have been created on the Forest by illegal foot and vehicle
traffic. This proliferation of trails and roads damages and
destroys cactus and other sensitive vegetation; disrupts or
prohibits revegetation; disturbs wildlife, their security and
travel routes; causes soil compaction and erosion; impacts
stream bank stability; and puts the public at risk by creating
confusion as to which routes are lawful and safe.
Perhaps one of the most well[-]known of the impacts of illegal
immigration is the litter left behind, which we note, tends to
accumulate in higher amounts than found in other urban National
Forests. Additionally, cleaning up the litter is difficult due
to the lack of facilities and remoteness of the border areas.
The presence of trash also detracts from scenic qualities and
from the visitors' experience. Water sources near this
contamination are often so fouled by pollution that wildlife
can no longer use them. Where trash is left behind in
designated wilderness or other areas far from roads, expensive
and difficult removal by the use of horses or mules is
required. Adding to the fire risk and agency expense are the
hundreds of vehicles, most stolen, abandoned by smugglers and
other cross-border violators or seized during law enforcement
operations.
Similarly, in July 2009, Fox News reported \110\ on a 2007 internal
Federal Government memo that detailed the effect of illegal alien
crossings on DOI activities at National Parks in the Southwest:
---------------------------------------------------------------------------
\110\ Stephen Clark, Memo Reveals Refuge Officers' Struggle to
Secure Lands Along Southwest Border, Fox News (July 9, 2010), available
at: http: / / www.foxnews.com / politics/2010/07/09/federal-park-
rangers-struggle-secure-public-land-southwest-border.html.
According to the memo, which was obtained by FOXNews.com, the
Department of Interior warns that refuge officers are spending
100 percent of their time at Cabeza Prieta National Wildlife
preserve and between 90 to 95 percent of their time in Buenos
Aires National Wildlife Refuge and Leslie Canyon dealing with
border-related activities. It also notes that the Cabeza Prieta
preserve is spending 60 to 70 percent of its budget on border-
---------------------------------------------------------------------------
related activities.
This includes everything from apprehending illegal immigrants
until Border Patrol can arrive, to cleaning up the mountains of
trash--about 500 tons a year--that they leave behind. More than
1,300 miles of illegal trails had been created on the refuge by
illegal border-crossers, the memo says.
Nor are such impacts a thing of the past. The Arizona Department of
Environmental Quality manages the ``Arizona Border Trash''
website.\111\ It defines ``border trash'' as:
---------------------------------------------------------------------------
\111\ Arizona Border Trash, Ariz. Dep't of Environmental Quality
(undated), available at: https://www.azbordertrash.gov/about.html.
[I]tems discarded by persons involved in illegal immigration
such as plastic containers, clothing, backpacks, foodstuffs,
vehicles, bicycles and paper. It can also consist of human
waste and sometimes medical products.\112\
---------------------------------------------------------------------------
\112\ Id.
That website explains: \113\
---------------------------------------------------------------------------
\113\ Id.
The collection and disposal of waste in remote areas along
Arizona's 370-mile border with Mexico poses difficult
challenges. An estimated more than 2,000 tons of trash is
discarded annually in Arizona's borderlands. A variety of
federal and state government entities, Native American tribes
and private landowners are affected by the problem, and
---------------------------------------------------------------------------
addressing it requires extensive coordination.
The environmental impact caused by illegal immigration, and the
trash left behind, is increasingly being found in areas that
are more fragile and remote.
The website notes \114\ that border trash ``has been shown to
affect human health, the environment and economic wellbeing.'' Included
among the specific impacts listed \115\ are: ``[s]trewn trash and
piles;'' ``[i]llegal trails and paths;'' ``[e]rosion and watershed
degradation;'' ``[d]amaged infrastructure and property;'' ``[l]oss of
vegetation and wildlife;'' and ``[c]ampfires and escaped fires.''
---------------------------------------------------------------------------
\114\ Id.
\115\ Id.
---------------------------------------------------------------------------
According to the website,\116\ each of the approximately 64,900
border crossers apprehended in the Tucson Sector in FY 2016 (and others
who were not apprehended) ``leave approximately six to eight pounds of
trash in the desert during his or her journey.'' Disposing of this
trash is costly for the communities affected: ``Landfill fees range
from $37 to $49 per ton in Southern Arizona. These fees do not include
costs for materials, equipment, labor and transportation for the
collection and transfer of the trash to the landfill.'' \117\
---------------------------------------------------------------------------
\116\ Id.
\117\ Id.
Similar points are made in the Southern Arizona Project 2016 Border
Report from BLM.\118\ That report states:
---------------------------------------------------------------------------
\118\ Southern Arizona Project 2016 Border Report, U.S. Dep't of
the Interior, Bureau of Land Management (undated), available at:
https://www.blm.gov/sites/blm.gov/files/documents/files/
SAP%202016%20%28508%20Final%29.pdf.
While smuggling has been a long term concern along on the
border, by the late 1990s, illegal transnational activity was
prompting safety concerns for public land users in Arizona, as
well as causing adverse effects on the health of public lands
themselves. Initially, most impacts were concentrated near
major ports of entry such as Yuma and Nogales. However, as port
enforcement increased, smugglers moved to more remote, isolated
areas, including BLM-managed public lands. As law enforcement
patrols increased in these more remote areas, smugglers began
traveling off-road in order to evade detection. These travelers
leave more than tracks. The traffic creates new, ad-hoc roads
and trails, damages native vegetation and disturbs wildlife.
Drug and human smuggling also generates tons of garbage,
including discarded personal items, bicycles, tires and
abandoned vehicles. Millions of pounds of trash and waste along
with damaged roads, structures, and fences have impacted
Wilderness areas, riparian habitat, and other back-country
natural resources.\119\
---------------------------------------------------------------------------
\119\ Id.
The danger to the environment from these activities is clear from
---------------------------------------------------------------------------
that report:
The Sonoran Desert boasts the highest biological variety of any
North American desert. These two National Monuments exemplify
this tremendous diversity. The striking vegetation protected by
these monuments--saguaro cacti, palo verde, ironwood and
mesquite trees, wildflowers--shape the iconic images of the
American Southwest. The Monuments also protect a record of
human habitation dating back more than 10,000 years. These
delicate sites are easily disturbed by off-road travel.
Border-related impacts are also felt on other significant
public lands near the international border such as the San
Pedro Riparian National Conservation Area and Las Cienegas
National Conservation Area. Both areas contain intact examples
of river and stream habitats that are rare in the Southwest.
These riparian areas can also serve as expedient routes for
illegal activity.\120\
---------------------------------------------------------------------------
\120\ Id.
Cutting the rate of illicit cross-border traffic is critical to
protecting these endangered artifacts and environmental treasures.
Facilitating the law-enforcement activities of the Border Patrol will
deter this flow of traffic, and ensure that these Federal lands are
maintained in their natural state. Any law or regulation that impedes
the Border Patrol's work, but no matter how well-meaning, will thus
adversely affect the environment in both the short and long run.
dangers to national park service employees
Not all of the dangers posed by cross-border incursions involve the
environment, however. I would be remiss if I were not to mention at
this point the sacrifice of Park Ranger Kris Eggle. As the National
Park Service describes \121\ his life:
---------------------------------------------------------------------------
\121\ Kris Eggle, U.S. Nat'l Park Service (updated May 24, 2016),
available at: https://www.nps.gov/orpi/learn/historyculture/kris.htm.
Kristopher William Eggle was a Law Enforcement Park Ranger from
Cadillac, Michigan. He was an Eagle Scout, a National Honor
Society Student, and valedictorian of his graduating class at
Cadillac High School in 1991. After high school, he attended
University of Michigan and earned a degree in wildlife biology.
Kris approached his entire life with a kind of contagious
enthusiasm that could only inspire everyone who knew him. He
constantly gave of himself without ever asking for anything in
---------------------------------------------------------------------------
return.
*****
In the wake of 9/11, Kris protected his country by intercepting
thousands of pounds of illegal drugs, and guarding a 30-mile
stretch of the nation's southern boundary.
Kris Eggle was shot and killed in the line of duty at Organ
Pipe Cactus National Monument, on August 9, 2002 while pursuing
members of a drug cartel who fled into the United States after
committing a string of murders in Mexico.
He was 28 years old.
The dangers facing Park Rangers generally was highlighted by a
January 2012 article \122\ in the Seattle Times, captioned ``Park
rangers' jobs increasingly dangerous.''
---------------------------------------------------------------------------
\122\ Craig Welch, Park rangers' jobs increasingly dangerous,
Seattle Times (Jan. 2, 2012), available at: https://
www.seattletimes.com/seattle-news/park-rangers-jobs-increasingly-
dangerous/.
---------------------------------------------------------------------------
While that article discussed the risks faced by Park Rangers
nationwide, it specifically quoted \123\ then-NPS chief spokesman David
Barna, who stated: ``In California and along the border between us and
Mexico, we still fight drug cartels growing marijuana.. . .'' It also
noted: \124\ ``The job, like many in Federal law enforcement, has
become more complex in recent years. With 22 parks along international
borders, there are more homeland-security issues.''
---------------------------------------------------------------------------
\123\ Id.
\124\ Id.
---------------------------------------------------------------------------
Moreover, as this committee's own website \125\ states: ``National
parks and forests have become some of the most dangerous and violent
areas along the border where shootings, robberies, rapes, murders,
kidnappings and car-jackings frequently occur.''
---------------------------------------------------------------------------
\125\ Securing our Border on Federal Lands: Problem Overview, House
Comm. on Natural Resources (undated), available at: https://
naturalresources.house.gov/info/borderoverview.htm.
---------------------------------------------------------------------------
The dangers that Park Rangers and the public face from cross-border
criminals must be recognized, and eliminated.
the role of border patrol enforcement in protecting the environment and
land-management agency employees
It is plain from the foregoing that stemming the flow of illegal
border crossings serves to protect the environment, to prevent the
adverse ecological impacts of cross-border traffic, and protect land-
management agency employees.
The work of the Border Patrol is key to protecting the environment,
as the testimony \126\ of Jon Andrew, the Interagency Borderlands
Coordinator for DOI before this Subcommittee in April 2016 made clear:
---------------------------------------------------------------------------
\126\ Border Security: Consequences of Federal Lands Management
Along the U.S. Border to Rural Communities and National Security:
Hearing Before the House Comm. on Natural Resources, Subcomm. on
Oversight and Investigations, 114th Cong. (2016) (statement of Jon
Andrew, Interagency Borderlands Coordinator, Dep't of the Interior),
available at: https://www.doi.gov/ocl/border-security-1.
The deployment of CBP personnel, equipment and infrastructure
along the southwest border has led to significant improvements
in border security. These improvements have both enhanced the
security of our nation, and lead to overall healthier
conditions on Interior lands along the border. Many of the
natural and cultural resources under Interior's responsibility
have been adversely affected by illegal activities due to
accumulations of trash, establishment of illegal roads and
trails, and overall degradation of the environment. By
deploying personnel, equipment, and infrastructure, CBP
operations have reduced cross-border illegal activity and the
environmental impacts of this illegal activity in a number of
---------------------------------------------------------------------------
areas.
Examples of infrastructure put in place by CBP include: Remote
Video Surveillance System towers, Integrated Fixed Towers,
rescue beacons, housing for Border Patrol agents, Forward
Operating Bases (FOB), equipment storage facilities, horse
corrals and mobile surveillance systems such as the Ground
Based Operational Surveillance System (GBOSS) used in Arizona.
In his testimony, Mr. Andrew emphasizes the cooperation between DOI
and the Border Patrol in these efforts:
Tactical communication needs are critical to the security of
Border Patrol agents and Interior personnel and we have worked
closely to assure adjustments can be made in placement and
maintenance of these facilities when they are present on
Interior managed lands. Maintenance of roads and fences have
also become more routine through issuance of permits and
rights-of-way by Interior's land managing agencies.
During deployment of additional border security resources,
Interior worked closely with the Border Patrol to avoid or
mitigate impacts to the environment by coordinating border
security work with local federal land managers. These
mitigation activities have had no impact on the ability of the
Border Patrol to protect the border.
We have made and are continuing to make significant progress
and we recognize DHS's leadership on these issues.\127\
---------------------------------------------------------------------------
\127\ Id.
It is clear from the foregoing that to the Border Patrol has
demonstrated respect for the environment and for protecting our
national treasures on Federal lands along the border.
I am not as confident as Mr. Andrew, however, about the effect that
the agency's cooperation with DOI has had on its enforcement
activities. Given the dangers that Border Patrol Agents face on a daily
basis, and the numerous contingencies that they must constantly deal
with in carrying out their mission, clear, unimpeded authority should
be given to the Border Patrol to access and move on Federal land,
without restriction, to enable them to carry out their statutory
duties.
As stated above, facilitating the ability of Border Patrol agents
to perform their duties is critical not only to preventing the illegal
entry of aliens into the United States, but also to keeping drugs and
criminals off of American streets, and to ensuring that individuals who
seek to harm our country and our citizens are not able to do so. It is
also crucial to protecting the environment from the effects of illegal
cross-border traffic, as well as protecting land-management agency
employees.
Congress must carefully review any laws that impede the Border
Patrol in its law enforcement efforts, and in particular any laws that
inhibit, impede, or delay access and movement by the Border Patrol to
any section of the border the agency deems necessary to carry out its
duties. Border Patrol must not only be allowed to move freely along the
border, but it must also have the ability, in a timely manner, to
construct, install, and relocate the necessary tactical infrastructure
to respond to cross-border threats.
It is incumbent upon Congress to assess whether any laws that
inhibit such movement or the employment of such infrastructure should
be restricted or waived, at a minimum to the extent necessary to ensure
that the critical mission of the Border Patrol is unhindered and
successful.
congressional action
Again, given the sophistication and the violent nature of the
criminal groups controlling illicit cross-border traffic, Border Patrol
must have the ability to react in a timely manner to any incursion. It
is impossible to know whether a group of individuals crossing the
border illegally are coming here to work, are carrying drugs, or pose a
risk to the American people until they are intercepted. Congress must
ensure that Border Patrol has that ability.
At a minimum, Congress should review the 2006 MOU among DHS, DOI,
and USDA, and assess in full the impact of that MOU on the Border
Patrol's ability to perform its mission on Federal land at and near the
southwest border.
I would argue, however, the Congress should go further, and pass
legislation to make clear that the Border Patrol has full, unfettered
access of movement on Federal land, as well as unfettered access to
erect tactical infrastructure and maintain access roads across such
land.
For that reason, I would support implementation of Division C,
Title I, Subtitle A, section 1118 in H.R. 4760, the Securing America's
Future Act of 2018.\128\ That provision would prohibit interference
with CBP on covered Federal land to execute ``search and rescue
operations,'' ``patrol the border area, apprehend illegal entrants, and
rescue individuals,'' and to ``design, test[], construct[], install[],
deploy[], and operat[e] . . . physical barriers, tactical
infrastructure, and technology pursuant to section 102 of '' IIRIRA . .
..'' \129\
---------------------------------------------------------------------------
\128\ Securing America's Future Act, H.R. 4760, 115th Cong. div. C,
tit. I, subtit. A, Sec. 1118 (2018).
\129\ Id.
---------------------------------------------------------------------------
As stated above, Border Patrol has shown itself able to both
perform its duties and to protect the environment. Further, as stated,
the performance of those duties actually supports the efforts of the
land-management agencies in protecting vulnerable environmental areas
from the abuse inherent in illegal cross-border traffic.
I would also support section 1120 in that subtitle, ``Eradication
of Carrizo Cane and Salt Cedar.'' That section would direct the
eradication of ``the carrizo cane plant and any salt cedar along the
Rio Grande River that impedes border security operations.''
Finally, I would support section 1111 in that subtitle, which,
inter alia, would amend 8 U.S.C. Sec. 1103(c) note to give the
Secretary of Homeland Security waiver authority to include:
[A]ll legal requirements the Secretary, in the Secretary's sole
discretion, determines necessary to ensure the expeditious
design, testing, construction, installation, deployment,
operation, and maintenance of the physical barriers, tactical
infrastructure, and technology under this section.
The agencies of the United States government are all playing on the
same team when it comes to protecting the American people, our national
security, and the environment. It is up to Congress to help them
understand that fact.
______
Mr. Westerman. The Chair now recognizes Mr. Bell to testify
for 5 minutes.
STATEMENT OF DAN BELL, PRESIDENT, ZZ CATTLE CORPORATION,
NOGALES, ARIZONA
Mr. Bell. Chairman Westerman, Ranking Member McEachin, and
members of the Committee, good morning. My name is Daniel Bell.
I am a third-generation rancher from Nogales, Arizona. Our
family has been ranching on the same piece of country just west
of the city of Nogales since the late 1930s. The ranch has
approximately 10 miles of actual border with Mexico, 2 miles of
bollard fence, a few hundred yards of vehicle barrier, and the
remaining 8 miles is a four-strand barbed wire fence.
In the mid-1990s, illegal border crossers impacting the
ranch were at an all time high. Groups of 50 or larger were
being apprehended at any given time. Violence along the border
was also spiking.
In 1998, Border Patrol Agent Alexander Kirpnick was
murdered by drug smugglers on our ranch. On May 12, 2010, the
ranch foreman from Mexico, our neighboring ranch in Mexico, was
murdered and found in a shallow grave. On December 17, 2010,
Border Patrol Agent Brian Terry was murdered on our neighbor's
ranch directly to the north of us. And on March 27 of 2010, my
friend, Rob Krentz, was murdered on his ranch in Cochise
County.
With the increase in illegal border crossers came an
increase in fire frequency on the ranches along the border.
Failure to extinguish warming fires, fires lit for those in
distress, and fires lit by smugglers to create diversions were
common. Year after year, fires started by illegal border
crossers have cost the U.S. taxpayers millions upon millions of
dollars.
Much of our time on the ranch is spent fixing fences cut by
illegal border crossers, dealing with trespass cattle from
Mexico, and fixing water developments illegal border crossers
have broken, leaving livestock and wildlife to suffer. Trash
left behind by illegal border crossers is a huge problem. We
have literally picked up many tons of discarded duffel bags,
backpacks, clothing, water bottles, and hauled them off to the
landfill, only to find them trashed again several months later.
The trash left behind can be dangerous to curious livestock
as well as wildlife. The situation on the ground is not good
for wildlife, yet the environmental groups will throw out
concerns for wildlife and endangered species to thwart border
security. In many cases, the Endangered Species Act is being
misapplied to species occupying the border region. More often
than not, they are abundant and healthy throughout their
extensive range in Mexico and as far south as South America.
Along the same lines, the wilderness designations along the
border have the effect of creating unenforceable corridors and
pathways into the United States. Vehicle access and the use of
mechanized and motorized equipment are not permitted. These are
the areas that tend to be the most heavily used drug
trafficking routes. Access, infrastructure, and roads are
drastically needed along the international boundary with
Mexico. These measures will reduce the footprint of illegal
border activity and benefit the natural resources.
Implementing border projects on federally owned borderland
is a lengthy process. In 2001, the Border Patrol had a desire
to build a 4-mile long road along the border on our ranch.
Actual construction began in 2011. As of today, we can see
light at the end of the tunnel, nearly 17 years later.
In recent years, there has been an added emphasis on
streamlining the process and implementing projects in a timely
manner on the Coronado National Forest, and they have
designated a border liaison to assist Border Patrol in planning
and implementation. The Coronado Forest and the Border Patrol
are to be commended for the many recent accomplishments along
the border we see today. I can attest to the effectiveness of
these measures and how illegal activity has been reduced where
law enforcement has been given more access to the border. This
in turn produces the footprint of law enforcement which has a
positive effect on the environment.
I believe that this is a good model that other Federal
agencies and state land management agencies need to adopt. Over
the years, I have witnessed the construction of 2 miles of
bollard-style fence, 4 miles of road systems along the
international boundary, the placement of remote video
surveillance system towers and integrated fixed towers.
Also, new border roads have enabled wildland firefighters
to respond rapidly and get control of fires. Continuing to
establish better access roads along the international boundary
with Mexico is vital. Being able to get to the border is
paramount, if one expects to defend it.
There is still work to be done on what is probably some of
the most challenging terrain encountered along the border. It
will not be easy, but I have faith we will get it done. I have
witnessed significant improvements over the past decade and it
coincided with implementation of the measures that I have
mentioned here today.
Thank you for your time and allowing me to come before you
today.
[The prepared statement of Mr. Bell follows:]
Prepared Statement of Daniel G. Bell, President, ZZ Cattle Corporation,
Nogales, Arizona
Good morning my name is Daniel G. Bell. I am a third-generation
rancher from Nogales, Arizona and President of the ZZ Cattle
Corporation. I am a University of Arizona Graduate with a Bachelor of
Science Degree in Renewable Natural Resources, with emphasis in
Rangeland Management. Our family has been ranching on the same piece of
country since the late 1930s. The ranch is located west of the city of
Nogales, Arizona, along the border with Mexico. The ranch is located
within the Nogales Station area of responsibility in the Tucson Sector
of the Border Patrol.
Our ranch is nearly 40,000 acres (62.5 sq. mi.) in size and has
approximately 10 miles of actual border with Mexico. Apart from a 2-
mile stretch of Bollard Fence and a few hundred yards of vehicle
barrier, the remainder of the international boundary with Mexico is
comprised of a 4-strand barb wire cattle fence. The ranch consists
primarily of four Federal grazing permits with the USDA forest service,
three of which are situated directly on the international boundary with
Mexico. The ranch also utilizes private land and Arizona State Trust
Land. The entire ranch is subject to negative impacts revolving around
illegal border crossers and drug smuggling.
While there have always been impacts regarding illegal border
crossers and drug smuggling on the ranch, things changed drastically in
the 1990s! With the implementation of Operation Gatekeeper in
California and Operation Hold the Line in Texas, illegal border traffic
was essentially forced into Arizona. The increased illegal border
traffic forced our border cities and towns to fortify fencing along the
border, which in turn forced the illegal activity on to the adjacent
ranch lands. The areas where it was once common to see one or two
illegal border crossers, exploded into groups ranging in the number of
50 or more. With that increase, came increases in property damage,
theft, fire frequency and violence. Our fences were being cut, watering
facilities were being tampered with and drained, our houses were being
broken into and valuables were taken. We even had vehicles stolen. On
one occasion, the wife of one of our employees was forced at knife
point to prepare meals for a small group. Upon arriving home, our
employee tracked the illegal border crossers and led authorities to
their location.
Over the years, violence in the border region had been on the
increase. Nogales Station agents had been fired upon and in a few
incidents, agents were wounded by apparent sniper style shootings. In
1998, Border Patrol Agent Alexander Kirpnick was murdered as he was
apprehending drug smugglers in one of our grazing pastures. On March
27, 2010 while checking livestock, watering facilities and fences, my
friend Rob Krentz was murdered on his ranch in Cochise County. On May
12, 2010, the ranch foreman from the neighboring ranch in Mexico was
found murdered and buried in a shallow grave after he had gone missing
a month earlier. On December 17, 2010, Border Patrol Agent Brian Terry,
a member of BORTAC, the elite tactical unit of the Border Patrol, was
murdered on the neighboring ranch to the north. His team was in the
area to rid the area of violent rip-off crews that were targeting
illegal border crossers and drug carriers.
In addition to an increase in violence over the years, fire
frequency had also increased on the ranches along the border. Failure
to extinguish warming fires, along with fires lit by illegal border
crossers in distress, and fires lit by smugglers to create diversions
were most common. In the mid 2000s, an unoccupied house on the Bear
Valley portion of our ranch was set ablaze by undocumented aliens when
they attempted to light the propane powered lights. In 2011, we
experienced one of the worst fire seasons ever. I believe there were 13
different fires that year that burned approximately two-thirds of the
entire ranch. Only one of those fires was considered a naturally caused
fire, all the others were either diversion fires or distress fires. In
the years that followed, there have been many more fires started by
illegal border crossers that have cost the U.S. taxpayers millions upon
millions of dollars to extinguish.
Because the ranch relies on only the grass production from summer
monsoon rains, we utilize rotational grazing systems that allow for
different seasons of use and rest. Each grazing permit is divided into
fenced pastures and the livestock are moved into fresh pastures upon
reaching a specified utilization level. Under normal circumstances this
is a substantial undertaking with 4 separate herds and 30 pastures.
When you ranch on or near the border you can expect that fences will be
cut by illegal border crossers on a regular basis, causing ranchers to
constantly inspect fences to ensure cattle remain in the proper
pasture. Also, when the international boundary with Mexico is a 4-
strand barb wire fence, you can expect to experience problems with
trespass cattle from Mexico, which also takes considerable time and
effort to get the cattle back to our Mexican neighbors. The rancher
bears the cost of the damage at the hands of those engaged in the
illegal border activity.
When you live in and operate a ranch in an arid environment, water
is an essential piece in the health and welfare of livestock, as well
as the wildlife that have grown accustomed to the water we provide.
Most of the water systems located on the ranch are outfitted with water
faucets to allow anyone to get drink. Unfortunately, illegal border
crossers have in many instances broken the water developments and
drained thousands and thousands of gallons of water. Again, the rancher
bears this cost, as well as, livestock and wildlife dependent on this
vital resource.
Several years ago, we participated in a University of Arizona study
that estimated the additional costs that border ranchers face in the
wake of illegal immigration. What the study indicated is that for every
100 pounds of weight that a calf puts on over its life on the ranch,
there is an additional $15.00 in cost to the rancher. Those are the
costs that I mentioned above. The average weight of a steer or heifer
when marketed is 500 lbs which equates to $75.00 per head. If a ranch
sold 300 head, it would equate to $22,500.00 which is a substantial
additional cost.
In addition to the additional costs, the trash left behind by
illegal border crossers is a huge problem. We have literally picked up
many tons of discarded duffle bags, back packs, clothing, water bottles
and hauled it off to the landfill, only to go to the same spot a few
months later and clean it up again. In recent years trash has been
bagged up and hidden in shrubs to conceal the movement of the illegal
border crossers. The trash left behind is not only unsightly but also
can be dangerous to livestock and wildlife. Curious animals have been
known to eat plastic bags containing remnants of food. Cloven hooved
animals like deer, javelina and cattle have had issues with food
containers like tuna and sardine cans. The cans get stuck on an
animal's foot and eventually wear through the bottom of the can,
causing it to ride up the animal's leg and eventually constrict the leg
as the animal grows.
Where border security measures are lacking, the situation on the
ground is not a good for wildlife, yet ``radical environmental groups''
will throw-out concerns for wildlife and endangered species to thwart
border security. Much of the area along the border is fringe habitat
for so-called threatened and endangered species. In many cases, the
Endangered Species Act (ESA) is being misapplied to species that are
abundant and healthy throughout their extensive range in Mexico and as
far as South America. There is a definite double standard when the
border is used to define a species' limited range in the United States
to garner protections under ESA, but in the next breath we are told you
can't have border security because wildlife species do not recognize
borders.
Along the same lines wilderness designations and natural areas
along the border have the effect of creating unenforceable corridors
and pathways into the United States, where vehicles, as well as
mechanized and motorized equipment are not permitted. In fact, these
areas are the most heavily drug trafficked routes on the ranch. We have
had chance encounters with armed drug smugglers and their human mules
in the Pajarito Wilderness and a local chapter of the Boy Scouts of
America will not go backpacking in the area after an encounter they had
on one of their field days. Wilderness areas that limit access are
available to Border Patrol Agents on only foot or horseback.
Access and infrastructure in the form of roads is drastically
needed along the border, otherwise the area of operation remains
unwieldy. By creating better access along the international boundary,
the footprint of illegal border activity will be greatly reduced.
With better access, infrastructure like barriers, walls and fences
can be constructed. Better access will also facilitate implementation
of technology in the form Remote Video Surveillance Systems (RVSS),
Integrated Fixed Towers (IFTs) and Mobile Surveillance Capable (MSC)
Vehicles. Agents will be more efficient in securing the border when the
area they are responsible for patrolling is significantly reduced.
The reality of gaining access and constructing infrastructure along
the border on Federal lands is a lengthy process and it needs to be
streamlined. In 2001, Border Patrol had a desire to build a 4-mile
road, referred to by some as the 222-interconnector road, along the
border on our ranch. Actual construction began in 2011 and as of today
there is light at the end of the tunnel, nearly 17 years later. In
recent years there has been added emphasis on streamlining the process
and implementing projects in a timely manner. For several years now,
the Coronado National Forest has had a liaison assigned, to assist
Border Patrol and try to streamline projects on the Forest.
The Nogales Ranger District and the Border Patrol are to be
commended for many of the recent accomplishments along the border
today. I can attest to the effectiveness of these measures and how
illegal traffic has been reduced in areas where law enforcement has
been given more access to the border. That access reduces the footprint
of the illegal activity as well as the footprint required for law
enforcement, which is a positive for the environment. I believe that
this is a good model that other Federal and state land management
agencies need to adopt.
Until access and infrastructure can be established in rugged and
remote areas, it is extremely important that we do not lose focus of
the other important aspects of border security. Air assets like
helicopters, and fixed wing aircraft, as well as drones, need to be
available to detect illegal activity. Providing support from above,
inserting agents, guiding them to intercept points, and providing the
much-needed situational awareness.
Another area of importance, especially in remote areas is the lack
the necessary communications technology for both law enforcement and
civilians. This is important as there are citizens out recreating in
the forest despite the travel caution signage warnings of smuggling and
illegal immigration in the area.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Of course, the most crucial factor is having boots on the
ground, in the right place and at the right time to intercept illegal
activity. In rugged areas Border Patrol must increase horse patrols and
establish Forward Operating Bases in remote areas which have been
effectively used in the past.
Funding State and Federal Attorneys' Offices must be adequate to
assure timely prosecution of border related offenses. As part of that,
ensuring that there are judicial resources in place to provide
consequences to offenders is imperative.
Border Patrol Ranch Liaison Programs to address concerns and gather
intelligence. I am fortunate to be a part of the Citizens Advisory
Boards and the Rancher Liaison Group for the Nogales Border Patrol
Station. It gives me the opportunity to address security issues in
areas of our operation and allows Border Patrol the ability to
communicate with the public and the folks most affected by illegal
activity. I view these groups as another sort of metric.
My focus here today is to highlight what I consider to be useful
and positive measures to help secure the border and the lands we work
on. Measurables like creating access and establishing roads along the
international boundary with Mexico. Being able to get to the border is
paramount if one expects to defend it. Border Patrol has done an
excellent job in many areas along the border and in my estimation the
easier areas have been addressed. What remains on the table is probably
some of the most challenging terrain encountered along the border, most
of which has no vehicle access. It will not be easy, but I have faith
it will get done.
Over the last decade, I have witnessed the construction of 2 miles
of a Bollard style fence, focusing attention to the international
boundary with Mexico. The fence construction improved range condition
by eliminating the constant flow of illegal border crossers that
created havoc with trails and left trash throughout the landscape. It
only took the resource a short time heal and become productive once
again.
In establishing 4 miles of road systems along the international
boundary and simultaneously erecting RVSS Towers and Integrated Fixed
Towers, the traffic patterns were again changed nearly overnight with
the flick of switch. We were no longer getting the traffic at the ranch
headquarters 7 miles from the border. Again, we were witness as the
range responded and trails healed. We also noticed that there were less
trespass cattle from Mexico as cuts in the barb wire fence were fewer.
I even queried friends who lived in the unincorporated community of Rio
Rico on the northern boundary of the ranch and asked if they were
experiencing the same reductions in activity, to which the answer was
yes.
In the areas with better access to the border there is a notable
reduction in fire frequency and with less incidence of fire spreading
as the roads have enabled wildland firefighters to respond and get
control of fires.
As I have stated before. I have witnessed improvement over the past
few years in certain areas and it has coincided with the implementation
of the measures that I have mentioned to you here today.
Thank you for your time and allowing me to come before you today!
______
Mr. Westerman. The Chair now recognizes Mr. Nicol to
testify for 5 minutes.
STATEMENT OF SCOTT NICOL, CO-CHAIR, SIERRA CLUB BORDERLANDS
CAMPAIGN, THE SIERRA CLUB, McALLEN, TEXAS
Mr. Nicol. Thank you.
I am the volunteer Co-Chair for the Sierra Club Borderlands
Team, and I live and teach in McAllen, one of the safest cities
in the state of Texas. My house is 12 miles north of a section
of border wall. The actual border is another mile further
south. The wall south of my home cuts off a World Birding
Center, established to attract eco-tourism dollars to a
community in one of the poorest counties in the United States
from an adjacent U.S. Fish and Wildlife refuge. And like most
of the rest of the 654 miles of border that already have a wall
or barrier, it was built without regard for local, state, and
Federal laws meant to protect the environment and border
communities like mine.
The authority given to DHS to selectively disregard laws it
deems inconvenient when it builds walls along either the U.S.-
Mexico or U.S.-Canada border should not be expanded to cover
all enforcement activities on all Federal lands within 100
miles of both borders, as has been proposed. The laws that are
swept aside are not merely red tape, they are critical
protections that were put in place for a reason, to protect
people, their communities, and the environment.
The levee border wall that stands 12 miles south of my home
is a prime example. Twenty-seven laws were waived to expedite
its construction. The pre-existing levee was essentially a pile
of earth with a gentle slope on either side that terrestrial
animals could easily surmount. To convert it into a levee
border wall, the river-facing side was carved away and replaced
with an 18-foot tall vertical concrete slab.
Like many of the levee border walls in the Rio Grande
Valley, this one cuts off a portion of the lower Rio Grande
Valley National Wildlife Refuge, which was intended to provide
habitat for endangered ocelots, a small wild cat. A year after
the levee wall's completion, flooding of the Rio Grande
inundated farmlands and refuge tracts for 3 to 4 months. Where
sloping levees had been converted into levee border walls, the
U.S. Fish and Wildlife reported that, ``The floodwall blocked
almost all egress for terrestrial wildlife species.. . .
Hundreds of shells of Texas tortoise have been found
demonstrating the probability of mortality for species which
could not retreat from rising water levels. The Service fears
any ocelots or jaguarundi that may have been caught in these
areas when water began to rise may have been malnourished,
injured, or perished.''
Other walls have been built without regard for laws that
protect people from unnecessary flooding. We have seen
devastating floods in communities like Nogales and in protected
natural areas such as Organ Pipe Cactus National Monument. When
walls are built across our rivers, arroyos, and flash flood
zones, they catch debris, back up water as much as 6 feet deep,
and cause massive damage.
The Native American Graves Protection and Repatriation Act
was also waived when barriers were built in the Tohono O'odham
Nation in southern Arizona. Chairman Ned Norris, Jr. testified
that during the building of border barriers, ``Fragments of
human remains were observed in the tire tracks of the heavy
construction equipment. Barriers of the border road now cross
the site. Imagine a bulldozer parking in your family graveyard
turning up bones.''
The expansion of waivers to cover not only the construction
of walls along the border but any Border Patrol or Customs and
Border Protection activity on Federal lands within 100 miles of
the U.S.-Mexico and U.S.-Canada border would add to the
unnecessary damage.
In 2011, Ron Vitiello, who is currently the Acting Deputy
Commissioner of Customs and Border Protection, testified that,
``In law enforcement, we operate within the confines of the
rule of law and regulations. Would our efforts be easier
without these legal frameworks? Yes, it would. However, we find
a way to reasonably and sensibly solve problems within the
parameters of law. Does the Border Patrol face challenges with
respect to operating around protected lands when they are in
our enforcement zones? Yes. But, again, we have been able to
establish practical solutions to allow for mission success.''
Laws have also been waived for patrol roads along the
border. In addition to causing environmental harm, carving a
road through a formerly roadless locale can make that area more
accessible to drive-throughs by smugglers. This occurred in the
San Bernardino National Wildlife Refuge, which stated in its
2008 annual report that newly installed tactical
infrastructure, ``Allowed vehicles loaded with marijuana to
drive into the United States, using the new system of all-
weather roads constructed by DHS. Drive-through drug loads have
subsequently increased in the San Bernardino Valley.''
So, the waiving of laws has proved to be environmentally
destructive, and by short-circuiting the normal deliberative
process, has allowed for counter-productive activities to be
undertaken. It has also hurt borderland communities.
Thank you.
[The prepared statement of Mr. Nicol follows:]
Prepared Statement of Scott Nicol, Sierra Club Borderlands Team Co-
Chair, McAllen, Texas
My name is Scott Nicol. I am the Volunteer Co-Chair for the Sierra
Club's Borderlands Team and I live and teach in McAllen, one of the
safest cities in the state of Texas. My house is 12 miles north of a
section of border wall; the actual border is another mile further
south. The wall south of my home cuts off a World Birding Center,
established to attract eco-tourism dollars to a community in one of the
poorest counties in the United States, from an adjacent U.S. Fish and
Wildlife Refuge. Like most of the rest of the 654 miles of border wall
that currently stand, it was built without regard for local, state, and
Federal laws meant to protect the environment and border communities
like mine.
The authority given to the Department of Homeland Security to
disregard laws it deems inconvenient when it comes to border walls
along both the U.S.-Mexico and U.S.-Canada border should not be
expanded to cover all enforcement activities on all Federal lands
within 100 miles of both borders, as has been proposed. This flies in
the face of the basic tenet that the United States is a nation of laws,
and sets a terrible precedent that could be applied to other
destructive Federal projects.
But the biggest problem with waiving laws is not judicial or
philosophical, it is concrete. The laws that are swept aside are not
merely red tape. They are critical protections that were put in place
for a reason--to protect people, their communities, and the environment
that we depend upon.
The levee-border wall that stands 12 miles south of my home is a
prime example. In 2008, 27 laws were waived to ``expedite''
construction, and it was completed in 2009. The pre-existing levee was
essentially a pile of earth with a gentle slope on either side that
terrestrial animals could easily surmount. To convert it into a levee-
border wall, the river-facing side was carved away and replaced with an
18-foot tall vertical concrete slab. It is a barrier that is readily
climbed by humans, as the ever-replenishing piles of ladders that still
accumulate beside it attest to, but which animals that don't have wings
or ladder technology cannot get past.
Like many of the levee-border walls in the Rio Grande Valley, this
one cuts off a portion of the Lower Rio Grande Valley National Wildlife
Refuge, which was intended to provide habitat for endangered ocelots, a
small wildcat with spots resembling a leopard's. With the Endangered
Species Act and the National Environmental Policy Act waived, the
wall's impact upon ocelots was detrimental.
A year after the levee-wall's completion, the Rio Grande flooded,
backing water up to the levees and inundating farmlands and refuge
tracts for 3 to 4 months. Where sloping levees had been converted to
levee-border walls, U.S. Fish and Wildlife reported that:
``The floodwall blocked almost all egress for terrestrial
wildlife species. [. . .] Hundreds of shells of Texas Tortoise
have been found demonstrating the probability of mortality for
species which could not retreat from rising water levels. The
Service fears any ocelots or jaguarundi that may have been
caught in these areas when water began to rise may have been
malnourished, injured, or perished.'' \1\
---------------------------------------------------------------------------
\1\ Rationale and Justification for Conservation Measures Rio
Grande Valley Sector. U.S. Fish and Wildlife Corpus Christi Ecological
Services Field Office. March 9, 2011.
The decision to waive laws in order to build border walls has
caused harm that might otherwise have been avoided.
Walls have been built without regard for laws that protect people
from unnecessary flooding. We have seen devastating floods in
communities like Nogales and in protected natural areas such as Organ
Pipe Cactus National Monument. When walls are built across our rivers,
arroyos and flash flood zones, they catch debris, back up water as much
as 6-feet deep, and cause massive damage.
In 2008, flooding caused by the border wall in Nogales, Sonora,
caused millions of dollars of property damage and was responsible for
two deaths. Following that event many walls were retrofitted with gates
that were intended to allow water and debris to pass through, but in
2011 and 2014 those measures failed to stop debris from piling up,
flood water building up, and sections of border wall being washed away.
The Native American Graves Protection and Repatriation Act is, as
its title implies, intended to prevent the desecration and destruction
of Native American burials, a goal which one might assume would be
widely shared. But when waivers were issued for border barrier
construction through the Tohono O'odham Nation, the Native American
Protection and Repatriation Act was suspended in the project area. The
compilation of a list of laws that are to be waived implies a degree of
forethought, as there is no reason to waive a law that border barriers
or roads are unlikely to violate.
The waiving of the Native American Graves Protection and
Repatriation Act proved prescient. In 2008, Tribal Chairman Ned Norris
Jr. testified that during the building of border barriers:
``. . . fragments of human remains were observed in the tire
tracks of the heavy construction equipment. Barriers and the
border road now cross the site. Imagine a bulldozer parking in
your family graveyard, turning up bones.'' \2\
---------------------------------------------------------------------------
\2\ Norris Jr., Ned. Written testimony of The Honorable Ned Norris
Jr., Chairman Tohono O'odham Nation to the to the Subcommittee on
Fisheries, Wildlife, and Oceans and Subcommittee on National Parks,
Forests, and Public Lands of the House Committee on Natural Resources.
Joint Oversight Hearing ``Walls and Waivers: Expedited Construction of
the Southern Border Wall and Collateral Impacts to Communities and the
Environment.'' U.S. House of Representatives Committee on Natural
Resources. Subcommittee on National Parks, Forests and Public Lands.
Subcommittee on Fish, Wildlife and Oceans. April 28, 2008.
The expansion of waivers to cover not only the construction of
walls along the border, but any Border Patrol or Customs and Border
Protection activity on all Federal lands within 100 miles of the U.S.-
---------------------------------------------------------------------------
Mexico and U.S.-Canada border, would add to the unnecessary damage.
In light of the existing Memorandum of Understanding between
Customs and Border Protection and the Department of the Interior,
granting Border Patrol agents access to Federal lands there is no clear
need to waive laws, environmental or otherwise, to facilitate Border
Patrol activities. In 2011, Ron Vitiello, who is currently the Acting
Deputy Commissioner of Customs and Border Protection, testified that:
``In law enforcement, we operate within the confines of the
rule of law and regulations. Would our efforts be easier
without these legal frameworks? Yes, it would. However, we find
a way to reasonably and sensibly solve problems within the
parameters of law. Does the Border Patrol face challenges with
respect to operating around protected lands when they are in
our enforcement zones? Yes, but again, we have been able to
establish practical solutions to allow for mission success.''
\3\
---------------------------------------------------------------------------
\3\ Vitiello, Ron. ``The Border: Are Environmental Laws and
Regulations Impeding Security and Harming the Environment?'' Joint
Hearing before the Subcommittee on National Security, Homeland Defense
and Foreign Operations of the Committee on Oversight and Government
Reform and the Subcommittee on National Parks, Forests, and Public
Lands of the Committee on Natural Resources. April 15, 2011.
Since Acting Deputy Commissioner Vitiello made this statement, in a
congressional committee hearing discussing a proposal to waive laws on
Federal lands very similar to the one being made today, Border Patrol
---------------------------------------------------------------------------
apprehensions have decreased, and seizures of marijuana have plummeted.
It has been alleged that the need to comply with Federal laws when
new patrol roads are established or existing roads are repaired through
protected Federal lands undermines Border Patrol interdiction efforts.
But in addition to the environmental harm that cutting a road through a
refuge or wilderness area can inflict, carving a road through a
formerly roadless area can make an area that was previously impassable
to smugglers easily accessible. This occurred in the San Bernardino
National Wildlife Refuge, where 10 miles of barrier and patrol roads
were built following the issuance of a waiver. Located in Arizona's
southeastern corner, where the terrain is heavily eroded, with deep
fissures that make much of the area impassable to vehicles.
Nonetheless, in 2008 Customs and Border Protection proposed the
erection of barriers and construction of a graded patrol road through
the area. In response a local stakeholder who had been working with the
Malpai Borderlands Group (an association of ranchers who work together
to restore and maintain natural processes while encouraging ranching
and other traditional livelihoods) warned:
``They are going to open 10 miles-plus of access to illegal
vehicles and Border Patrol vehicles through country that has no
access now. Where there are barriers west of us, the illegals
had already cut them with torches.
The Refuge is being compromised and so is the security of the
U.S.
We are furious that they can't be stopped from building this
road and barriers.
We can't seem to get anyone to see what the damage will be.
Mark my word, within a year there will be so much increase in
traffic and damage that it will never be stopped. Then DHS will
say they can't figure out how to solve the huge breach in our
security.'' \4\
---------------------------------------------------------------------------
\4\ ``Subject: Natural disaster cancels trip . . .'' Sender
redacted. September 17, 2008. Email obtained by the Sierra Club via
Freedom of Information Act request.
Absent the need to comply with Federal laws, construction crews
inflicted tremendous damage that otherwise might have been avoided.
With the Antiquities Act waived, a known archaeological site which
refuge managers had asked workers to avoid harming, was destroyed to
create an equipment staging area. Two bodies of water that are home to
fish listed under the Endangered Species Act were partially filled with
loose dirt in an effort to create a roadbed. A bulldozer sank and got
stuck in the resulting saturated muck in one of the ponds. As
predicted, soon after the barriers and patrol road were constructed
through the previously impassable terrain, refuge staff reported that
the new ``tactical infrastructure'' facilitated, rather than deterred,
illicit cross-border traffic. The San Bernardino National Wildlife
---------------------------------------------------------------------------
Refuge's annual report for 2008 stated that this:
``. . . allow[ed] vehicles loaded with marijuana to drive into
the United States using the new system of all-weather roads
constructed by DHS. Drive-through drug loads have subsequently
increased in the San Bernardino Valley.'' \5\
---------------------------------------------------------------------------
\5\ San Bernardino National Wildlife Refuge, Leslie Canyon National
Wildlife Refuge Annual Narrative Report Calendar Year 2008. U.S.
Department of the Interior, Fish and Wildlife Service, National
Wildlife Refuge System.
So the waiving of laws has not only proved to be environmentally
destructive, by short-circuiting the normal deliberative process, it
has allowed for counter-productive activities to be undertaken. It has
also hurt borderlands communities. With the waiving of protections like
the Clean Water Act and National Environmental Policy Act, towns have
flooded and borderlands residents are left with the aftermath.
Expanding the waiver to include more Federal lands and more types of
---------------------------------------------------------------------------
projects would expand and exacerbate these problems.
______
Mr. Westerman. The Chair now recognizes Mr. Judd to testify
for 5 minutes.
STATEMENT OF BRANDON JUDD, PRESIDENT, NATIONAL BORDER PATROL
COUNCIL, TUCSON, ARIZONA
Mr. Judd. Chairman Westerman, Ranking Member McEachin, and
distinguished members of the Subcommittee, I appreciate the
opportunity to testify today.
The myriad of laws, regulations, and bureaucratic policies
related to federally managed and protected lands prevent Border
Patrol agents in the field from fully doing their job on a
daily basis. Ultimately, these laws undermine our ability to
effectively and efficiently secure our borders, and put the
lives of our agents and the public at greater risk.
The vast majority of apprehensions made by the Border
Patrol occur on the southern border with Mexico. Along this
very same border, roughly 40 percent of the land that makes up
our 2,000-mile long border is designated by the Federal
Government as some type of Federal land. This is land that is
managed, controlled, or protected by multiple agencies spread
across two separate cabinet-level departments, not including
the department responsible for border security.
Simply looking at a map of border areas in California,
Arizona, New Mexico, and Texas, one will see a landscape
blanketed by Federal lands that include national conservation
areas, forests, monuments, parks, recreation areas, scenic
areas, and wildlife refuges. The restrictions that agents face
on these lands on a daily basis are due to a laundry list of
some three dozen laws that date back over a century.
Even with the significant impediments to our work stemming
from these legal requirements and regulations, morale among
rank and file Border Patrol agents is surging, thanks to the
support and backing we have received from the Trump
administration encouraging agents to go out and do the job we
were hired to do.
In fact, from his very first week in office, President
Trump has demonstrated his unwavering commitment to finally
securing our land borders. On January 25 of last year,
President Trump signed Executive Order 13767 to improve border
security and immigration enforcement. Most relevant for the
Subcommittee is Section 12 of the order, which directs the
Secretaries of Homeland Security, Interior, and Agriculture, to
take all appropriate action to ensure that the men and women of
the Border Patrol have access to all Federal lands in order to
secure our land borders.
This important executive action is a crucial step to solve
a problem that has long plagued the Border Patrol and our
ability to do our job.
As Chairman Westerman and Bishop recently saw firsthand,
the challenges created by these legal requirements, rules, and
policies are very real for those patrolling our borders. For
example, in the Coronado National Forest within the Tucson
Sector of Arizona, our inability to build proper access roads
along and near the line, including secondary roads, diminishes
agent mobility while patrolling, and ultimately prevents agents
from being as effective as they could otherwise be.
Because there is no actual east-west border road beyond the
fence, which only stretches a short distance into the forest,
the United States, in essence, has ceded approximately a
quarter mile of U.S. territory to criminal enterprise,
including drug and human traffickers.
While my primary concern is overall border security,
including the safety of agents and the public, I would like to
highlight for the Subcommittee how unintended consequences
stemming from environmental laws meant to protect our natural
resources can have the opposite effect and actually harm the
environment.
For example, in one of my personal experiences in the mid-
2000s, in the Naco area of operations within the Tucson Sector,
the Border Patrol built a continuous fence that was constructed
right up to the San Pedro River within the San Pedro National
Conservation Area. While we were able to continue with the
construction of the fence to the west of this sensitive
riparian area, due to legal restrictions, we had to wait to
complete construction within the conservation area until we had
the required permitting and the environmental impact studies
were complete.
During this long waiting period, the massive hole left in
our fencing allowed criminal enterprises to drive their
vehicles up to the riparian area with absolutely no regard for
this environmentally sensitive area. While we now have some
barriers in place that make it a little more difficult for
criminal enterprises to spoil this riparian area, due to the
difficulty of the laws, the barriers are a far cry from what is
needed and are easily defeated.
Finally, I would like to close by urging Congress to
consider and pass legislation that would solve these very real
problems.
Mr. Chairman, I would like to commend the Subcommittee,
Chairman Bishop, and Congressman Johnson, for your work in
crafting reform language that has been included in H.R. 4760,
Securing America's Future Act. This Committee's contribution to
the broader border security reform is crucial to ensure that
agents have the ability to properly patrol Federal lands and
prevent all unlawful entries into the United States.
Additionally, the Committee may want to consider an
amendment to ensure that Border Patrol efforts to close off
tunnels used by drug and human smugglers are not delayed or
blocked by existing laws. Regardless of this amendment, by
waiving the relevant environmental laws and thus eliminating
the restrictions imposed on Border Patrol, the Committee's
legislation will finally take the handcuffs off the agents and
allow us to simply do our jobs.
I want to thank the Subcommittee, and I look forward to
answering any and all of your questions.
[The prepared statement of Mr. Judd follows:]
Prepared Statement of Brandon Judd, on behalf of the National Border
Patrol Council, Tucson, Arizona
Chairman Westerman, Ranking Member McEachin, and distinguished
members of the Subcommittee, I would like to thank you for inviting me
to testify before you today in order to communicate the significant
challenges that our Nation's Border Patrol Agents are facing,
specifically when patrolling on Federal lands.
My name is Brandon Judd and I currently serve as the President of
the National Border Patrol Council, where I represent approximately
16,000 Border Patrol field agents and support staff. I have 20 years of
experience as a Border Patrol Agent and a thorough understanding of the
policies affecting border security.
While this is my first time testifying before this Subcommittee, I
know that both the Subcommittee and Full Committee have been working
for years to address the issues before us today and I am grateful for
your continued oversight and steadfast dedication to solving these
problems. Thank you for allowing me the opportunity to describe the
current state of the border and how the myriad of laws, regulations and
bureaucratic policies related to federally managed and protected lands
prevent Border Patrol Agents in the field from fully doing their job on
a daily basis. Ultimately, these laws undermine our ability to
effectively and efficiently secure our borders and put the lives of our
agents and the public at greater risk.
As the Subcommittee is undoubtedly aware, the vast majority of
apprehensions made by the Border Patrol occur on our southern land
border with Mexico. Even though we saw apprehension numbers drop to
historic lows soon after President Trump took office, the Border Patrol
still made over 310,000 total apprehensions across the country during
Fiscal Year 2017. Of those 310,000 apprehensions, nearly 304,000 or
roughly 98 percent, occurred along the southwest border.
Along this very same border, roughly 40 percent of the land that
makes up our 2,000 mile-long border is designated by the Federal
Government as some type of Federal land, according to a Government
Accountability Office analysis. This is land that is managed,
controlled or protected by multiple agencies, spread across two
separate cabinet-level departments, not including the Department
responsible for border security.
Simply looking at a map of border areas in California, Arizona, New
Mexico and Texas, one will see a landscape blanketed by Federal lands
that include National Conservation Areas, Forests, Monuments, Parks,
Recreation Areas, Scenic Areas, and Wildlife Refuges. The restrictions
that agents face on these lands on a daily basis are due to a laundry
list of some three dozen laws that date back over a century.
Even with the significant impediments to our work stemming from
these legal requirements and regulations, morale among rank-and-file
Border Patrol Agents is surging thanks to the support and backing we've
received from the Trump administration encouraging agents to go out and
do the job we were hired to do. In fact, from his very first week in
office, President Trump has demonstrated his unwavering commitment to
finally securing our land borders. On January 25 of last year,
President Trump signed Executive Order 13767 to improve border security
and immigration enforcement. Most relevant for the Subcommittee is
Section 12 of the Order which directs the Secretaries of Homeland
Security, the Interior and Agriculture to ``take all appropriate
action'' to ensure that the men and women of the Border Patrol have
access to all Federal lands in order to secure our land borders.
This important executive action is a crucial step to solve a
problem that has long plagued the Border Patrol and our ability to do
our job. Even former President Obama's Homeland Security Secretary
Janet Napolitano acknowledged the significance of the problem when she
wrote in a 2009 letter that:
``While the USBP recognizes the importance and value of
wilderness area designations, they can have a significant
impact on USBP operations in border regions. This includes that
these types of restrictions can impact the efficacy of
operations and be a hindrance to the maintenance of officer
safety. The USBP, in accordance with [a] 2006 MOU [with DOI and
USDA] makes every reasonable effort to use the least impacting
means of transportation within wilderness; however along the
southwest border it can be detrimental to the most effective
accomplishment of the missions. For example, 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.''
While the ``detrimental'' impact to the border security mission is
certainly concerning when reading former Secretary Napolitano's letter,
what I'd like the Subcommittee to focus on for a moment are the real-
life implications for agent safety--something that should be of
paramount concern to everyone. To ever suggest that an agent--who is
likely working alone, probably on terrain making he or she vulnerable
to attack, and almost certainly in a remote location--should wait for
the arrival of agents mounted on horses in order to safely make an
apprehension of an illegal entrant is completely and utterly absurd. I
hope that the Subcommittee would never tolerate policies of this nature
and allow senior agency bureaucrats in Washington to prioritize
possible impacts on the environment over the safety of the men and
women of the Border Patrol. This is of particular concern at a time
when we've seen a dramatic increase in assaults on agents. Just last
year, assaults on Agents were up by 76 percent and totaled 774 for
2017.
With the threats facing agents at an all-time high due to drug
cartels, violent criminal aliens and ever-growing personnel shortages,
the last thing agents need to contend with are the added burdens
created by environmental laws, regulations and memos drafted by
supervisors and managers sitting behind desks. As Chairmen Westerman
and Bishop recently saw firsthand, the challenges created by these
legal requirements, rules and policies are very real for those
patrolling our borders. For example, in the Coronado National Forest
within the Tucson Sector of Arizona, our inability to build proper
access roads along and near the line, including secondary roads,
diminishes agent mobility while patrolling and ultimately prevents
agents from being as effective as they could otherwise be. Because
there is no actual east-west border road beyond the fence, which only
stretches a short distance into the Forest, the United States in
essence has ceded approximately a quarter-mile of U.S. territory to
criminal enterprise, including drug and human traffickers.
While my primary concern is overall border security including the
safety of agents and the public, I'd like to highlight for the
Subcommittee how unintended consequences stemming from environmental
laws meant to protect our natural resources can have the opposite
effect and actually harm the environment. For example, in one of my
personal experiences in the mid-2000s in the Naco Area of Operations
within the Tucson Sector, the Border Patrol built a continuous fence
that was constructed right up to the San Pedro River within the San
Pedro National Conservation Area. This conservation area runs north
from the border and is made up of approximately 57,000 acres of public
land, managed by the Interior Department's Bureau of Land Management.
While we were able to continue with the construction of the fence to
the west of this sensitive riparian area, due to legal restrictions, we
had to wait to complete construction within the conservation area until
we had the required permitting and the environmental impact studies
were complete. During this long waiting period, the massive hole left
in our fencing allowed criminal enterprises to drive their vehicles up
the riparian area along and near the riverbed, with absolutely no
regard for this environmentally sensitive area. While we now have some
barriers in place that make it a little more difficult for criminal
enterprises to spoil this riparian area, due to the difficulty of the
laws the barriers are a far cry from what's needed and are easily
defeated.
Tactical infrastructure and barriers, such as the fencing in Naco,
are crucial to preventing illegal entries and securing our border.
While there has been no shortage of debate and controversy over the
proposed border wall, in my opinion serving in the Border Patrol for
the past 20 years, including in the busiest sector in the history of
the Border Patrol, a wall, in strategic locations is pivotal to
securing our border. Without physical barriers, such as a wall, we're
far less able to dictate and direct where illegal entries are made,
making us less effective and inefficient. A wall in strategic locations
will ultimately lead to far greater effectiveness and allow us to
direct our very limited manpower resources to areas without barriers
and where illegal crossings are more likely to take place. If, in the
coming months and years, new plans and efforts to build physical
barriers are blocked, delayed or otherwise stopped because of these
environmental laws, then the safety and security of our agents and
citizens will suffer greatly.
Finally, I'd like to close by urging Congress to consider and pass
legislation that would solve these very real problems. Mr. Chairman, I
would like to commend this Subcommittee, Chairman Bishop and
Congressman Johnson for your work in crafting reform language that has
been included in H.R. 4760, Securing America's Future Act, sponsored by
Chairmen Goodlatte, McCaul, and Labrador, as well as Chairwoman
McSally. This Committee's contribution to the broader border security
reform effort is crucial to ensure that agents have the ability to
properly patrol Federal lands and prevent all unlawful entries into the
United States. While this legislation is still pending before the
House, I'd like to suggest that the Committee consider amending Section
1118 to ensure that the Border Patrol can conduct proper maintenance of
physical barriers, tactical infrastructure and technology on Federal
lands. Additionally, the Committee may want to consider an amendment to
ensure that Border Patrol efforts to close off tunnels used by drug and
human smugglers are not delayed or blocked by existing laws. Regardless
of these two suggestions, by waiving the relevant environmental laws
and thus eliminating the restrictions imposed on the Border Patrol, the
Committee's legislation will finally take the handcuffs off of agents,
and allow us to simply do our jobs.
I want to thank the Subcommittee for your time this morning and I
look forward to answering any questions that you may have.
______
Questions Submitted for the Record by Rep. Grijalva to Brandon Judd,
President, National Border Patrol Council
Please answer the following questions regarding the 2014 incident
you described in which Border Patrol could not fill a cross-border
tunnel near the San Diego area due to the presence of a bird's nest:
Question 1. What was the specific location of the opening of the
tunnel? Was the opening located on Federal lands?
Answer. Prior to the hearing, Customs and Border Protection (CBP)
management sent one of my consultants an e-mail regarding tunnel
remediation delays stemming from environmental laws. Below are the
relevant portions of the e-mail with the example. The agency is the
entity that provided me with this information and thus allowed me to
use the information if relevant questions were asked at the hearing.
The information provided by CBP does not give the specific location in
San Diego of the opening of the tunnel nor if it was on Federal lands.
I have no additional information regarding the 2014 incident described
by CBP management beyond what was in the e-mail and recommend that you
ask the agency for additional information.
Email from CBP management (bold added for emphasis):
``All tunnel remediations have to go through the NEPA process.
This requirement can and often does delay remediation.'' The e-
mail goes on to mention, ``. . . an incident in 2014 in the SDC
AOR in which a bird nesting in a tunnel delayed a
remediation.''
Last, in order to better assist the Ranking Member and the
Committee in its oversight, I wanted to let the Committee know that
based on additional information provided by CBP, 194 illicit cross-
border tunnels have been discovered nationally since Fiscal Year 2000.
Based on the CBP data, four cross-border tunnels were discovered during
Fiscal Year 2014 in the San Diego Sector.
Question 2. What species of bird occupied the nest near the tunnel
opening? How close was the nest to the tunnel opening?
Answer. Please refer to the answer to Question Number 1. I have no
additional information regarding the 2014 incident described by CBP
management beyond what was in the e-mail and recommend that you ask the
agency for additional information.
Question 3. Which Federal agency directed Border Patrol to postpone
filling the tunnel until the bird's eggs had hatched? Under what
authority or environmental law was this directive given?
Answer. Please refer to the answer to Question Number 1. I have no
additional information regarding the 2014 incident described by CBP
management beyond what was in the e-mail and recommend that you ask the
agency for additional information.
Question 4. How long did the tunnel remain unfilled since being
discovered? How much of this time was due solely to the presence of the
bird's nest?
Answer. Please refer to the answer to Question Number 1. I have no
additional information regarding the 2014 incident described by CBP
management beyond what was in the e-mail and recommend that you ask the
agency for additional information.
Question 5. Was an environmental impact statement required to fill
the tunnel? Has Border Patrol established a categorical exclusion under
NEPA for filling cross borders tunnels? If not, why not?
Answer. Please refer to the answer to Question Number 1. I have no
additional information regarding the 2014 incident described by CBP
management beyond what was in the e-mail and recommend that you ask the
agency for additional information.
Question 6. Has the tunnel since been filled? If not, why not? Is
the portion of the tunnel on the Mexico side of the border filled?
Answer. Please refer to the answer to Question Number 1. I have no
additional information regarding the 2014 incident described by CBP
management beyond what was in the e-mail and recommend that you ask the
agency for additional information.
Other questions for Mr. Judd:
Question 7. What was NBPC's involvement in Mark Morgan's dismissal?
Answer. The first time I was made aware that former Chief Mark
Morgan was being dismissed was on the morning of January 26, 2017 when
CBP Acting Commissioner Kevin McAleenan called me and informed me he
made the decision to remove Chief Mark Morgan from his position as the
Chief of the Border Patrol. There were several NBPC officers with me
when Acting Commissioner McAleenan called me. The call was professional
and appropriate. Acting Commissioner McAleenan knew I would get
numerous questions from the media and he asked that, ``I do not dance
on his grave.'' I am not aware that I or NBPC played a role in Chief
Morgan's dismissal and I certainly never asked Acting Commissioner
McAleenan to remove Morgan.
Furthermore, I am not aware of any statute, regulation or policy
that would have given me, as a GS-12 Border Patrol Agent and President
of the NBPC, or the NBPC itself, the authority to determine the
employment status of any CBP employee, including the Chief of the
Border Patrol. As per the call referenced above with Acting
Commissioner McAleenan, he made it very clear that the decision to
remove Chief Morgan was his and his alone.
At the time he was appointed to be the Chief, Chief Morgan was a
retired Federal employee and was hired to the Chief's post as a rehired
annuitant and therefore did not have the protections of a career
employee. Acting Commissioner McAleenan was free to dismiss him without
the customary formalities because he was not a career employee but
rather was a rehired annuitant.
What is true and is well known is that I, acting on behalf of the
bargaining unit as the President of the NBPC, believed there was a
culture problem in the Border Patrol and continue to hold this belief
to this day. When Chief Morgan was selected, I was informed that he was
selected to bring about a much needed culture change. I was publicly
supportive of his selection but quickly became disenchanted due to the
fact that he surrounded himself with the same management officials who
were the cause of the culture problems. During his short tenure the
culture did change but changed for the worse, as those same people who
were in part responsible for the agency's long-standing culture
problems were emboldened when Chief Morgan failed to make needed
changes. Sadly under his watch there was less accountability in the
agency and that lack of accountability continues to this day.
Question 8. Has NBPC ever condemned the use of excessive force?
Answer. Yes. The NBPC does not and will not condone ``excessive
force.'' Excessive force is against the law and I personally do not
know any Border Patrol Agent who believes it is acceptable for law
enforcement officers/agents to break the law. The NBPC does believe in
due process for all persons including those accused of crossing the
border illegally, as outlined in law, and that also includes any law
enforcement officer/agent accused of excessive force.
Question 9. The FBI has not found any evidence to suggest that the
death of Border Patrol agent Rogelio Martinez was caused by an attack.
What evidence does NBPC use when continuing to characterize this
incident as a ``heinous attack?''
Answer. On Monday, November 20, 2017, El Paso Sector Assistant
Chief Patrol Agent Richard C. Whitman sent an e-mail to one of my
former Local Presidents in which he describes the death of BPA Rogelio
Martinez as a ``heinous attack.'' When speaking with the media since
the incident, I have been using the verbiage given to NBPC by
management officials in the Border Patrol. The following is the text of
the e-mail in its entirety.
``I'm sure you are aware of the LOD death of the BBT agent and
his partner that is in serious condition. While FBI has the
lead, HQ/OBP has directed EPT to throw as much personnel and
resources as possible to assist in locking down that area to
locate the perpetrators of this heinous attack [emphasis
added]. Obviously, this will cause an additional strain on
EPT's already thinly spread staffing. The details on what this
might look like are still being put together. To this end, I
was wondering if the Agency were to grant a blanket extension
on grievances, replies, etc., would you support a moratorium on
official time?''
Furthermore, the morning following Agent Martinez' death a
Supervisory Border Patrol Agent from the El Paso Sector sent the
following text message to several individuals. Please forgive any
punctuation or grammar mistakes, I am quoting the text message
verbatim:
``2 agents got assaulted in Van Horn last night and got
airlifted to UMC. There was a sensor activation and 1 agent
responded went back to his vehicle to call out that the sensor
was good. Not sure what happened after that but I'm hearing he
got jumped by 6 mules and had his face basically smashed in.
2nd agent arrived to help out with trail without knowing 1st
agent had been assaulted and he also got jumped. Word is 1st
agent passed away and 2nd agent is in critical but stable
condition. They r back tracking the group south of van horn.
Everyone's been activated. We sent 3 guys to assist''
As you can clearly see, it was Border Patrol management that
characterized the death of Rogelio Martinez as an attack. NBPC had no
reason to believe the information by the agency itself was incorrect.
______
Mr. Westerman. I say thank you to all of the witnesses for
your testimony.
I would like to remind the members of the Committee that
Committee Rule 3(d) imposes a 5-minute limit on questions. I
will now recognize Members for any questions they may wish to
ask the witnesses. I will recognize myself to start with for 5
minutes.
I also remind the witnesses that we are going to keep this
to 5 minutes per person. We have votes coming up here shortly,
so if we cut you off, it is because we have a lot of questions
we want to ask.
My first question is for the whole panel. There is a
graphic up here, the one on the top left shows a lot of ad hoc
roads along the border. You see examples of the trash that we
talked about in some of these areas.
[Slide.]
In March of 2010, then-Secretary Salazar, while on a border
visit with Ranking Member Grijalva, stated that, and I quote,
``Deterring unlawful activity along the border is the best
option for preventing damage to cultural and natural resources
and minimizing risks to visitors and employees.''
The Fish and Wildlife Service found almost 8,000 miles of
ad hoc roads used by cross-border violators in the Cabeza
Prieta National Wildlife Refuge. Millions of pounds of trash
and waste are collected from layup areas. Wildland fires are
also often ignited by border violators.
I want to ask each of you a simple yes or no question. Do
you agree with Secretary Salazar's statement that deterring
unlawful activity along the border best protects our natural
resources?
Mr. Arthur. Yes.
Mr. Bell. Chairman Westerman, yes.
Mr. Westerman. Mr. Nicol, yes or no?
Mr. Nicol. It is more complicated than that, unfortunately.
Mr. Westerman. Mr. Judd?
Mr. Judd. I do agree, yes.
Mr. Westerman. OK. Mr. Bell, as a third-generation rancher
along the southern border, you have experienced firsthand the
impact illegal activity can have on Federal lands. Can you
briefly describe for us how Border Patrol's increased presence
and infrastructure has improved the health of your grazing
land?
Mr. Bell. We have a permit that we graze cattle on called
the Mariposa, and when we started grazing there, there was so
much illegal activity and trash and trails and trespass from
Mexican cattle, we were unable to actually go in there because
utilization levels of the grass were already hit. Once Border
Patrol established a presence on the border, put in a portion
of the bollard-style fence, we were able to start using that
the next season. It healed that quickly.
Mr. Westerman. OK. Mr. Judd, a 2006 Memorandum of
Understanding between the Department of the Interior,
Agriculture, and Homeland Security attempted to provide
guidance and increase coordination between Customs and Border
Protection and Federal land managers to balance border security
and environmental issues. In what ways is this MOU insufficient
for Border Patrol agents' needs?
Mr. Judd. It is the large bureaucracy that the government
currently has. When we have to go and discuss issues with so
many different agencies to try to make something happen, we see
what happened in the San Pedro riparian area. We weren't able
to build the barriers that were necessary, which allowed the
human and narcotics smugglers to ruin that area for a time
until it was able to heal, which took several years. But to
even put Normandy-style barriers in that area took about 2
years, just to be able to do that.
Mr. Westerman. And, Mr. Arthur, based on your experience
drafting some of the most significant border security laws
since September 11, 2001, what would you change in the 2006 MOU
to ensure that Border Patrol can accomplish its mission on
Federal lands?
Mr. Arthur. I would actually refer to the way that the MOU
operates. Right now, it puts environmental agencies in charge
of border security. Law enforcement should be the entity that
actually controls the process rather than the other way around.
Mr. Westerman. OK. Mr. Judd, as mentioned in my opening
statement, during my visit to the southern border, we heard
from Border Patrol about tunnels being used for drug smuggling,
and you referenced that as well. Can you briefly explain the
statutory and regulatory obstacles that agents face when trying
to remediate one of these cartel tunnels?
Mr. Judd. Just to remediate a tunnel, we have to follow the
NEPA laws. And in 2014, in San Diego, we had a tunnel that we
were not able to remediate because a bird had nested in that
area and we had to wait until the eggs hatched before we could
remediate that tunnel. The problem with that was that we had to
allocate resources to guard that tunnel, which then left other
areas on the border unsecured, which allowed the cartels to
exploit that area. We have to be able to remediate these
tunnels immediately.
Mr. Westerman. OK. And I am going to stick to my rule, not
going past 5 minutes, or the Committee Rule. So, I won't ask a
question where you only have a few seconds to answer.
With that, I will recognize the Ranking Minority Member of
the Subcommittee, Mr. McEachin, for questions.
Mr. McEachin. Thank you, Mr. Chairman.
Mr. Arthur, is your Center for Immigration Studies the same
one that was founded by John Tanton?
Mr. Arthur. It was not founded by John Tanton.
Mr. McEachin. Was it founded in 1985?
Mr. Arthur. It was founded in 1985. I only began working--
--
Mr. McEachin. Thank you. That answers my question.
Mr. Nicol, there has been some suggestion by some of the
witnesses here that the Border Patrol has been handcuffed. And
I assume by being handcuffed, we are talking about handcuffed
by environmental and public policy safety laws. What rights and
protections do these so-called handcuffs help to keep in place?
Mr. Nicol. I think it is important to see the interaction
between the Border Patrol and land management agencies as a net
positive. You have two different agencies that are responsible
for work in a given area, they should be working together to
minimize the kind of harm that could be done. Giving one an
upper hand over the other is not helpful in any way.
Mr. McEachin. All right, sir. The Chairman asked a yes or
no question concerning a quotation from a few years back. You
gave the answer, it is more complicated than that. Do you care
to elaborate on your answer at this point?
Mr. Nicol. Certainly. Trash can be remediated fairly
easily, it can be picked up. Trails that somebody leaves
walking across the border can heal themselves relatively
quickly.
If the laws are waived to build border walls, those walls
cause significantly more damage, they tend to dam water, they
cause flooding, the roads that have been carved through are far
worse than trails. So, yes, it is good to limit the amount of
trash that is left behind. But if the measures that are used to
do that are more destructive than the trash itself, then that
is a bigger problem.
Mr. McEachin. Thank you. It also has been suggested that
public land management agencies like the Department of the
Interior and the USDA are to blame for delays in Border
Patrol's border security efforts. However, it is my
understanding that these public land agencies hold an MOU with
the Department of Homeland Security that helps to ensure
cooperative management of border security on public lands. In
fact, both Customs and Border Protection and the Department of
the Interior have submitted testimony to this Subcommittee
before saying that the MOU is working well.
To your knowledge, is this MOU working as it was intended?
Mr. Nicol. I think generally it is. I think that there are
going to be issues in which one agency or the other, I think
this goes on both sides, feel that things did not go as quickly
as they would like.
I think one thing that might slow things down is the lack
of biologists within the U.S. Fish and Wildlife. They have had
a decreasing workforce, so possibly hiring some more biologists
would help things like that to speed up. But I think overall it
has been a positive.
Mr. McEachin. That is probably a nice segue into my final
question to you. How do you think the severe funding cuts
proposed for the Department of the Interior and the USDA in the
President's Fiscal Year 2019 budget will affect their ability
to make land management decisions along the border?
Mr. Nicol. It will have a tremendous impact. These land
management agencies also have their own law enforcement
officers. If they don't have the funds to hire those officers
or retain those officers, if they don't have people on the
ground in these places, they are less able to do their jobs and
they are also less able to work with Border Patrol.
Mr. McEachin. Thank you.
Mr. Chairman, while that concludes my questions, I would
ask unanimous consent to enter into the record the evidence
that led the Southern Poverty Law Center to declare the Center
for Immigration Studies a hate group.
Mr. Westerman. Without objection.
The Chair will now recognize the Vice Chair of the
Committee, Mr. Johnson from Louisiana, for 5 minutes.
Mr. Johnson. Thank you, Mr. Chairman.
Mr. Judd, I had a couple of questions for you. I want to
thank you for your service first, and just kind of highlight
some of the things you have said here today and what you have
presented. On page 2 of your submitted testimony, you focus on
the real life implications for agency safety, and you talked
about that this morning.
Specifically, something that really drew my attention from
page 2 of your written testimony, you say, ``This is a
particular concern at a time when we have seen a dramatic
increase in assaults on agents. And just last year, assaults on
agents were up 76 percent. They totaled 774 for 2017.''
It is a dangerous job, and I think the American people
recognize that or are beginning to appreciate it more. And we
need to do all we can, that is our commitment, to assist you
all and protect those who protect us.
Since my time is limited, I am not going to repeat
everything you stated in those comments, but I do want to
associate myself with that because I think your comments well
articulate the importance of the topic that we are discussing
today.
But here is my question. In your testimony, you also raise
the point of how unintended consequences of environmental laws,
which are meant to protect our national resources, are actually
harming the very areas they are supposed to protect. I am
curious, in your personal experience that you related in your
testimony, specifically with regard to the Naco area of
operations, this is where the Border Patrol was required to
leave the conservation area alone until it received the
necessary permits and completed the environmental impact
studies.
You mention that you had a long waiting period in that
interim time, but you didn't say exactly how long. I know you
probably cannot give a detailed number of days, but
approximately how long was that waiting period? Are we talking
weeks, months, a year? How long was it?
Mr. Judd. To the best of my recollection, it was
approximately 2 years.
Mr. Johnson. So, for nearly 2 years, for that amount of
time, there was a massive hole that allowed criminal
enterprises to drive their vehicles along areas that were
intended to be nationally protected areas. Is that right?
Mr. Judd. Yes. I personally chased several of these
vehicles that crossed the border in that area.
Mr. Johnson. I think the importance of this hearing today
is that I don't think the American people are aware of how
nonsensical these things are and that it is jeopardizing our
public safety. I am so grateful you brought it. It is very
frustrating to all of us, and it must be very frustrating to
the agents on the ground. I can just imagine what they must be
saying about Congress and those who are making these laws.
Does it affect morale in that way? I know you said morale
is trending upward, thankfully, because of the Administration's
appreciation and the increasing awareness of all this. But that
has to be a problem on the ground, right?
Mr. Judd. I believe that all individuals want to feel like
they are productive. I remember the best job that I ever had
was when I worked construction when I was a college student. I
was able to leave the construction site, look back and see what
I accomplished. Border Patrol agents want to feel exactly the
same way. They want to feel like they are in fact securing the
border.
Mr. Johnson. I appreciate that.
I had one question for Mr. Nicol with regard to testimony
you just gave. I think I heard you say that the trash that is
left behind can be picked up, collected easily. Am I
characterizing your response?
Mr. Nicol. A lot more easily than remediating problems that
are caused by border walls and patrol roads, yes.
Mr. Johnson. The reason that piqued my interest is that we
know that Border Patrol estimates that every CBV leaves
approximately 8.5 pounds of garbage behind, each individual.
So, if you do the math, based on the Border Patrol's
conservative estimate of 1.3 million known CBVs, that means
illegal immigrants and smugglers left approximately 11,050,000
pounds of trash over a 3-year period. Are you suggesting today
that that is an easy thing to control and pick up?
Mr. Nicol. Again, the amount of harm that that does to an
environment, it is significant, but it is far less than the
amount of harm done by border walls or by roads that are cut
through roadless areas.
Mr. Johnson. But just so we are clear. Are you saying that
11 million pounds of trash is an easy thing to contain and
control? Because I thought that is what you said a few minutes
ago.
Mr. Nicol. It is matter of which one is greater, which does
the greater harm.
Mr. Johnson. OK. I will yield back.
Mr. Westerman. The gentleman yields back.
The Chair now recognizes the Ranking Member for 5 minutes,
Mr. Grijalva.
Mr. Grijalva. Thank you, Mr. Chairman. And, Mr. Chairman,
the Committee staff, Mr. McEachin's Subcommittee staff,
searched long and hard for an example which was in Mr. Judd's
testimony of a tunnel that was never closed or never mitigated
because of environmental regulations or laws. The example that
he just gave about San Diego, I would request, Mr. Chairman,
that you share the information with the staff so we can look at
that, because we could not find any information on that example
right there.
Mr. Nicol, the Majority is going to have us think that
local communities are so overwrought by border crossers and
things that they leave behind, that border communities should
be thrilled to surrender their rights and their decision making
to the Department of Homeland Security. That is not my
experience from my own discussions with people in my district.
However, how do border communities you have talked to, that
you worked with, feel about surrendering these prerogatives or
rights, essentially against their will? Do you think the right
to clean water or due process is red tape? Number one. Because
I think that we are minimizing the effect on people themselves
that live there and have lived there for generations. I would
like to know if you could respond to that, please.
Mr. Nicol. Thank you. I live in a border community. I live
in McAllen, Texas, just a few miles north of the border. The
general feeling among people who are aware of the waiver of
laws that is in place currently for the wall is a sense of
offense. That we don't have the same level of legal protections
that the rest of the country has. That someone in the interior
of the Nation has the protection of the Safe Drinking Water
Act, but the Safe Drinking Water Act was waived to build the
border wall. All of my drinking water has to come through that
to get to my home because all of my drinking water comes out of
the Rio Grande.
We live in safe communities. McAllen is one of the safest
communities in Texas. El Paso is one of the safest communities
in the United States. Border communities are not over-run
horrifying, dangerous war zones. They are safe. They are quiet.
If anything, they are a little boring. The idea that we need to
suspend the rule of law, and that only our safe communities get
the rule of law suspended is, frankly, offensive to many people
that I know.
Mr. Grijalva. And for local governments in those
communities, those towns, those counties, how do they feel
about having their legal requirements subject to basically
irrelevance by the Department of Homeland Security and Border
Patrol?
Mr. Nicol. I think it is the same basic thing. It also
makes for a lot of legal uncertainty. You had the El Paso Water
District challenge the waiver back in 2009 because they didn't
know what their legal framework was to draw water out of the
Rio Grande, if the laws had been waived, if the Clean Water Act
and the Safe Drinking Water Act had been waived. So, I think it
causes a tremendous amount of difficulty. It is a very broad-
brush approach to waive everything.
Mr. Grijalva. Thank you.
Mr. Judd, if I may, just one question. On February 2 of
last year, San Diego's NBPC Local 1613 said in a tweet that
appears to now have been deleted, ``It is morning in America.
With new leadership having the will to secure the border, a
Hemingway quotation follows: Certainly there is no hunting like
the hunting of man, and those who have hunted armed men long
enough and liked it, never really care for anything else
thereafter.''
This tweet was deleted. I just want to ask you, do you
stand by that quote or are you aware of that quote, Mr. Judd?
Mr. Judd. I personally had that quote deleted. I made sure
that quote was deleted.
Mr. Grijalva. Why?
Mr. Judd. I didn't think that quote was appropriate.
Mr. Grijalva. About the hunting of man?
Mr. Judd. That is correct.
Mr. Grijalva. Thank you. I yield back.
Mr. Westerman. The gentleman yields back.
The Chair now recognizes the gentleman from Texas, Mr.
Gohmert, for 5 minutes.
Mr. Gohmert. Thank you, Mr. Chairman.
Mr. Nicol, in your testimony, you said, as I read it,
``laws that are swept aside are not merely red tape. They are
critical protections that were put in place for a reason--to
protect people, their communities, and the environment that we
depend on.''
Is that your belief?
Mr. Nicol. Yes, it is.
Mr. Gohmert. But, apparently, it is only your belief when
it comes to certain laws, but it is not your belief regarding
laws about our border. Would you be happier if there were no
U.S.-Mexico border?
Mr. Nicol. I am concerned about a lot of different laws,
including----
Mr. Gohmert. Let me ask it again, and listen real
carefully. Would you be happier if there were no U.S.-Mexico
border?
Mr. Nicol. No.
Mr. Gohmert. You would not. So, you are OK with a border as
long as it is not enforced and there is no wall, correct?
Mr. Nicol. The border has been enforced for a long time
before there was a wall. The wall is not necessary for----
Mr. Gohmert. Well, you are not answering my question.
Because the fact is, when we have a national park that allows
people to come in, drug smugglers, to use the park at will, and
they destroy the park, they leave tons of trash, and we cannot
allow our enforcement people to go out there and stop them,
then that is not enforcing the border.
And when we put up a sign that, to me, is the most
repugnant thing we can do to American citizens that says, look,
basically, drug cartels have taken over our park, you will be
safer if you don't use this area, go north of I-10, that is
completely neglecting our duty as the U.S. Government and our
oath to protect this country.
And I know you have such great judgment. I have certainly
had my disagreements with Mr. Cornyn, our Senator, but isn't it
true you said in response to John Cornyn's statement regarding
Dreamers, ``He forgot to add that he is a tool with no scruples
and his head looks like a thumb with a face drawn on it.''
Aren't those your words? It was your post, wasn't it?
Mr. Nicol. Yes.
Mr. Gohmert. And another post here, ``We all know Ted Cruz
is slimy and evil,'' and that, ``if he were to crawl back under
the rock from whence he was spawned, the world would be a
better place.'' That was one of your posts. But you also post
that you would like to see more of a coming together between
the sides. Isn't that right?
Mr. Nicol. Those are personal, yes. But I do feel that it
would make far more sense to have immigration----
Mr. Gohmert. All right. Well, let me ask you about this,
since I get to ask questions.
Another entry you had is that, ``It is important to have
some historical perspective and understand the racist reasons
that our immigration laws were put in place.''
Let me ask you, have you ever heard of MS-13?
Mr. Nicol. Yes.
Mr. Gohmert. You know who they are. Have you seen the kind
of hideous murders they have inflicted upon Americans in the
United States? Have you seen that?
Mr. Nicol. I have read about them, yes.
Mr. Gohmert. Yes. OK. And how about ISIS? You are familiar
with who and what ISIS is, correct?
Mr. Nicol. Yes.
Mr. Gohmert. And you are aware that they have made plans,
and the FBI Director has testified that we now have ISIS in
every state. He said there is an investigation in every state
in the Union. Are you aware of that?
Mr. Nicol. Yes.
Mr. Gohmert. And it was the FBI Director, even though
people made fun of me for pointing out and quoting the FBI
Director, he said that there are Middle Eastern terrorists who
have changed their names to sound Hispanic and sneak across the
U.S. border so that they can do damage in this country. That is
also a threat.
We also have people like Kim Jong-un that has made clear he
wants to destroy our Nation. We also know that drug cartels'
estimated about $80 billion or so last year that they brought
in that has done massive damage on the rule of law in Mexico.
It is why Mexico is not one of the top 10 economies in the
country.
And, I would just suggest to you, that, hopefully, we will
do as the Secret Service found when they raised the wall and
the fence around the White House by 5 feet, fences and walls
work. If they don't, as I told the head of the Secret Service,
then tear down the wall around the White House. They haven't
seen fit to do that.
I yield back.
Mr. Westerman. The gentleman's time has expired.
The Chair now recognizes the gentleman from California, Mr.
Huffman, for 5 minutes.
Mr. Huffman. Thank you, Mr. Chairman. Thanks to the
witnesses for being here.
Environmental protections and bedrock environmental laws
like NEPA are in place so that we can protect communities and
the resources they depend on and provide an opportunity for
public input into land management decisions. And,
unfortunately, although I have heard my colleagues across the
aisle many times say that local voices are the most important,
it seems that it is only certain voices that matter and there
is some selective listening going on. They seem to hear only
the local voices that they agree with when it comes to things
like national monuments and certainly with this rhetoric around
border security we are hearing today.
Ignoring tribal rights, community voices, and our country's
laws, as some are proposing, doesn't help solve problems, but
it does advance President Trump's very authoritarian, dystopic
agenda. In fact, today, it looks like we are having a blue
light special, a two-for-one on scapegoating. We get to
scapegoat environmental laws and Mexicans at the same time, so
what an irresistible opportunity for this authoritarian agenda.
* * * * *
Mr. Gohmert. I would ask that the gentleman's words be
taken down. He has impugned my motivation, and it is entirely
inappropriate. It violates the rules of decorum in the House,
and it is simply not true. I did not scapegoat any Mexicans----
Mr. Huffman. Mr. Chair----
Mr. Gohmert [continuing]. So, I ask the rule----
Mr. Huffman [continuing]. The clock is running during Mr.--
--
Mr. Gohmert. Yeah, he is going to have a whole time----
Mr. Westerman. The gentleman will suspend.
Mr. Gohmert [continuing]. As long as it doesn't violate the
rules.
Mr. Westerman. Does the gentleman wish to take down his
words?
Mr. Gohmert. Yes, I do.
Mr. Huffman. He can do whatever he would like. I haven't
violated any rules.
Mr. Westerman. We need to consult for just a moment.
Can the official reporter report the words? Will the
official reporter report the words?
[Discussion off the record.]
Mr. Huffman. Mr. Chair, may I be heard for a point of
clarification?
Mr. Westerman. Still waiting for counsel. We will be right
back.
Mr. Huffman. I think we might be able to obviate some of
the further delay and inquiry.
The gentleman from Texas, when he interrupted and I did not
yield, but he did ask a question during that point about his
personal motivation, and I answered in the affirmative. I am
happy to withdraw that because, frankly, my earlier point was a
rhetorical point about the effect of the hearing and not about
any individual Member's personal motivation. So, if withdrawing
that colloquy, which I hadn't yielded for in any event, but I
am happy to withdraw it, would move us forward, I would be
happy to do that.
Mr. Westerman. The gentleman from Texas.
Mr. Gohmert. If I might respond. I would gladly accept that
withdrawal, but I hope the gentleman understands, under the
rules of decorum, if someone uses words that impugn a Member of
Congress' integrity or motivation, I know it is not normally
polite to interrupt, but if there is no challenge to have the
words taken down while that speaker is still speaking and
present, then you waive the right, and that was why I
interrupt. Otherwise, I would apologize for interrupting
because it was your time, but that is the only time I have to
make clear ``were you speaking directly to me?'' And on the
gentleman's explanation, I appreciate it. And my request for
his words to be taken down is withdrawn. Thank you.
Mr. Westerman. Does the gentleman wish to withdraw his
words?
Mr. Gohmert. And I would ask that his time be restored too.
Mr. Westerman. Does the gentleman wish to withdraw his
words?
Mr. Huffman. I am happy to withdraw the words as the
gentleman just----
Mr. Gohmert. Thank you. And, Mr. Chairman, I----
Mr. Westerman. Without objection, the words are withdrawn,
and the gentleman may resume and ask questions.
Mr. Gohmert. And his time be restored because he shouldn't
be charged for my----
Mr. Westerman. And his time will be restored.
Mr. Gohmert. Thank you.
Mr. Westerman. Please add 1 minute to the clock.
Mr. Huffman. Well, thank you, Mr. Chairman and Mr. Gohmert.
And certainly, I don't offer any words about individual
motivations, but my rhetorical point about the effect of this
hearing being one of scapegoating Mexicans and the
environmental laws at the same time, I stand by completely.
Now, Mr. Nicol, you have already pointed out that where
border infrastructure projects fail to fully consider impacts,
local communities were left to deal with the consequences of
that. And you mentioned eco-tourism, which is a large part of
your local border economy.
According to a 2011 study, nature tourism contributes
roughly $460 million to the economy in south Texas every year.
Could you please elaborate on the economic impacts of the
border wall that cut off the World Birding Center? And then,
maybe also speak to how you expect increased wall construction
to impact wildlife and related eco-tourism that drives economic
development in border communities.
While you are at it, it has been suggested that protecting
wildlife is perhaps a rationale for this wall. I found that
very creative, almost as good as the one from the President
about putting solar panels on the wall, and now suddenly, we
are for renewable energy. This wall can mean many things to
many people and, apparently, it is now a wildlife wall to some
people. I would appreciate your thoughts on that rationale.
Mr. Nicol. Certainly. As far as eco-tourism is concerned,
the wall that is south of my house was built between a World
Birding Center that a local community established to try to tap
into the some of the eco-tourism dollars that come to south
Texas every year. We are in a migratory flyaway. All the birds
heading north and south from about the Rockies to the East
Coast bottle up and come through our area. So, in the fall and
the spring, eco-tourism and bird watching are a tremendous part
of the local economy.
The wall that was put up between the World Birding Center
and the adjacent wildlife refuge, which is where all the
habitat for the birds actually is, has a gate on it. The locals
were promised that that gate would be opened during regular
business hours. It has never been opened. There is a sign that
points to it saying, ``Pedestrian walking trail this way,'' but
the gates never open so the birders can't go there.
If the same thing is done at the Santa Ana National
Wildlife Refuge, the National Butterfly Center, Bentsen-Rio
Grande State Park, and World Birding Center, all of which are
on the map for President Trump's proposed walls, we can expect
the same sort of thing. And even if the gate is opened, it is
hard to imagine that very many tourists would want to go
between prison bars to go see the birds they are interested in.
It is not a very good vacation option.
As far as the wildlife is concerned, the levee wall in
particular is terrible for wildlife because it takes an easy
slope and turns it into a sheer cliff, essentially an 18-foot
tall slab of concrete. And when we get floods, the wildlife is
trapped, so you turn a wildlife refuge into a wildlife
deathtrap. There is no way that an ocelot can get over that.
People get over it pretty easily. There is usually a pile of
ladders stacked up at the end of the wall. But for something
that can't fly or can't build a ladder, the wall becomes a
deathtrap.
Mr. Huffman. What about the antelope that were referred to
earlier as being impacted by illegal immigration, an antelope
or mobile migratory animals? Does the construction of a
continuous border wall impact the wildlife corridors that
species like that would normally----
Mr. Nicol. The antelope, that was out in Arizona. I have
read that report as well. The report did not say that it was
just because of cross-border traffic. It was the whole package
of enforcement and traffic that impacted those animals. So, it
was also including the walls, the roads, patrols, helicopters,
and everything else.
Mr. Huffman. Thank you. I yield back.
Mr. Westerman. The gentleman yields back.
If you notice, votes were just called, but we want to try
to get one more round of questioning in. And I want to
recognize the Chairman of the Full Committee, Mr. Bishop from
Utah, for 5 minutes.
Mr. Bishop. Thank you.
Let me see if I can get a few of these things in here
quickly and change the focus back to what we are talking about.
Mr. Arthur, very quickly, is there a conflict between the
missions of the Interior Department and Homeland Security?
Mr. Arthur. They can work together, but they actually have
two very different missions. And, quite frankly, when they do
work together, when we do enforce our----
Mr. Bishop. It works real well.
Mr. Arthur. It works best, yes.
Mr. Bishop. But that requires personality, which is
something we don't--we legislate on worst-case scenario, not on
best-case personality.
Mr. Bell, is the violence that you are witnessing on the
border increasing or decreasing? I knew the Krentz family. I
feel bad about everything. Is it increasing?
Mr. Bell. Where we have seen the access granted and the
infrastructure and the road systems come in, we see less
activity if there is less conflict. We don't run into folks.
There hasn't been very much violence in our area. We do know
that assault on agents is up, though. I belong to the Citizens
Advisory Committee for our Nogales Border Patrol Station, and
the statistics are up on that. And we get briefed on that
regularly.
Mr. Bishop. OK. Mr. Judd, we are talking here not
necessarily about a wall. We are talking about access. The
Border Patrol needs the access that happens to be there.
Have you served in other areas? You have served in Tucson,
right?
Mr. Judd. I have. I have also served in California, Maine,
and Montana.
Mr. Bishop. How many apprehensions did you have in Maine in
a year?
Mr. Judd. At my station, we had maybe two a year.
Mr. Bishop. A little bit fewer than in Tucson.
Mr. Judd. Yes.
Mr. Bishop. Which means the history is somewhat cyclical.
It also means that each border area is different. And having a
one-size-fits-all MOU probably does not meet all the
circumstances. So, for example, historically, San Diego is the
entrance port of choice, until they actually waived those
iconic bedrock laws and build a fence, and then it kind of
shifted over to the Tucson Sector.
Rio Grande actually has more, but there is a different kind
of personality going across. Rio Grande, a lot of those
illegals that are coming across are kids, women, but in Tucson,
isn't that mainly adults, males?
Mr. Judd. It is, yes.
Mr. Bishop. So, in each of these sectors, what we really
need to have for the Border Patrol to be effective is to give
them flexibility to meet the differences of those situations
and give them access.
This is what I really want you to talk to me about, because
when we were down there, you explained why east-west access is
so significant. If somebody is crossing the border illegally
and you have the ability of finding that out, what is your
method? What do you try to do to catch those people?
Mr. Judd. Well, what you want to do is you want to box
those individuals in between two agents, because if you can do
that, your effectiveness goes sky high. Whereas, if you are
chasing from behind, the chances of you actually catching those
individuals are nearly none.
Mr. Bishop. So, to do that, you need different kinds of
access points, one at the border wall, one further up there,
further up again. You need to be able to go behind the group as
well as in front of the group.
Mr. Judd. To be effective, we have to have those.
Mr. Bishop. And that is where the east-west access becomes
critical.
Mr. Judd. Absolutely.
Mr. Bishop. Do you have a problem with maintenance of
access routes that you already have?
Mr. Judd. No, we don't.
Mr. Bishop. All right. But you do need significantly more,
as we were talking, were we in the Coronado at the time?
Mr. Judd. We were, yes.
Mr. Bishop. All right. Is there the ability of getting that
access point right along the border so you can have somebody
behind as well as somebody in front?
Mr. Judd. We could absolutely build a border road that
would help us be effective.
Mr. Bishop. Is it there now?
Mr. Judd. It is not.
Mr. Bishop. Why not?
Mr. Judd. The environmental laws, frankly.
Mr. Bishop. You mean to tell me that sometimes it takes so
long to get approval from the land managers, you don't even
have time, you don't even ask the question?
Mr. Judd. Oftentimes, we just don't even want to go through
the process because we know what the outcome is going to be.
Mr. Bishop. Borderland has a specific meaning, correct?
Mr. Judd. It does, yes.
Mr. Bishop. It is 100 miles.
Mr. Judd. Yes.
Mr. Bishop. It is different. And some of the frustrations I
have of, obviously, people who simply, I think, try to put
their head in the sand and ignore that there is an opinion.
Sometimes we make a decision that if we are giving Homeland
Security the ability of making these kinds of decisions on
local communities, aren't we already doing that with the
Department of the Interior and the Department of Agriculture?
Aren't they already making these arbitrary decisions on these
local communities?
Mr. Judd. They have, yes.
Mr. Bishop. The difference is not significant, except that
the difference is national security has an interest in those
areas. The difference is the topography. So, that Tucson Sector
is 80 percent controlled by the Federal Government, and almost
half of that is in wilderness area. You don't find that along
the Texas border. You don't find that in Maine or Montana.
Mr. Judd. No, you don't.
Mr. Bishop. What we need to do is make sure that we give
flexibility for access. Access has to be critical. If the
Border Patrol does not have access, we cannot do our job with
security. It is not the same thing as a wall. But that access
becomes significant, and our environmental laws inhibit that
access from taking place.
I yield back, in 1 second.
Mr. Westerman. Great job. The gentleman yields back.
There are several people still on the list to ask
questions, so the Committee will stand in recess, and we will
reconvene after votes.
[Recess.]
Mr. Westerman. The Committee will reconvene.
I now recognize the gentleman from Arizona, Mr. Gosar, for
5 minutes of questions.
Mr. Gosar. Thank you, Mr. Chairman.
Mr. Judd, regarding Border Patrol agents that are under
scrutiny for sabotaging water stashes set up by humanitarian
groups and coyotes, who are aiding the commission of criminal
crimes, what is the procedure for Border Patrol agents who find
humanitarian groups or supply stashes along and around the
border?
Mr. Judd. When you look at those pictures, what they are
not telling you is why we would dispose of that water. If that
water heats up in the desert, it is actually a lot more
dangerous to drink extremely heated water than what it is if
you don't have that water at all.
So, what our agents are doing is they are actually taking a
humanitarian effort to try to save these individuals. And it is
on record to the extraordinary length that we have gone to save
individuals, including an agent that went into the Colorado
River and lost his life trying to save somebody who had crossed
the border illegally. We have procedures in which we try our
best to be as humanitarian to those that we come in contact
with at all times.
Mr. Gosar. Are the agents actively dismantling supplies for
coyotes and individuals being smuggled?
Mr. Judd. Absolutely not.
Mr. Gosar. About how much of the waste and garbage
throughout the borderlands comes from these humanitarian groups
and the human and drug smugglers that they enable?
Mr. Judd. A great deal. In fact, the vast majority of all
the trash that is left in the desert is left from smugglers,
the people that cross the border illegally, and from these
humanitarian groups that leave these water jugs and these food
piles around.
Mr. Gosar. I have been to the border many times and have
witnessed it firsthand.
In your view, would Border Patrol agents benefit from a
clear plan and procedure for combating supposed humanitarian
groups that are aiding and abetting and smuggling environmental
pollution in felony border crossings?
Mr. Judd. Well, in fact, under the Obama administration, we
were not able to enter into these camps to extricate these
individuals that crossed the border illegally, even if we had
the foot sign that clearly showed that illegal aliens were
entering into these humanitarian camps.
We know that these groups are helping people cross the
border illegally, and that is just flat out against the law. If
we are there to help for humanitarian purposes, that is
perfect, but you can help through humanitarian purposes by
reporting to the Border Patrol that people crossed the border
illegally and let them know what hospital you are taking them
to. But in reality, what they are doing is they are furthering
the entrance of these individuals.
Mr. Gosar. Well, to the law, they are aiding and abetting,
right?
Mr. Judd. They are.
Mr. Gosar. OK. Mr. Nicol, you stated in your written
testimony that there is no clear need to waive laws,
environmental or otherwise, to facilitate Border Patrol
activities. To make clear for the record, how many years of
experience do you have in border security law enforcement?
Mr. Nicol. As a law enforcement officer, none.
Mr. Gosar. Really? Can you say that again for the record?
Mr. Nicol. None.
Mr. Gosar. Mr. Judd, in your decades of serving as a Border
Patrol agent, do you agree with Mr. Nicol's statements that the
2006 MOU grants sufficient access to our agents to successfully
deter illegal activity on the border?
Mr. Judd. The way it is being implemented at this time,
absolutely not.
Mr. Gosar. Would there be any means to change that that you
would find would suffice to actually work?
Mr. Judd. No. It needs to be rewritten.
Mr. Gosar. Thank you.
Mr. Bell, your family has ranched land along the border for
some 80 years. As someone who lives and works on the
borderlands, your testimony included mention of violence,
murder, and threats. Since the MOU was signed in 2006, have you
seen these problems disappear?
Mr. Bell. We have seen things get better on the border as
far as that is concerned. When we see infrastructure come in
along the border, we actually see conditions get better. We see
interactions with illegal border crossers diminish. We don't
see the drug smugglers as much. But there are those chance
occasions when you run into somebody and you don't know who you
are confronting, so----
Mr. Gosar. Can you give me a timeline? You have seen it get
better, let's say around November of 2016 and since that time?
Mr. Bell. Yes, I have seen it actually get better prior to
that, actually. When they started to get these liaisons with
the Forest Service in with the Border Patrol and actually work
on projects to get roadways implemented on the border and
infrastructure, like RVSS towers and IFT towers. Those were all
done in coordination with the Forest Service.
Mr. Gosar. So, has the deterrence been sufficient as Mr.
Nicol would state?
Mr. Bell. No. There is still a lot of smuggling going on in
the area. There are still a lot of groups coming through the
area. And in fact, they are using the areas where the agents
have less capability of patrolling. Right now, the biggest area
on our ranch where drugs are being smuggled is through the
wilderness area.
Mr. Gosar. Oh, absolutely. I thank the gentleman.
My time has expired. I appreciate it.
Mr. Westerman. The gentleman's time has expired.
We will now move into a second round of questions, and I
recognize myself for 5 minutes.
Mr. Judd, can you clarify what types of challenges you have
that you face in order to conduct maintenance on tactical
infrastructure? This is infrastructure that is already in
place.
I know when I was at the border, we were in a vehicle,
looked like it had new tires on it, but we spent part of the
time changing a flat on the vehicle driving along the road that
was on the border.
Mr. Judd. The main issue that we have with maintenance, if
we have a road, we can maintain that road, to answer Chairman
Bishop's question. But the problem is, is we don't have north-
south access roads that allow us to get to the border roads
that allow us to maintain it in a timely fashion.
To drive a road grader from, let's just say, the Naco or
the Brian Terry Memorial Border Patrol Station to the Coronado
National Forest, as opposed to driving that same road grader on
the highway, taking it into the forest and then having that
north-south access road, greatly diminishes the time. So, we
have to have access to those roads.
Mr. Westerman. And, Mr. Arthur, in Mr. Nicol's testimony he
talked about the decrease in the amount of drugs coming over
the southern border. Is that true? I thought there has actually
been an increase in fentanyl and methamphetamine?
Mr. Arthur. I don't have the numbers in front of me, but I
can tell you right now that the amount of fentanyl--and again,
I cannot overstate the toxicity of this drug--the amount of
fentanyl that we have seen has actually increased significantly
month to month in the first 4 months of Fiscal Year 2018. It is
almost as much as we saw in all of Fiscal Year 2017.
Mr. Westerman. OK. And, Mr. Judd, recently when I traveled
to the Border Patrol's Tucson Sector with Mr. Bishop, we
witnessed the various effects of illicit border crossing
activity. We were able to see firsthand how transnational
criminal organizations utilize gaps in our border security to
circumvent criminal operations. We saw these hideouts in the
hills where the scouts operate from. And we know this can often
lead to the creation of tunnels that are used for human
trafficking and smuggling of narcotics. And I found out
something else interesting when I was there, that the city of
Nogales treats the sewage from Mexico and drugs actually get
smuggled through the sewer system.
Can you lead us through the steps your agents must take
after the discovery of a cross-border tunnel and what it takes
to remediate that tunnel or fill it in?
Mr. Judd. Yes, it is a very difficult and lengthy process.
We have to contact, again, as per the National Environmental
Policy Act, or NEPA, we have to contact several different
agencies in order just to fill that tunnel in, which is what we
are hoping to do. In remediating it, you are trying to take it
back to its natural state. And it takes weeks, even months, to
be able to take that tunnel back to its natural state because
of the bureaucracy that is involved with these laws.
Mr. Westerman. Mr. Nicol, a report on the Cabeza Prieta
National Wildlife Refuge found almost 8,000 miles of ad hoc
roads that were associated with illegal border crossings, and
recommended Border Patrol be allowed to access the refuge and
install tactical infrastructure. Since you believe the Border
Patrol and security infrastructure are ineffective, what would
you do to reduce the number of and the amount of damage that
these unauthorized roads cause in the refuge?
Mr. Nicol. Many of those roads are being created by east-
west traffic, not just north-south traffic. One of the
remediation efforts that has been undertaken at Cabeza Prieta
and at Organ Pipe Cactus National Monument has been to retire
and repair unneeded roads, because those are used by smugglers
the same way as they are used by Border Patrol agents. So,
reducing the number of roads would not only help to remediate
the damage, but it would also make it so that when you do have
cross-border traffic, it is more concentrated in specific
areas, which would in turn make it easier for Border Patrol to
intercept.
Mr. Westerman. Mr. Judd, you spent a lot of time in this
area. Do you think these roads are mainly east-west or do you
see north-south? The image we saw earlier looked like a vast
web of ad hoc roads.
Mr. Judd. The roads that Border Patrol agents use are east-
west, but the roads that the smugglers use are all north-south.
I mean, they might go east-west for a couple hundred yards
until they go north-south again, but they are all north-south.
Mr. Westerman. OK. My time has almost expired.
I will now recognize Mr. Beyer for 5 minutes.
Mr. Beyer. Thank you, Mr. Chairman, very much. Mr.
Chairman, we are here today to talk about the border wall while
the Senate is talking about immigration legislation, so I think
it is only fair that I take a few minutes to express my extreme
disappointment with how disingenuous this immigration
conversation has been in Congress. I think the American public
is being spun, confused, misled by the President and Republican
congressional leadership, so let me set the record straight.
Number one, President Trump told us that Mexico would pay
for the wall. Number two, Mr. Trump ended protection for
Dreamers. Number three, now President Trump is insisting that
we agree on his plan to limit immigration or else.
Trump insists he is a dealmaker, but nothing could be
further from the truth. He says he wants a bipartisan deal, but
then he says he won't support any that are brought to him. He
says Mexico will pay for the wall. Now, he is begging for us to
fund it. He says he wants to protect Dreamers, but he won't do
it unless Congress agrees to limit legal immigration. And he is
holding immigration conversations hostage.
This is reckless, period. The anti-immigrant right wants to
build a border wall despite efforts that experts have said
already decried because it doesn't make us any safer. And the
anti-immigrant right wants to limit immigration, which is a
fundamentally different conversation from anything that we have
had before. No one was talking about this before because it is
truly radical.
Our economy needs immigration to be competitive and a lead.
We need to protect our Dreamers, and nearly 80 percent of
Americans and a vast majority of Republicans agree this must
happen. We need to look at our high-skilled immigrants and per
country caps, for example, House Bill H.R. 392. We need the
American Hope Act, a meaningful bill for Dreamers, or my bill
with Congressman Espaillat and Bonamici, the Protecting
Sensitive Locations Act, or Congresswoman Chu's Reuniting
Families Act. We need meaningful discussion on temporary
protective status. Congressman McGovern has a bill pushing
this. We need meaningful treatment toward refugees, like
Congressman Pascrell and Cicilline have been pushing. And we
need meaningful access to health services, like Congresswoman
Lujan Grisham has been advocating.
But that is not our conversation. We are not being heard.
The scared children and families are not being heard. Arguments
about merit ignore that we already have merit in our system.
Yes, it needs tweaks. The skills-based visa system is not
perfect, but that is not the conversation we are having. Family
reunification is now called chain migration, but we all
understand the importance of family reunification. President
Trump's own wife brought her parents here through that family
reunification system.
So, let's be real. Let's eliminate the coded language that
tries to make us more comfortable with a nativist and even
racist immigration policy. Look, we are all children,
grandchildren, great grandchildren of immigrants, mostly when
there were little or no immigration restrictions, and there
were certainly no walls.
Mr. Chairman, that is the end of my formal statement, but I
do have a question or two.
Mr. Nicol, in your testimony, you mention that the waiver
to build roads and public lands is not only environmentally
destructive, but can be counterproductive to border security
efforts. We have heard a lot about the east-west walls needed
just on the side. Can you give an example how the public roads
could be counterproductive?
Mr. Nicol. Probably the best documented example is in the
San Bernardino National Wildlife Refuge. They are in an area
that is very fissured and eroded and has deep crevices that
someone cannot drive through. A patrol road was built along the
southern edge of the refuge. That patrol road involved filling
in lakes that are used by endangered fish. It didn't work very
well because they got their bulldozers stuck when they tried to
just dump dirt into it. But once the road was built, the refuge
reported, in 2008, that that road was being used by smugglers,
and that areas that previously had not seen any cross-border
vehicle activity because one could not drive a vehicle through,
were now being used by smugglers.
There may well be other examples that have not been as well
documented. That one, because you have land banners on the
ground observing it, has been.
Mr. Beyer. One more question. In Mr. Judd's written
testimony, he described the need for some Border Patrol agents
to use horses to patrol public lands as ``absurd.'' As someone
who lives on the border, do you think it is absurd that the
Border Patrol may need to use horses as transports in some
cases?
Mr. Nicol. For me?
Mr. Beyer. Yes, Mr. Nicol.
Mr. Nicol. Sure. I think that it makes a lot of sense in
certain areas. It doesn't make sense to create a road when a
horse is a more effective way to get across that terrain. There
are some very rugged parts of the border where a horse is just
the most appropriate and most effective way to get from point A
to point B.
Mr. Beyer. Mr. Chairman, I yield back.
Mr. Westerman. The gentleman yields back.
The Chair now recognizes the gentleman from Arizona, Mr.
Gosar, for 5 minutes.
Mr. Gosar. Mr. Judd, Mr. Nicol made a comment about it is
easier to pick up trash than building a wall. You are familiar
with lower Santa Cruz, right?
Mr. Nicol. I am, yes.
Mr. Gosar. What happens in the lower Santa Cruz? Mexico is
high ground. We are low ground in Arizona. So, what ends up
happening, we get this episodic flooding, right?
Mr. Judd. And we get a lot of trash washed into our areas.
Mr. Gosar. Not just trash, but sewage, right?
Mr. Judd. Yes, correct.
Mr. Gosar. OK. Mr. Arthur, when we start looking at
disease, I would talk about trash with disease, is the
antibiotic-resistant tuberculosis advancing in the United
States or receding?
Mr. Arthur. I know that we have seen incidents of
antibiotic tuberculosis in the United States. The source of it,
I cannot actually identify, but I believe it is increasing.
Mr. Gosar. Well, epidemiology-wise, in Arizona, it is
moving farther north. OK? We have tons of illegals that come
in, because we are one of the ones that actually have the
treatments for that.
So, where I am going with this is, the lower Santa Cruz, we
made a comment about a wall. So, Mr. Judd, if we were to build
a management of water with Mexico, would that actually be as
good as a wall?
Mr. Judd. I am sorry?
Mr. Gosar. Like an infrastructure project where we actually
mitigate the process and direct water along the mitigation,
along the lower Santa Cruz.
Mr. Judd. Absolutely. What we need to do is we need to be
able to keep anything that is flowing from Mexico into the
United States that could be bringing trash, sewage, or anything
like that. And whether that is a wall, whether that is building
an infrastructure with Mexico, we just need to be able to keep
that out from the United States.
Mr. Gosar. Let me ask you another question. Maybe you can't
answer, but I have the answer. When you do something along the
international border between Mexico, the United States, and
Arizona, who helps pay for it?
Mr. Judd. The United States does, as far as I know.
Mr. Gosar. Can you say it? What is the other country south
of us?
Mr. Judd. I don't know very much that Mexico pays for
anything.
Mr. Gosar. No, but Mexico would pay for that on an
infrastructure----
Mr. Judd. Oh, yes. In that case, yes.
Mr. Gosar. Absolutely, so once again, President Trump said,
``no, Mexico would pay for it,'' well, this is a creative way
of looking at something that actually mitigates trauma to our
infrastructure aspects that both sides take care of. And it is
even better than a wall.
Mr. Judd. Yes.
Mr. Gosar. We can actually extrapolate that to Nogales
because of the wastewater problem. Once again, we have rampant
sewage coming into the United States from Mexico. When we do
the wastewater aspect, we are the low ground, they are high
ground. So, we can actually mitigate this and it makes it
something that both countries mitigate.
Oh, by the way, let me ask you the question. There is also
another tribe down there, right, the Tohono O'odham that are
along that border as well?
Mr. Judd. That is correct, yes.
Mr. Gosar. So, this might be an interesting facade in
regards to a mitigation on how we look at border security with
an infrastructure project, would it not?
Mr. Judd. It would, yes.
Mr. Gosar. Wow. Interesting. But I guess I am the racist,
because that is what was said here. It is disingenuous for my
colleagues on the other side to say that. Over and over again,
that is all I hear.
You know what, there is an old analogy: ``Look in the
mirror. The enemy is me.''
I yield back.
Mr. Westerman. The gentleman yields back.
We will do one more round of questioning.
Mr. Arthur, you stated that you observed environmental
concerns in your recent visit to the Rio Grande Valley Sector
that hinders border security. Can you please explain the
problems that agents face there? We have been talking about the
Tucson Sector in Arizona, but let's look at some other areas
along the border.
Mr. Arthur. The main issue that I saw when I was down there
was carrizo cane. Carrizo cane is an invasive species that
grows along the banks of the Rio Grande River. And to quote The
New Yorker, ``it forms a grassy forest along the border within
which visibility is roughly 12 to 24 inches and makes an
excellent hiding space.'' It is also a woody substance. It is
very difficult to get through. Once smugglers, once any sort of
cross-border traffic, enter that cane, it is next to impossible
to find it. There are cane eradication projects, but the cane
remains. And for some reason, nothing has been done. The
curious thing is that when I stood on the bluffs of Roma,
Texas, and I stared across the river at Ciudad Miguel Aleman, I
believe it is, I actually saw Mexican workers cutting the cane
on the other side of the border, when I looked down and I saw
the cane growing along our own border. I don't know why we
still have it.
Mr. Westerman. Mr. Nicol, in your opening statement, you
mentioned the San Bernardino National Wildlife Refuge as an
example where border security infrastructure has failed. But
you failed to note that Border Patrol's access to the refuge
must be negotiated at the supervisor's level on a case-by-case
basis.
Do you think that if Border Patrol had more immediate
access to the refuge's roads, it would deter illegal
immigration and drug smugglers from using those roads?
Mr. Nicol. I think that the interaction between the land
management agencies and Border Patrol for any kind of
interdiction efforts where they are both having jurisdiction is
critical.
Mr. Westerman. I want to change the format here just a
little bit. We asked a lot of questions, but there may be
something on your mind that you think the Committee needs to
hear that we haven't asked.
Mr. Bell, I want to start with you. Are there any other
issues regarding border security, environmental laws,
regulations and access that you think we need to hear?
Mr. Bell. Well, it just doesn't stop with getting access to
the border and waiving rules. We still need other things. We
have to make sure there are boots on the ground. We have to
make sure that we have aerial assets. We have to make sure they
have the technology. All those things coupled together. But it
doesn't stop there either.
We need to make sure there is the infrastructure in place
in the courts that allow for timely prosecutions and a judicial
system that is willing to put out consequences. Only then can
we really see a change if we impose consequences on folks.
Mr. Westerman. Being from Arkansas and making a trip down
to the border like I did recently, it was really eye-opening to
me the vastness of the land there, the issues that the agents
face, the obstacles that are in their way.
Mr. Judd, I want to ask you, is there something else you
think the Committee should know that would enhance the Border
Patrol's ability to do their job in regards to rules and
regulations and environmental policy that currently is on the
books?
Mr. Judd. Absolutely. I think that the main issue that we
currently face is the access that we have to these public
lands. Horse patrol is extremely important, and we always have
to have horse patrol. But if we cannot respond in a timely
manner to activity that is currently happening on the border,
we are never going to be able to control the border and we are
never going to be able to secure the border. Without that
access, and without us being able to stop those people from
entering into the country, we will never be able to secure the
border.
Mr. Westerman. Another thing I noticed there was that it is
a system of protection with walls and roads and remote-sensing
equipment. And access is a critical component of that. Even if
you have a wall in a remote area, people could figure out how
to breach that. And if you can't access it, you can't stop
them.
Mr. Arthur, do you have anything to add to that on anything
the Committee should know that you haven't had a chance to tell
us?
Mr. Arthur. Absolutely. I would commend to the Committee
Section 118, Division C, Title I of the Securing America's
Future Act. It will respond to a lot of the issues that Agent
Judd and Mr. Bell have raised today about Border Patrol agents
having their hands tied. Basically, what it would do is it
would waive a variety of laws in very critical situations when
Border Patrol needs to get access and needs to provide crucial
infrastructure along the border.
In fact, I would expand it to include all laws so that
state laws are not able to stop this critical work.
Mr. Westerman. The Chair now recognizes Mr. Beyer for 5
minutes.
Mr. Beyer. Thank you, Mr. Chair, very much.
Mr. Nicol, I want to ask you about flooding. My friend Mr.
Gosar talked about Nogales. There is the waiver authority in
the border wall. What happened in 2008 in Nogales?
Mr. Nicol. In 2008, seasonal monsoon rains that hit this
area every 3 to 5 years came through Sonora and Nogales,
Arizona. Rainfall that goes kind of from uphill in Mexico to
downhill into the United States was dammed by the border wall
that separates the two cities.
In addition to the wall above ground, there had been a wall
built below ground, without discussion with the International
Boundary Water Commission, that backed up water that was going
through the drainage culvert underneath and caused the road
above to heave up so that water was flowing along the top and
pouring out of the ground. Water on the Mexican side was about
up to the door frames. On the U.S. side, it was ankle deep.
Hundreds of buildings were damaged and two people drowned in
Mexico.
After that, there were efforts to retrofit border walls
where they cross washes, but after that retrofitting occurred
in 2011, water backed up behind a section of border wall in
Organ Pipe Cactus National Monument, a section that had been
retrofitted. It then went over the top of the obstruction,
carved out the foundation of the wall, and blew out a 60-foot
wide section. We were told that that was an error and would not
occur again, but in 2014 it occurred again, just outside of
Nogales.
Mr. Beyer. Would a NEPA analysis have made any difference
in Organ Pipe National Monument or Nogales?
Mr. Nicol. More than likely, because the land managers at
Organ Pipe, before the wall went up, foresaw that walls were
going to obstruct debris that would be going down awash during
a flood. They actually commissioned a channel morphology report
to be done as a baseline so they could see how it changed
before the wall and after the wall. So, they saw it coming.
Mr. Beyer. In my statement the last round, I complained
about how candidate Trump and President Trump had promised that
Mexico was going to pay for the wall. In his Fiscal Year 2019
budget we just got the other day, it has an $18 billion request
for building the border wall across the U.S.-Mexico border,
including 65 miles in the Rio Grande Valley. We all know that
initial estimates tend to go way up. But my friend, Mr. Gosar,
made some comment about how Mexico was actually paying.
I was going to ask Congressman Gosar, but he left, anyone
understand what he said and could explain that to me, how
currently we are expecting Mexico to pay for this wall, or some
parts of it?
This is a friendly question. It would have been a friendly
question for him.
Mr. Arthur. If I could, Mr. Beyer, I believe that the
statement had to do with levee walls being built on either side
of the border. And if there were to be a levee on the United
States side and a levee on the Mexican side, that, in fact,
would be a border wall that Mexico would pay for.
Mr. Beyer. OK. Do we anticipate that much of the remaining
wall that has to be built along the Mexican border is going to
be these parallel levees?
Mr. Arthur. That I can't answer. But it actually goes
exactly to the point that Mr. Nicol made, because what he was
saying was, if you put a wall on one side and you don't have a
wall on the other, you end up having a flood control problem.
If you cure the flood control problem, you cure it on both
sides, and that is one way that you would alleviate the
problem.
Mr. Beyer. But we are also depending on Mexico deciding
that they have to build a wall on their side.
Mr. Arthur. As I said, I was surprised to see the
Mexicans--there seems to be this impression that the Mexicans
don't care about border security. This is a real bread-and-
butter issue for them because they don't want the gangs in
their country either. That is why I saw them cutting the
carrizo cane in Ciudad Miguel Aleman. They don't want this, so,
quite frankly, it is possible that that could happen.
Mr. Beyer. Thank you.
Mr. Nicol, you talked about the Tohono O'odham Nation. It
is a long history with the Border Patrol. Nevertheless, I
understand that a waiver is used to construct a vehicle barrier
across their land. Can you describe how that waiver affected
the Tohono O'odham Nation?
Mr. Nicol. They have complained that it has made it more
difficult for them to interact with tribal members on both
sides of the border. Their nation pre-exists the border being
placed there. It restricts access to sacred sites and to family
on the south of the border. And they have come out very
strongly against converting that vehicle barrier into a
pedestrian barrier as has been proposed.
Mr. Beyer. OK. Mr. Chairman, I yield back. Thank you.
Mr. Westerman. The gentleman yields back.
I, again, want to thank all the witnesses for your valuable
testimony, and the Members, to those that are still here, for
our questions. The members of the Committee may have some
additional questions for the witnesses, and we will ask you to
respond to these in writing.
Under Committee Rule 3(o), members of the Committee must
submit witness questions within 3 business days following the
hearing by 5:00 p.m., and the hearing record will be held open
for 10 business days for their responses.
In closing, I ask unanimous consent that the following
items be entered into the record: A November 9, 2017,
Congressional Research Service Report on Federal and Indian
Lands on the U.S. Mexico Border. And as a point of
clarification, a Washington Post article, and articles from The
Daily Signal, and a document from the Center for Immigration
Studies that address the Southern Poverty Law Center's
allegations about the Center for Immigration Studies.
Without objection, so ordered.
If there is no further business, without objection, the
Subcommittee stands adjourned.
[Whereupon, at 12:43 p.m., the Subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Rep. Grijalva Submission
SENT BY E-MAIL
February 14, 2018
Hon. Bruce Westerman, Chairman
Hon. A. Donald McEachin, Ranking Member
Committee on Natural Resources
Subcommittee on Oversight and Investigations
Dear Chairman Westerman and Congressman McEachin:
I am writing to request that the attached research brief be read
into the record for the hearing on ``The Costs of Denying Border Patrol
Access: Our Environment and Security'' scheduled for 10:00 a.m. on
Thursday February 15, 2018. Our statement summarizes findings from
seven years of research on interagency cooperation on the U.S. Mexico
Border conducted by my colleagues and me at the University of Arizona.
We hope that the information we provide is of help to the
subcommittee's deliberations. If members have questions or want further
clarification on our research brief, we would be glad to respond to any
requests.
Sincerely,
Kirk Emerson,
Professor of Practice
School of Government and Public Policy
University of Arizona
______
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
Rep. Grijalva Submission
--Research Brief--``Interagency Cooperation on the U.S.
Mexico Border,'' University of Arizona, February
14, 2018.
Rep. McEachin Submission
--Southern Poverty Law Center, article titled, ``Center for
Immigration Studies,'' accessed February 15, 2018.
Rep. Westerman Submissions
--The Daily Signal, article titled ``The Southern Poverty
Law Center Almost Got Me Killed. Why Does the Media
Still Propagate Its `Hate Map'?'', September 5,
2017.
--The Daily Signal, article titled, ``CNN's `Hate Groups'
Map Puts Conservative Lives at Risk,'' July 13,
2017.
--Letter addressed to House Committee on Natural Resources,
Subcommittee on Oversight and Investigations staff
from Carol Hardy Vincent, Specialist in Natural
Resources Policy, Congressional Research Service,
dated November 9, 2017.
--Center for Immigration Studies, article titled
``Immigration and the SPLC,'' March 11, 2010.
--The Washington Post, article titled ``How labeling my
organization a hate group shuts down public
debate,'' March 17, 2017.
[all]