[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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                     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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
                     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/.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \37\ Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119, 129-30 
(D.D.C. 2007), cert. denied, 554 U.S. 918 (2008).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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:
---------------------------------------------------------------------------
    \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.

---------------------------------------------------------------------------
        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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \42\ CBP Enforcement Statistics FY2018, U.S. Customs and Border 
Protection (undated), available at: https://www.cbp.gov/newsroom/stats/
cbp-enforcement-statistics.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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/.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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:
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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:
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
        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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
        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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
        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:
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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:
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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:
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \67\ Id.

---------------------------------------------------------------------------
    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.

---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
        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\
---------------------------------------------------------------------------
    \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.''
---------------------------------------------------------------------------
    \82\ Id.

---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.

---------------------------------------------------------------------------
    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,'' 
---------------------------------------------------------------------------
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:
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
        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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
        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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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]