    [House Hearing, 116 Congress]
    [From the U.S. Government Publishing Office]

        DESTROYING SACRED SITES AND ERASING TRIBAL CULTURE: THE TRUMP
               ADMINISTRATION'S CONSTRUCTION OF THE BORDER WALL

    =======================================================================

                               OVERSIGHT HEARING

                                   before the

            SUBCOMMITTEE FOR INDIGENOUS PEOPLES OF THE UNITED STATES

                                     of the

                         COMMITTEE ON NATURAL RESOURCES
                         U.S. HOUSE OF REPRESENTATIVES

                         ONE HUNDRED SIXTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                          Wednesday, February 26, 2020

                                   __________

                               Serial No. 116-32

                                   __________

           Printed for the use of the Committee on Natural Resources

                  [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

            Available via the World Wide Web: http://www.govinfo.gov
                                       or
              Committee address: http://naturalresources.house.gov
                                   __________

                          U.S. GOVERNMENT PUBLISHING OFFICE

    40-260 PDF                 WASHINGTON : 2020

                         COMMITTEE ON NATURAL RESOURCES

                          RAUL M. GRIJALVA, AZ, Chair
                        DEBRA A. HAALAND, NM, Vice Chair
       GREGORIO KILILI CAMACHO SABLAN, CNMI, Vice Chair, Insular Affairs
                   ROB BISHOP, UT, Ranking Republican Member

    Grace F. Napolitano, CA              Don Young, AK
    Jim Costa, CA                        Louie Gohmert, TX
    Gregorio Kilili Camacho Sablan,      Doug Lamborn, CO
        CNMI                             Robert J. Wittman, VA
    Jared Huffman, CA                    Tom McClintock, CA
    Alan S. Lowenthal, CA                Paul A. Gosar, AZ
    Ruben Gallego, AZ                    Paul Cook, CA
    TJ Cox, CA                           Bruce Westerman, AR
    Joe Neguse, CO                       Garret Graves, LA
    Mike Levin, CA                       Jody B. Hice, GA
    Debra A. Haaland, NM                 Aumua Amata Coleman Radewagen, AS
    Joe Cunningham, SC                   Daniel Webster, FL
    Nydia M. Velazquez, NY               Liz Cheney, WY
    Diana DeGette, CO                    Mike Johnson, LA
    Wm. Lacy Clay, MO                    Jenniffer Gonzalez-Colon, PR
    Debbie Dingell, MI                   John R. Curtis, UT
    Anthony G. Brown, MD                 Kevin Hern, OK
    A. Donald McEachin, VA               Russ Fulcher, ID
    Darren Soto, FL
    Ed Case, HI
    Steven Horsford, NV
    Michael F. Q. San Nicolas, GU
    Matt Cartwright, PA
    Paul Tonko, NY
    Jesus G. ``Chuy'' Garcia, IL
    Vacancy

                         David Watkins, Chief of Staff
                            Sarah Lim, Chief Counsel
                    Parish Braden, Republican Staff Director
                       http://naturalresources.house.gov
                                     ------

            SUBCOMMITTEE FOR INDIGENOUS PEOPLES OF THE UNITED STATES

                            RUBEN GALLEGO, AZ, Chair
                    PAUL COOK, CA, Ranking Republican Member

    Darren Soto, FL                      Don Young, AK
    Michael F. Q. San Nicolas, GU        Aumua Amata Coleman Radewagen, AS
    Debra A. Haaland, NM                 John R. Curtis, UT
    Ed Case, HI                          Kevin Hern, OK
    Matt Cartwright, PA                  Vacancy
    Jesus G. ``Chuy'' Garcia, IL         Rob Bishop, UT, ex officio
    Vacancy
    Raul M. Grijalva, AZ, ex officio

                                     ------
                                    CONTENTS

                                  ----------
                                                                       Page

    Hearing held on Wednesday, February 26, 2020.....................     1

    Statement of Members:

        Gallego, Hon. Ruben, a Representative in Congress from the
          State of Arizona...........................................     1
            Prepared statement of....................................     2
        Gosar, Hon. Paul A., a Representative in Congress from the
          State of Arizona...........................................     3
            Prepared statement of....................................     4
        Grijalva, Hon. Raul M., a Representative in Congress from the
          State of Arizona...........................................     5
            Prepared statement of....................................     6

    Statement of Witnesses:

        Cameron, Scott, Principal Deputy Assistant Secretary for
          Policy, Management, and Budget, U.S. Department of the
          Interior, Washington, DC...................................    68
            Prepared statement of....................................    69
            Questions submitted for the record.......................    72
        Hodapp, Steve, Retired Independent Contractor and
          Environmental Specialist, Lexington, Virginia..............    37
            Prepared statement of....................................    39
            Questions submitted for the record.......................    42
        Krakoff, Sarah, Moses Lasky Professor of Law, University of
          Colorado School of Law, Boulder, Colorado..................    19
            Prepared statement of....................................    21
            Questions submitted for the record.......................    23

        Norris, Jr., Hon. Ned, Chairman, Tohono O'odham Nation,
          Sells, Arizona.............................................     7
            Prepared statement of....................................     9
            Questions submitted for the record.......................    15
        O'Loughlin, Shannon Keller, Executive Director, Association
          on American Indian Affairs, Rockville, Maryland............    24
            Prepared statement of....................................    26
            Questions submitted for the record.......................    31
        Ortiz, Anna Maria, Director, Natural Resources and
          Environment, U.S. Government Accountability Office,
          Washington, DC.............................................    57
            Prepared statement of....................................    59
            Questions submitted for the record.......................    67

    Additional Materials Submitted for the Record:

        Chairman Grijalva Opening Statement PowerPoint Presentation..    80
        Chairman Grijalva Border Tour Notes, January 20, 2020........    84
        Chairman Grijalva Photo Submissions from Border Wall Tour....    86
        Coalition Comments on Proposed Border Walls in Arizona's Pima
          and Cochise Counties, July 5, 2019 Letter to Paul Enriquez,
          U.S. Border Patrol.........................................    90
        National Parks Conservation Association, July 3, 2019 Letter
          to U.S. Customs and Border Protection......................   106
        Stanton, Hon. Greg, a Representative in Congress from the
          State of Arizona, Statement of.............................   109
        Southern Border Communities Coalition, Statement of..........   110
        U.S. Customs and Border Protection, Roy D. Villareal, Tucson
          Sector Chief, January 10, 2020 Letter to Chairman Norris of
          the Tohono O'odham Nation of Arizona.......................   114
        U.S. Customs and Border Protection, Tucson Sector, Media
          Advisory: Monument Hill Controlled Detonation and Briefing,
          February 24, 2020..........................................   117

        Washington Post, ``Border fence construction could destroy
          archaeological sites, National Park Service finds,''
          September 17, 2019 by Juliet Eilperin and Nick Miroff......   118

        OVERSIGHT HEARING ON DESTROYING SACRED SITES AND ERASING TRIBAL
      CULTURE: THE TRUMP ADMINISTRATION'S CONSTRUCTION OF THE BORDER WALL

                                  ----------

                          Wednesday, February 26, 2020

                         U.S. House of Representatives

            Subcommittee for Indigenous Peoples of the United States

                         Committee on Natural Resources

                                 Washington, DC

                                  ----------

        The Subcommittee met, pursuant to notice, at 3:06 p.m., in
    room 1324, Longworth House Office Building, Hon. Ruben Gallego
    [Chairman of the Subcommittee] presiding.
        Present: Representatives Gallego, Soto, Haaland, Garcia,
    Grijalva, Neguse; Bishop and Gosar.
        Mr. Gallego. Thank you for everyone being here. We will
    start with opening statements on my behalf, and we will not
    move to any type of questions until our Ranking Member shows up
    out of respect for the process here. And I am sure they will be
    joining us soon.

       STATEMENT OF THE HON. RUBEN GALLEGO, A REPRESENTATIVE IN
                   CONGRESS FROM THE STATE OF ARIZONA

        Mr. Gallego. Good afternoon. Today's oversight hearing is
    entitled, ``Destroying Sacred Sites and Erasing Tribal Culture:
    The Trump Administration's Construction of the Border Wall.''
    Before I begin, I want to thank our witnesses here today for
    taking time to testify about the reckless, harmful destruction
    of sacred places along our southern border. As we will learn
    today, this Administration has blasted and bulldozed multiple
    sites, including burial grounds, along the southern border that
    are sacred to the religion and culture of the Tohono O'odham
    Nation without any kind of meaningful tribal consultation, and
    often without advanced notice.
        So far in my tenure as Chairman of the Subcommittee, I have
    been appalled at the utter lack of regard this Administration
    has for upholding our legal trust responsibilities to Indian
    tribes to protect their sovereignty, their way of life and,
    yes, their sacred sites.
        Today, we have reached a new low. Not only has this
    Administration been negligent in its trust responsibility by
    destroying sacred sites, but DHS and the White House refused
    our invitation to be here today to explain their actions. In
    fact, we only learned at 5 p.m. last night, less than 24 hours
    in advance, that the Interior Department would be sending a
    witness today.
        According to the testimony received last night, the
    Interior Department will, in part, argue today that blasting
    sacred sites and cutting down hundred-year-old Saguaro cacti to
    build a border wall will actually ``help us maintain the
    character of these lands and resources.'' The Administration's
    gaslighting argument of ``we have to destroy it in order to
    protect it'' is as plainly ridiculous as it is offensive. It is
    insult to this Committee and to the tribal leaders and
    advocates who have traveled here today to testify.
        This Administration apparently has no shame for the damage
    that it is causing to tribal burial grounds. For the Tohono
    O'odham Nation, this is the equivalent of bulldozing through
    parts of Arlington National Cemetery. They are so shameless
    that, as we speak, CBP is holding a press event in Arizona
    entitled, ``Monument Hill Controlled Detonation and Briefing,''
    which features a briefing from CBP personnel and a live
    detonation on Monument Hill.
        So, rather than sit before this Subcommittee, the
    Department of Homeland Security is detonating sacred burial
    grounds for a captive audience. I want to be clear--when sacred
    cultural sites are destroyed in international conflict, it is
    considered a war crime.
        Earlier this year, we saw President Trump repeatedly
    threaten to destroy sacred sites in Iran, to the condemnation
    of many, including myself, in this country.
        Well, today, as we speak, this White House is doing just
    that on American soil. Places like Monument Hill and the
    Quitobaquito Springs have been held sacred by the O'odham
    people since before the United States existed. You will hear
    from experts and the Tribe itself today that these physical
    places are critical to their culture and religion. It is not
    enough to do a survey of a cultural site only to blast it away.
    It is not enough to remove bone fragments that are found and
    return them to the Tribe when the burial site itself is being
    destroyed. And it is not enough to shoot an e-mail to Chairman
    Norris mere hours before you bulldoze a site his people have
    held sacred since time immemorial.
        These actions are disgusting as well as a flagrant
    violation of the requirement to consult tribes before decisions
    are made and to hold in trust the interests and well-being of
    tribal nations. This behavior is not reflective of the America
    I have fought for, and I cannot imagine what I would do if I
    knew that anyone was desecrating the burial grounds of the men
    and women I fought with at Arlington.
        It is this Committee's mission to shine a light on these
    atrocities and fight like hell to prevent them from continuing.
    That is why I am grateful to have legal experts, tribal
    leaders, and advocates here today. I greatly look forward to
    your testimony.

        [The prepared statement of Mr. Gallego follows:]
     Prepared Statement of the Hon. Ruben Gallego, Chair, Subcommittee for
                    Indigenous Peoples of the United States
        Good afternoon. Today's oversight hearing is entitled ``Destroying
    Sacred Sites and Erasing Tribal Culture: The Trump Administration's
    Construction of the Border Wall.''
        Before I begin, I want to thank our witnesses here today for taking
    the time to testify about the reckless, harmful destruction of sacred
    places along our Southern Border.
        As we will learn today, this Administration has blasted and
    bulldozed multiple sites--including burial grounds--along the Southern
    Border that are sacred to the religion and culture of the Tohono
    O'odham people without any kind of meaningful tribal consultation, and
    often without advanced notice.
        So far in my tenure as Chairman of this Subcommittee, I have been
    appalled at the utter lack of regard this Administration has for
    upholding our legal trust responsibilities to Indian tribes to protect
    their sovereignty, their way of life and--yes--their sacred sites.
        Today, we have reached a new low. Not only has this Administration
    been negligent in its trust responsibility by destroying sacred sites,
    but DHS and the White House refused our invitation to be here today to
    explain their actions. In fact, we only learned at 5 p.m. last night--
    less than 24 hours in advance--that the Interior Department would be
    sending a witness today.
        According to the testimony we received last night, the Interior
    Department will, in part, argue today that blasting sacred sites and
    cutting down hundred-year-old Saguaro cacti to build a border wall will
    actually, ``help us maintain the character of these lands and
    resources.'' The Administration's gaslighting argument of ``we have to
    destroy it, in order to protect it'' is as plainly ridiculous as it is
    offensive. It is insult to this Committee, and to the tribal leaders
    and advocates who traveled here today to testify.
        This Administration apparently has no shame for the damage it is
    causing to tribal burial grounds--for the Tohono O'odham this is the
    equivalent of bulldozing through parts of Arlington National Cemetery.
    They are so shameless that, as we speak, CBP is holding a press event
    in Arizona entitled ``Monument Hill Controlled Detonation and
    Briefing,'' which features a briefing from CBP personnel and a live
    detonation on Monument Hill.
        So rather than sit before this Subcommittee, the Department of
    Homeland Security is detonating sacred burial grounds for a captive
    audience. I want to be clear: when sacred cultural sites are destroyed
    in international conflict, it is considered a war crime.
        Earlier this year, we saw President Trump repeatedly threaten to
    destroy sacred sites in Iran--to the condemnation of many, including
    myself, in this country.
        Well today, as we speak, this White House is doing just that on
    American soil. Places like Monument Hill and Quitobaquito Springs have
    been held sacred by the O'odham peoples since before the United States
    existed. We will hear from the experts and the Tribe itself today that
    these physical places are critical to their culture and religion. It is
    not enough to do a survey of a cultural site only to blast it anyway.
    It is not enough to remove bone fragments that are found and return
    them to the Tribe when the burial site itself is being destroyed. It is
    not enough to shoot an e-mail to Chairman Norris mere hours before you
    bulldoze a site his people have held sacred since time immemorial.
        These actions are disgusting as well as a flagrant violation of the
    requirement to consult with tribes before decisions are made and to
    hold in trust the interest and well-being of Tribal Nations. This
    behavior is not reflective of the America I have fought for, and I
    cannot imagine what I would do if I knew that anyone was desecrating
    the burial grounds of the men and women I fought with at Arlington
    Cemetery.
        It is this Committee's mission to shine a light on these atrocities
    and fight like hell to prevent them from continuing. That's why I am
    grateful to the legal experts, tribal leaders, and advocates here
    today.
        I greatly look forward to your testimony.

                                     ______

        Mr. Gallego. I now recognize the Ranking Member,
    Representative Gosar, for any opening remarks.

       STATEMENT OF THE HON. PAUL A. GOSAR, A REPRESENTATIVE IN
                   CONGRESS FROM THE STATE OF ARIZONA

        Dr. Gosar. Thank you, Mr. Chairman. I have stated before
    that the most important task of the Federal Government is to
    keep its citizens safe. The flow of drugs and people across our
    southern border is extremely dangerous, and our Border Patrol
    is stretched too thin after years of neglect by the previous
    administrations.
        I know too well that violence in countries south of us
    drives illegal migration, but those who promote open borders
    here are doing a favor to the drug cartels, terrorists, and
    human traffickers.
        I have supported legislation that provides comprehensive
    border security by fully funding a border wall and ensuring
    that we are not only stopping dangerous criminals from coming
    here illegally, but we are also bringing criminals to justice
    that are already here. I do, however, believe that we should
    always be respectful in cases where border security interests
    intersect with tribal interests.
        No one in this room believes that there should ever be a
    desecration of cultural artifacts or remains. I am disappointed
    when illegal activities have caused cultural sites to be lost.
        As has been mentioned, broad waiver authority has been
    exercised in certain circumstances with the construction of the
    border wall, but the Department of the Interior has still been
    using and adhering to processes found in the Native American
    Graves Protection and Repatriation Act or NAGPRA.
        Information from the Department of the Interior shows that
    two bone fragments to date have been discovered in the project
    area, dating from the Archaic to Historic time periods. Both
    are in the process of being returned to the nearest tribe, the
    Tohono O'odham. It is my understanding that the water
    monitoring systems have been put in place to ensure levels
    remain the same at Quitobaquito Springs.
        Mr. Gallego. I think you did pretty good. Yes, I am
    impressed.
        Dr. Gosar. I had one try at that.
        Illegal migration and the flow of drugs has a monumental
    impact on our communities. We must work together to help stop
    the harm to tribes, the American people, and to the
    environment.
        I want to thank the witnesses for being here today and look
    forward to their testimony, especially the Chairman. We just
    saw each other earlier last week so 2 weeks in a row.

        [The prepared statement of Dr. Gosar follows:]
       Prepared Statement of the Hon. Paul A. Gosar, a Representative in
                       Congress from the State of Arizona
        Thank you, Mr. Chairman.
        I have stated before that the most important task of the Federal
    Government is to keep its citizens safe. The flow of drugs and people
    across our southern border is extremely dangerous, and our Border
    Patrol is stretched too thin after years of neglect by the previous
    administration.
        I know too well that violence in countries south of us drives
    illegal migration. But those who promote open borders here are doing a
    favor to drug cartels, terrorists, and human traffickers.
        I have supported legislation that provides comprehensive border
    security by fully funding a border wall and ensuring that we're not
    only stopping dangerous criminals from coming here illegally, but we're
    also bringing criminals to justice that are already here. I do,
    however, believe that we should always be respectful in cases where
    border security interests intersect tribal interests.
        No one in this room believes that there should ever be a
    desecration of cultural artifacts or remains. I am disappointed when
    illegal activities have caused cultural sites to be lost.
        As has been mentioned, broad waiver authority has been exercised in
    certain circumstances with the construction of the border wall, but the
    Department of the Interior has still been adhering to processes found
    in the Native American Graves Protection and Repatriation Act or
    NAGPRA.
        Information from the Department of the Interior shows that two bone
    fragments to-date have been discovered in the project area, dating from
    the Archaic to Historic time periods. Both are in the process of being
    returned to the nearest tribe, the Tohono O'odham. It is my
    understanding that water monitoring systems have been put in place to
    ensure levels remain the same at Quitobaquito Springs.
        Illegal migration and the flow of drugs has a monumental impact on
    our communities. We must work together to help stop the harm to tribes,
    the American people, and the environment.
        I want to thank the witnesses for being here today and look forward
    to their testimony.
        Thank you, Mr. Chairman.

                                     ______

        Dr. Gosar. With that, I yield back to you, Mr. Chairman.
        Mr. Gallego. Thank you, Ranking Member. I now yield time to
    Chairman Grijalva for opening remarks.

      STATEMENT OF THE HON. RAUL M. GRIJALVA, A REPRESENTATIVE IN
                   CONGRESS FROM THE STATE OF ARIZONA

        Mr. Grijalva. Thank you very much, Mr. Chairman, and
    Ranking Member for this important hearing and also thanking the
    witnesses for traveling here today and I am going to echo the
    sentiments of Chair Gallego by expressing my deep
    disappointment that the White House and the Department of
    Homeland Security did not send representatives in a timely
    manner and did not respond early enough to this hearing.
        Last month, on Martin Luther King Jr. Day, the Tohono
    O'odham Nation Chairman Norris led me on a tour of sacred sites
    located in the Organ Pipe National Monument. These sites were
    areas of significant cultural and historic importance to the
    Nation, including other tribes in the state of Arizona. As I
    speak, you will see photos from our visit.
        The first site we visited was Monument Hill. This is an
    area sacred to the O'odham people because it is a place where
    they respectfully placed Apache warrior remains following a
    raid. This hill is first documented and mentioned in Father
    Kino's letters when there was nothing there, no communities,
    nothing, except the O'odham people.
        To my knowledge, the Tribe notified the Administration that
    this area was of cultural significance, yet the grading and
    widening of the road was still conducted, as you can see in
    this photo. DHS mentioned that they would back off on
    developing the hill, but the work is still being done. Two
    weeks following the visit at Monument Hill on February 6, 2020,
    I received word that the Department of Homeland Security began
    using explosives on the hill to construct its wall, and we have
    a video of that as well.
        [Video shown.]
        Mr. Grijalva. The second place we visited was Quitobaquito
    Springs, an area mentioned in historic papers as early as the
    17th century. Not only does this area host sacred spring water,
    it is also the location of a village and burial grounds of
    ancestral O'odham people. Tribal archaeologists showed me bone
    fragments in this area.
        On January 27, 2020, just 7 days following the visit, the
    Department of Homeland Security bulldozed the artifacts area
    that held sacred seashells, bone fragments, and pottery
    fragments. Thousands of years of history and cultural
    significance disappeared.
        Since my visit, 50 percent of the sacred sites identified
    by the Nation have been destroyed. The fact that the Federal
    Government has continued to blast this area with human bone
    fragments of several tribes in the 21st century is, quite
    frankly, barbarous.
        What would normally be considered a war crime for
    destroying cultural sites in another country is now considered
    status quo of this President and his administration and this
    needs to stop. In fact, just last week, the Department of
    Homeland Security spokeswoman stated, ``The United States is in
    a border emergency. We are building more wall faster than ever
    before.'' The Department is not consulting the Tribe faster
    than it did before.
        It is clear this Administration will not uphold its trust
    responsibility to tribes. We see that with the inconsistencies
    with each agency's tribal consultation policy and their lack of
    implementing some form of communication with tribes, especially
    when it comes to major projects that drastically impact sacred
    sites.
        As a country, we should be completely appalled by the steps
    this Administration has taken to desecrate the sacred sites.
    And it has been completed when this hideous wall is being
    erected.
        I look forward to hearing from our witnesses today, Mr.
    Chairman, and getting some answers as to why this
    Administration continues to treat tribes as second-class
    citizens on the lands they have owned and lived on before the
    very development of this country.

        [The prepared statement of Mr. Grijalva follows:]
     Prepared Statement of the Hon. Raul M. Grijalva, Chair, Committee on
                               Natural Resources
        Good afternoon, everyone.
        I'd like to thank our witnesses for traveling here today and echo
    the sentiments of Chair Gallego by expressing my deep disappointment
    that the White House and the Department of Homeland Security did not
    send representatives to answer the most important question for this
    hearing and future hearings involving Indian Country--When will you
    stop destroying sacred sites?
        Last month, on Martin Luther King, Jr. Day the Tohono O'odham
    Nation Chairman Norris led me on a tour of sacred sites located in
    Organ Pipe National Monument. These sites were areas of significant
    cultural and historical importance to the Tohono O'odham people
    including other tribes in the state of Arizona. As I speak, you'll see
    photos from our visit.
        The first site we visited was Monument Hill. This is an area sacred
    to the O'odham people because it is a place where they respectfully
    placed Apache warriors following a raid. This hill is first documented
    and mentioned in Father Kino's letters when there was no Sonoita.
        To my knowledge the Tribe notified the Administration that this
    area was of cultural significance, yet the grading and widening of the
    road was still conducted--as you can see in this photo. DHS mentioned
    that they would back off on developing the Hill, but the work is still
    being done. Two weeks following my visit at Monument Hill on February
    6, 2020 I received word that the Department of Homeland Security began
    using explosives on the Hill to construct its wall. We have a video of
    that.
        The second place we visited was just outside Quitobaquito Springs,
    an area mentioned in historical papers as early as the 17th century.
    Not only does this area host sacred spring water, it was also the
    location of a village and burial grounds for the Hia-C'ed O'odham.
    Tribal archeologists showed me bone fragments in this area.
        On January 27, 2020--just 7 days following my visit the Department
    of Homeland Security bulldozed the artifacts area that held sacred
    seashells, bone fragments, and pottery fragments. Thousands of years of
    history and cultural significance gone.
        Since my visit, 50 percent of the sacred sites identified by the
    Nation has been destroyed. The fact that the Federal Government is
    continuing to blast this area with human bone fragments of several
    tribes in the 21st century is barbarous.
        What would normally be considered a war crime for destroying
    cultural sites in another country is NOW considered the status quo of
    this President and his Administration. This needs to stop. In fact,
    just last week the Department of Homeland Security spokeswoman stated,
    ``The United States is in a border emergency, we are building more wall
    faster than ever before.'' The Department is not consulting the Tribe
    faster than it was before.
        It is clear this Administration will not uphold its trust
    responsibility for tribes. We see that with inconsistencies with each
    agency's tribal consultation policy and their lack of implementing some
    form of communication with tribes especially when it comes to major
    projects that drastically impact sacred sites.
        As a country we should be completely appalled by the steps this
    Administration has taken to ensure the desecration of sacred sites is
    completed before its hideous wall is erected.
        I look forward to hearing from our witnesses today and getting some
    answers to why this Administration continues to treat tribes as second-
    class citizens in the lands they owned before the very development of
    this country.

        Thank you.

                                     ______

        Mr. Grijalva. With that, Mr. Chairman, I yield back and
    appreciate the time.
        Mr. Gallego. Thank you, Mr. Chairman. We will now turn to
    our witnesses. I would like to transition to our first panel of
    witnesses for today. Under our Committee Rules, oral statements
    are limited to 5 minutes, but you may submit a longer statement
    for the record if you choose.
        When you begin, the lights on the witness table will turn
    green. After 4 minutes, the yellow light will come on. Your
    time will have expired when the red light comes on, and I will
    ask you to please wrap up your statement. I will also allow the
    entire panel to testify before we question the witnesses. The
    Chair now recognizes the Hon. Ned Norris, the Chairman of the
    Tohono O'odham Nation of Arizona.

      STATEMENT OF HON. NED NORRIS, JR., CHAIRMAN, TOHONO O'ODHAM
                         NATION, SELLS, ARIZONA

        Mr. Norris. Good afternoon, Chairman Gallego, Ranking
    Member Cook, and distinguished members of this Subcommittee. It
    is an honor to have been invited to testify before you today.
    It is my great honor also to recognize Committee Chairman Raul
    Grijalva, in whose district our tribal nation is located. I am
    Ned Norris, Jr., and I am the Chairman of the Tohono O'odham
    Nation, a federally recognized tribe with more than 34,000
    tribal citizens.
        We have lived in what is now Arizona and Northern Mexico
    since time immemorial. With no consideration for our sovereign
    rights or the welfare of our people, the international boundary
    was drawn through our ancestral territory in 1854, separating
    our people and our lands. As a result, our reservation shares a
    62-mile border with Mexico, the longest along the southern
    border of any tribe in the United States.
        Seventeen O'odham communities with approximately 2,000
    tribal citizens are still located in our historical homelands
    in Mexico. O'odham on both sides of the border share the same
    language, culture, religion, and history. Our citizens cross to
    participate in pilgrimages and ceremonies at important
    religious and cultural sites on both sides of the border to
    visit family and friends and to pay respects to love ones
    buried in cemeteries on either side.
        Today, only a portion of our ancestral territory is
    encompassed within the boundaries of our current reservation.
    Originally, our homelands ranged well beyond these boundaries
    and included what is now Organ Pipe Cactus National Monument,
    Cabeza Prieta National Wildlife Refuge, and the San Bernardino
    National Wildlife Refuge.
        The Nation has significant and well-documented connection
    to these lands and the religious, cultural, and natural
    resources located there, including at Quitobaquito Springs and
    at Monument Hill. The National Park Service, the Federal agency
    with management authority at the Organ Pipe National Monument,
    has acknowledged that Quitobaquito Springs is sacred to the
    Nation.
        Nevertheless, CBP contractors working on the border wall
    recently bulldozed a large area near Quitobaquito Springs,
    destroying burial grounds. Another culturally important site is
    Monument Hill, which is the final resting place for many of our
    ancestors, as recovered bone fragments from these show. Earlier
    this month, CBP contractors conducted blasting there, notifying
    the Nation of its plans only the day the blasting occurred. And
    I am sorry to report that just 2 hours ago, CBP conducted
    another controlled detonation at Monument Hill, the Federal
    Government's continued destruction of our religious and
    cultural resources and nothing less but bulldozing of our
    church grounds and our cemeteries. For us, this is no different
    from DHS building a 30-foot wall along Arlington Cemetery or
    through the grounds of the National Cathedral. These
    destructive actions would not have occurred without the waiver
    provision in Section 102(c) of the Illegal Immigration Reform
    and Immigrant Responsibility Act.
        That allows DHS to waive any law it wishes in order to
    expedite border barrier construction. We urge Congress to
    withdraw or at least limit DHS waiver authority that is
    dangerously broad and has allowed DHS nearly dictatorial
    authority to run roughshod over the rights of the Tohono
    O'odham and other border communities in the United States.
    There is no acceptable reason why border communities should not
    be protected by the same laws and have the same ability to
    challenge agency action as Americans living in every other part
    of the United States.
        Making matters worse for us is the lack of an enforceable
    tribal consultation requirement. While agencies pay lip service
    to consultation, tribal governments have little ability to
    enforce consultation polities when Federal agencies choose to
    ignore them. A statutory consultation requirement would help
    put an end to the frequent disregard for our concerns, our
    expertise, and our right to self-determination. The Federal
    Government owes our government and the governments of local
    border communities more respect. We wish to thank Chairman
    Grijalva and Subcommittee Chairman Gallego for their efforts to
    resolve this continuing problem with their introduction in the
    last Congress of the Requirements, Expectations, and Standard
    Procedures for Executive Consultation with Tribes Act and for
    recently holding a hearing on similar draft legislation.
        Preservation of history and culture of O'odham is not just
    important to the Tohono O'odham Nation. It is important to the
    preservation of the history and culture of the United States.
    As we preserve Civil War battlefields and cemeteries and honor
    holy places of worship everywhere in the United States, we also
    must preserve and protect such places of significance to the
    O'odham and first Americans in this part of our country. The
    Nation thanks you for shining a light on an ongoing destruction
    of our cultural resources and sacred sites. I am happy to
    answer any questions.

        [The prepared statement of Mr. Norris follows:]
      Prepared Statement of the Honorable Ned Norris, Jr., Chairman, The
                        Tohono O'odham Nation of Arizona
                      introduction & historical background
        Good afternoon, Chairman Gallego, Ranking Member Cook and
    distinguished members of the Subcommittee. It is an honor to have the
    opportunity to testify before you today on behalf of the Tohono O'odham
    Nation of Arizona. I also want to recognize and honor Chairman
    Grijalva, in whose district our Tribal Nation is located.
        I am Ned Norris, Jr. and I am the Chairman of the Tohono O'odham
    Nation, a federally recognized tribe with more than 34,000 enrolled
    tribal citizens. Our ancestors have lived in what is now Arizona and
    northern Mexico since time immemorial. With no consideration for our
    people or our sovereign and historical rights, the international
    boundary was drawn through our ancestral territory in 1854, separating
    our people and our lands. As a result, today our Main Reservation
    shares a 62-mile border with Mexico--the second-longest international
    border of any tribe in the United States, and the longest on the
    southern border. Seventeen O'odham communities with approximately 2,000
    members are located in our historical homelands in Mexico. O'odham on
    both sides of the border share the same language, culture, religion and
    history. Tribal members regularly engage in border crossings for
    pilgrimages and ceremonies at important religious and cultural sites on
    both sides of the border. We also cross the border to visit family and
    friends.
        Today, only a portion of our ancestral territory is encompassed
    within the boundaries of our current Reservation. Our original
    homelands ranged well beyond these boundaries, and included what is now
    the Organ Pipe Cactus National Monument (adjacent to the western
    boundary of the Nation's Reservation and a UNESCO biosphere
    reserve),\1\ the Cabeza Prieta National Wildlife Refuge, and the San
    Bernardino National Wildlife Refuge to the east. The Nation has
    significant and well-documented connections to these lands and the
    religious, cultural and natural resources located there.
    ---------------------------------------------------------------------------
        \1\ Biosphere reserves are areas with unique ecosystems recognized
    by the United Nations Educational, Scientific and Cultural Organization
    (UNESCO) as special places for testing interdisciplinary approaches to
    managing social and ecological systems. Each reserve promotes solutions
    reconciling the conservation of biodiversity and sustainable use.
    http://www.unesco.org/new/en/natural-sciences/environment/ecological-
    sciences/biosphere-reserves/.

                  [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

      .epsthe nation supports and is actively engaged in border security
                                    efforts
        The Nation has long been at the front lines of securing the border.
    Over the past decade the Nation has spent an annual average of $3
    million of our own tribal funds on border security and enforcement to
    help meet the United States' border security responsibilities. The
    Nation's police force typically spends more than a third of its time on
    border issues, including the investigation of immigrant deaths, illegal
    drug seizures, and human smuggling.

        The Nation also has long-standing, positive working relationships
    with Customs and Border Protection (CBP), Immigration and Customs
    Enforcement (ICE) and other Federal law enforcement agencies. The
    Nation has entered into several cooperative agreements with CBP and
    ICE, and pursuant to numerous Tohono O'odham Legislative Council
    resolutions has authorized a number of border security measures on its
    sovereign lands to help CBP. Some examples include:

         High Intensity Drug Trafficking (HIDTA) Task Force: The
                Nation leads a multi-agency anti-drug smuggling task force
                staffed by Tohono O'odham Police Department detectives, ICE
                special agents, Border Patrol agents, and the FBI. This is
                the only tribally-led High Intensity Drug Trafficking
                (HIDTA) Task Force in the United States. In 2018, the
                Nation's Task Force Commander W. Rodney Irby received an
                award recognizing him as the HIDTA National Outstanding
                Task Force Commander.

         ICE office and CBP forward operating bases: Since 1974,
                the Nation has authorized a long-term lease for an on-
                reservation ICE office. The Nation also approved leases for
                two CBP forward operating bases that operate on the
                Nation's lands 24 hours, 7 days a week.

         Vehicle barriers on our lands: CBP constructed extensive
                vehicle barriers that run the entire length of the tribal
                border and a patrol road that parallels it.

         CBP checkpoints on our lands: The Nation has authorized
                CBP checkpoints on the Nation's major east-west highway to
                Tucson and the northern highway to Casa Grande.

         Integrated Fixed Towers: The Nation approved a lease of
                its lands to allow CBP to build an Integrated Fixed Tower
                (IFT) system that will include surveillance and sensor
                towers with associated access roads on the Nation's
                southern and eastern boundaries to detect and help
                interdict illegal entries.

         Shadow Wolves, an ICE tactical patrol unit: The Nation
                also has officers that are part of the Shadow Wolves, an
                ICE tactical patrol unit based on our Reservation which the
                Nation played a role in creating. The Shadow Wolves are the
                only Native American tracking unit in the country, and its
                officers are known for their ability to track and apprehend
                immigrants and drug smugglers, using traditional tracking
                methods. The Shadow Wolves have apprehended countless
                smugglers and seized thousands of pounds of illegal drugs.

        ongoing and imminent harm to sacred sites and cultural resources
        Although the Nation has authorized these border security measures
    on our tribal lands and we share the Federal Government's concerns
    about border security, we strongly oppose the construction of a border
    wall on our southern boundary. A wall is extremely expensive for the
    American taxpayer, is ineffective in remote geographic areas like ours,
    and is highly destructive to the religious, cultural and environmental
    resources on which our members rely and which make our ancestral lands
    sacred to our people. Ongoing construction of the wall already has and
    will continue to disturb and destroy culturally significant sites and
    cultural resources, tribal archeological resources, and sacred sites
    and desecrate human remains.
        The Nation has detailed the negative impacts of the border wall
    construction that currently is underway in Arizona, which DHS is
    calling Tucson Sector Projects 1, 2, and 3, and Yuma Sector 3, in
    several amicus briefs that the Nation has filed in litigation
    challenging construction of the border wall.\2\ Tucson Sector Projects
    1 and 2 involve construction of a 43-mile long, 30-foot high concrete-
    filled steel bollard fence (pedestrian barrier or wall) to replace
    existing vehicle barriers and pedestrian fencing near the Lukeville
    Port of Entry. The Yuma Sector Project contemplates over 30 additional
    miles, connecting with these projects, and extending through Cabeza
    Prieta National Wildlife Refuge and Organ Pipe Cactus National
    Monument, and ending less than 2 miles from the western boundary of the
    Nation's Reservation. Similar construction is moving forward to the
    east of the Nation's Reservation in Tucson Sector Project 3, which
    includes the San Bernardino National Wildlife Refuge. These projects
    have caused and will continue to cause significant and irreparable harm
    to cultural and natural resources of vital importance to the Nation,
    including damage to those resources from construction and associated
    impacts off the reservation, as well as damage caused by increased
    migrant traffic and interdiction on our tribal lands.
    ---------------------------------------------------------------------------
        \2\ See, e.g., Sierra Club and Southern Border Communities
    Coalition v. Donald J. Trump, No. 4:19-cv-00892-HSG, Amicus Curiae
    Brief of Tohono O'odham Nation in Support of Plaintiff's Motion for
    Supplemental Preliminary Injunction (June 18, 2019, N.D. Ca.) (Dkt. No.
    172); Amicus Curiae Brief of Tohono O'odham Nation in Support of
    Plaintiff's Motion for Partial Summary Judgment (October 18, 2019)
    (Dkt. No. 215).

        The Federal Government itself acknowledged the importance of the
    Nation's interest in the areas now impacted by ongoing and contemplated
    wall construction for the Tucson and Yuma Sector Projects. For example,
    the National Park Service confirmed in its General Management Plan for
    the Organ Pipe Cactus National Monument the importance of Quitobaquito
    Springs to the Nation, which is located about 200 yards from the border
    and which is an important part of the O'odham salt pilgrimage every
    ---------------------------------------------------------------------------
    year:

            There are 11 springs in the monument, 8 of which are located at
            Quitobaquito, by far the largest source of water. The pond and
            dam at Quitobaquito were constructed in 1860, and the resulting
            body of water is one of the largest oases in the Sonoran
            Desert. The site is also sacred to the O'odham, who have used
            the water from this spring for all of their residence in the
            area.

            . . .

            There still exist sites within the monument which are sacred to
            the O'odham, including Quitobaquito Springs . . . Even to the
            present day, the O'odham continue to visit the monument to
            collect sacred water from the Springs, to gather medicinal
            plants, and to harvest the fruit of the organ pipe and saguaro
            cactus.\3\
    ---------------------------------------------------------------------------
        \3\ U.S. National Park Service, Organ Pipe Cactus National
    Monument, Final General Management Plan, Development Concept Plans,
    Environmental Impact Statement (Feb. 1997), at 30, 33, available at
    https://www.nps.gov/orpi/learn/management/upload/fingmp.pdf.

        The Park Service also has recognized that there are O'odham burial
    sites within Quitobaquito.\4\ In October 2019, the National Park
    Service notified the Nation that it had found a human bone fragment
    near Quitobaquito Springs, underscoring that it is a resting place for
    our ancestors. Yet despite the Federal Government's documented
    recognition of Quitobaquito Springs as a site sacred to the Nation, and
    despite the Nation's long-standing relationship with CBP, Federal
    contractors working on the Tucson Sector border wall recently bulldozed
    and bladed a large area near Quitobaquito Springs, destroying a burial
    site that the Nation had sought to protect and irreparably damaging the
    most unique and significant oasis in the Sonoran Desert. There was no
    advance consultation about the destruction of this site, no advance
    notice given, and no effort to mitigate or avoid the irreparable damage
    done to this sacred site.
    ---------------------------------------------------------------------------
        \4\ Id. at 158, citing Anderson, Keith M., Bell, Fillman and
    Stewart, Yvonne G., Quitobaquito: A Sand Papago Cemetery, Kiva, 47, no
    4 (Summer, 1982) at 221-22; see also Bell, Fillman, Anderson, Keith M.
    and Stewart, Yvonne G., The Quitobaquito Cemetery and Its History, U.S.
    National Park Service, Western Archeological Center (Dec. 1980),
    available at http://npshistory.com/series/anthropology/wacc/
    quitobaquito/report.pdf.
    ---------------------------------------------------------------------------
        Earlier this month, CBP contractors also conducted blasting in
    support of wall construction efforts at another culturally important
    site within Organ Pipe Cactus National Monument known as Monument
    Hill.\5\ Monument Hill was historically used for religious ceremonies
    by the Hia-C'ed O'odham (with whom the Nation has a shared ancestry).
    It is the site of historical battles involving the O'odham and Apache
    and is believed to be the final resting place for many tribal
    ancestors, as recovered bone fragments there attest. CBP undertook this
    action despite the fact that on multiple occasions last year the Nation
    expressed its concerns, and in December 2019, CBP and other Federal
    officials met with the Nation's Tribal Historic Preservation Officer
    and staff, who explained the significance of Monument Hill and conveyed
    the Nation's concerns about damage from the planned wall construction.
    Nevertheless, CBP completely ignored the Nation's concerns and
    suggestions for mitigating potential impacts from the wall
    construction, and failed to even notify the Nation of its plans to
    blast Monument Hill until the day that the blasting occurred.
    ---------------------------------------------------------------------------
        \5\ See Firozi, Paulina, The Washington Post, Sacred Native
    American Burial Sites are being Blown Up for Trump's Border Wall,
    Lawmaker Says (Feb. 9, 2020), available at https://
    www.washingtonpost.com/immigration/2020/02/09/border-wall-native-
    american-burial-sites/.
    ---------------------------------------------------------------------------
        This disrespect for our sacred sites and their desecration at the
    hands of our Federal Government is deeply painful. These sites are not
    only sacred to the Nation--they are a part of our shared cultural
    heritage as United States citizens. As Americans, we all should be
    horrified that the Federal Government has so little respect for our
    religious and cultural values, and does not appear to have any
    intention of slowing down enough to understand or avoid the harm it is
    causing.
        In response to the concerns raised in the press and by
    environmental groups about the blasting at Monument Hill, CBP stated
    that it had conducted unspecified ``surveys'' and found no cultural or
    historical sites within the project area (defined as the 60-foot-wide
    area of land adjacent to the border called the Roosevelt Reservation)
    \6\--but this statement is entirely inconsistent with the information
    regarding bone fragments and the ceremonial significance of Monument
    Hill that was provided to CBP by the Nation's staff. CBP also said that
    it had an ``environmental monitor'' in attendance to ensure that work
    would stop if any ``unidentified culturally sensitive artifacts'' were
    found during the blasting. But the fact is that CBP has one monitor in
    place for the entirety of Organ Pipe Cactus National Monument, and
    there are multiple crews working on clearing and constructing the wall
    at different locations along the border within the Monument, making it
    extremely unlikely that one monitor can adequately cover all the
    locations. Nor is it clear that the monitor was aware of the
    significance of Monument Hill nor likely that he could identify human
    bone fragments should any be recovered during the blasting--bone
    fragments typically require additional testing to determine whether
    they are human or animal.
    ---------------------------------------------------------------------------
        \6\ Carranza, Rafael, The Republic, No Cultural Sites Found Where
    Crews are Blasting Sacred Mountain for Border Wall, Officials Say (Feb.
    13, 2020), available at https://www.azcentral.com/story/news/politics/
    border-issues/2020/02/13/customs-border-protection-no-cultural-sites-
    near-blasting-border-wall-tohono-oodham-nation/4743103002/.
    ---------------------------------------------------------------------------
        CBP's claims also are completely at odds with the results of a July
    2019 National Park Service survey, which identified five new
    archeological sites (of pre-contact Native American artifacts) and a
    large number of additional archeological resources within the 60-foot-
    wide Federal easement along the border in Organ Pipe. The survey noted
    that many existing archeological sites will be impacted or destroyed by
    the border wall construction, and highlighted that many areas along the
    Organ Pipe border remain unsurveyed--making consultation and careful
    surveying critical before additional construction occurs.\7\
    ---------------------------------------------------------------------------
        \7\ Veech, Andrew S., Archeological Survey of 18.2 Kilometers (11.3
    Miles) of the U.S.-Mexico International Border, Organ Pipe Cactus
    National Monument, Pima County, Arizona, U.S. National Park Service,
    Intermountain Region Archeology Program (July 2019), available at
    https://games-cdn.washingtonpost.com/notes/prod/default/documents/
    cbd7ef6a-3b5b-4608-9913-4d 488464823b/note/7a429f63-9e46-41fa-afeb-
    c8e238fcd8bb.pdf (discovery of 5 new archeological sites and 55
    isolated finds; recommending additional evaluation of sites, noting
    that 17 identified archeological sites will be destroyed by the border
    wall construction, and that many areas along the border within the
    Monument remain unsurveyed).
    ---------------------------------------------------------------------------
        But such care and consultation seem extremely unlikely, as the
    Federal Government continues to plow full steam ahead with construction
    of the border wall, with no apparent concern for tribal culture or
    religious sites. Indeed, a similar fate likely awaits many other of the
    Nation's cultural and sacred sites, including a burial site immediately
    adjacent to the border and another site called Las Playas, both located
    in Cabeza Prieta National Wildlife Refuge.\8\ These and other sites of
    significance to the Nation, including some in the immediate vicinity of
    Tucson Sector Project 3 in the San Bernardino Valley, have been
    documented in other Federal reports, although these areas are less well
    surveyed so the potential for destruction of cultural and natural
    resources by construction of a border wall is high.\9\ But there is
    little question that the ongoing construction of 30-foot-high steel
    bollard wall in this area will have serious negative impacts,
    destroying tribal culture and sacred sites. Finally, while the focus of
    this hearing is on sacred sites, I must underscore as well the
    environmental damage that ongoing wall construction is wreaking on
    wildlife and trees, cacti, and other plants of documented significance
    to the Nation. Also adversely affected are vitally important sources of
    water, and we are deeply concerned about flooding in those areas where
    construction occurs.\10\ All for the sake of a vanity project that will
    not effectively secure the border.
    ---------------------------------------------------------------------------
        \8\ Carranza, Rafael, The Republic, Tohono O'odham Historic Sites
    at Risk as Border Wall Construction Advances in Arizona (Jan. 20,
    2020), available at https://www.azcentral.com/story/news/local/pinal/
    2020/01/21/tohono-oodham-historic-sites-risk-over-border-wall-
    construction/4527025002/.
        \9\ Fish, Paul R.; Fish, Suzanne K.; Madsen, John H., Prehistory
    and early history of the Malpai Borderlands: Archaeological synthesis
    and recommendations, U.S. Department of Agriculture, Forest Service
    (2006) at 29-30, available at https://www.fs.fed.us/rm/pubs/
    rmrs_gtr176.pdf; U.S. Fish and Wildlife Service, Cabeza Prieta National
    Wildlife Refuge: Comprehensive Conservation Plan, Wilderness
    Stewardship Plan and Environmental Impact Statement (Aug. 2006) at 172,
    586, available at https://www.fws.gov/uploadedFiles/CPNWREIS.pdf; U.S.
    Fish and Wildlife Service, Environmental Assessment of the Malpai
    Borderlands Habitat Conservation Plan (July 26, 2008) at 17, available
    at https://www.fws.gov/southwest/es/arizona/Documents/HCPs/Malpai/
    MBHCP%20EA%20w%20FONSI.pdf.
        \10\ See Sierra Club, Amicus Curiae Brief of Tohono O'odham Nation
    at 7-8.
    ---------------------------------------------------------------------------
        formal government-to-government consultation with the nation is
                                    required
        The Federal Government's actions are even more offensive because it
    has completely ignored its trust responsibility to tribes and its legal
    obligation to consult with the Nation regarding ongoing and planned
    construction of the border wall--before decisions are made about
    construction that will impact tribal resources and lands. Section
    102(c) of the Illegal Immigration Reform and Immigrant Responsibility
    Act (IIRIRA) provides the Secretary of DHS with exceptionally broad
    authority to ``waive all legal requirements'' he determines are
    necessary to ensure expeditious construction of border barriers and
    roads. See 8 U.S.C. Sec. 1701 note. In 2008, DHS issued a waiver that
    covers a large portion of the southern border in California, New
    Mexico, Texas and Arizona, including the Tohono O'odham Nation's border
    with Mexico. See 73 Fed. Reg. 19087 (April 8, 2008) (correction). In
    2019, DHS issued additional waivers covering the area of the border
    where the Tucson Sector Projects are underway. See 84 Fed. Reg. 21798
    (May 15, 2019). In fact, this Administration has issued multiple
    waivers to facilitate construction of the border wall--17 times in the
    last 2\1/2\ years. As a result, DHS has been given a complete pass to
    entirely ignore virtually all potentially applicable Federal
    environmental, cultural and religious protection laws, and all Federal,
    state or other laws, regulations and legal requirements deriving from
    or related to the subject of those Federal laws. Id. at 19080. As you
    know, with its aggressive raiding of other Federal agency budgets, DHS
    is also now ignoring the budget limitations Congress placed on this
    construction.
        However, IIRIRA also requires DHS to consult with Indian tribes,
    the Department of the Interior, state and local governments and
    property owners ``to minimize the impact on the environment, culture,
    commerce and quality of life'' of the construction of the border wall.
    IIRIRA Section 102(b)(1)(C). To date, DHS has not complied with this
    statutory directive, and has failed to engage in any formal government-
    to-government consultation with the Nation regarding the ongoing
    construction of the border wall and the serious harm that it is causing
    to the Nation. Although CBP has engaged in telephonic conversations and
    meetings with the Nation, primarily with the Nation's staff rather than
    its leadership, these actions do not constitute the government-to-
    government consultation that is required by law. The failure to engage
    in formal consultation with tribal governments before decisions are
    made that will affect tribal rights and interests violates not just
    IIRIRA, but Executive Order No. 13175, ``Consultation and Coordination
    with Indian Tribal Governments'' (Nov. 6, 2000), and the DHS Tribal
    Consultation Policy (Sections II.B. and III.A), as well as the Federal
    Government's general trust obligation to respect tribal sovereignty and
    engage with tribes on a government-to-government basis.
        In November 2019, the Nation wrote a letter to CBP requesting that
    CBP engage in the statutorily and administratively required
    consultation and proposed several mitigation measures (including a
    buffer zone around Quitobaquito Springs) to address the harms that were
    occurring to the Nation's resources as a result of the Tucson Sector
    wall construction. In its January 2020 response to the Nation's letter,
    CBP declined all of the Nation's requests--for information, for a
    schedule, and for mitigation.\11\ In the letter, CBP also declined to
    engage in formal government-to-government consultation with the Nation
    prior to taking border wall construction actions impacting the Nation--
    while at the same time suggesting that it valued the ongoing
    communication between the Nation and CBP. Those communications are
    valuable, but meaningful consultation must be a two-way street. CBP
    cannot simply ignore the Nation's concerns or proposed mitigation
    measures, and turn around and bulldoze sacred sites, destroy cultural
    resources, and deplete precious ground water--that is far from the
    consultation that is required by the law.
    ---------------------------------------------------------------------------
        \11\ CBP did agree not to drill any new wells within 5 miles of
    Quitobaquito, but the Nation remains concerned that the continued use
    of water in connection with construction of the border wall will
    deplete ground water resources in the area on which the Nation relies.
    ---------------------------------------------------------------------------
        Furthermore, because the reprogrammed funding originally
    appropriated to the Department of the Defense (DOD) is being used to
    fund the ongoing construction in the Tucson and Yuma Sectors,
    additional consultation requirements are at issue. Section 8141 of the
    FY 2019 DOD Appropriations Act prohibits the use of funding made
    available under the Act in contravention of Executive Order 13175
    (requiring tribal consultation) and the FY 2020 DOD Appropriations Act
    contains a substantively identical provision in Section 8129. In
    addition, DOD has its own tribal consultation policy pursuant to
    Executive Order 13175 that requires DOD to engage in meaningful
    consultation with tribes whenever an action has the potential to
    significantly affect Indian lands, tribal rights, and protected tribal
    resources (whether such resources are located on or off Indian lands),
    and requires that such consultation be completed before implementation
    of the proposed action impacting the affected tribe. DOD Instruction
    4710.02 (Sept. 24, 2018).
        In contravention of the FY 2019 and 2020 DOD Appropriations Acts
    and its own consultation policy, to date DOD has not conducted any
    government-to-government consultation with the Nation. On February 7,
    2020, the Nation wrote a letter to Secretary of Defense Mark Esper
    requesting that DOD immediately engage in government-to-government
    consultation with the Nation consistent with the FY 2019 and FY 2020
    DOD Appropriations Acts and the DOD tribal consultation policy and that
    no DOD funds be expended on border barrier construction impacting the
    Nation until consultation has occurred. We have not yet received a
    response.
        DHS (and DOD) must engage in a more thorough and substantive
    consultation and review process that is respectful of our government-
    to-government relationship, and that recognizes the Tohono O'odham
    Nation's unique history and relationship to these lands and resources.
    Meaningful consultation requires DHS and DOD to consider the
    information provided by the Nation before proceeding to construct
    border barriers that damage and destroy our sacred sites and cultural
    resources, and before making any decision about what type of border
    security measures are most appropriate in and around our ancestral
    homelands. Although DHS has committed to ``formal, government-to-
    government consultation with the Tohono O'odham Nation prior to taking
    actions that may impact the Tribe and its members in Arizona'' as
    required by the law and its tribal consultation policy, DHS currently
    is giving little more than lip service to consultation. DHS and DOD
    must engage in formal, government-to-government consultation before
    proceeding further with border wall construction that irreparably harms
    tribal cultural resources and sacred sites, and as a consequence, harms
    the O'odham and harms all of us, by losing part of our cultural
    heritage.
                                   conclusion
        Two things are clear to us about the law as it currently stands.
    One is that Congress must withdraw or at least better limit DHS's
    authority to unilaterally give itself waivers to circumvent every
    Federal statute on the books--this authority is dangerously broad, and
    has allowed DHS nearly unchallengeable, dictatorial authority to run
    roughshod over the rights of the Tohono O'odham and every other border
    community in the United States. The Federal Government has abused its
    authority, trampling the rights of local communities and local
    governments. This kind of non-challengeable authority may be tolerated
    in a totalitarian state, but it does not sit well among the statutes
    that are supposed to protect our freedoms in the United States of
    America.
        The second is that Chairman Grijalva's introduction in the last
    Congress of legislation that would put into Federal law meaningful
    consultation requirements through his proposed Requirements,
    Expectations, and Standard Procedures for Executive Consultation with
    Tribes Act (RESPECT Act), and this Subcommittee's hearing on similar
    draft legislation last April, is right on target and desperately
    needed. The fact is that while the Federal agencies pay lip service to
    tribal consultation, there is precious little way for tribal
    governments to enforce current consultation policies when the agencies
    choose to ignore them. Enactment of a statutory consultation
    requirement would help put an end to the Federal Government ignoring
    our concerns, our expertise, and our right to self-determination. The
    Federal Government owes our government, and the governments of the
    local communities and states around us, more respect. We want to thank
    Chairmen Grijalva and Gallego for their efforts to resolve this
    continuing problem.
        O'odham have lived in what is now Arizona and Mexico long before
    the border was drawn through our lands. It should be no surprise that
    we have deep religious, cultural and historic ties to these lands where
    we have so long lived. The Federal Government's continued destruction
    of sites and resources that have religious and cultural significance to
    our people amounts to the bulldozing of our church grounds and our
    civilian and military cemeteries. For us, this is no different than DHS
    building a 30-foot wall through Arlington Cemetery, through the grounds
    of the National Cathedral, or through George Washington's Mt. Vernon.
        Preservation of the history and culture of the Tohono O'odham
    people is not just important to the Tohono O'odham Nation--it is
    important to the preservation of the history and culture of the United
    States as a whole. As we preserve Lincoln's house in Springfield,
    Illinois, as we preserve Civil War battlefields and cemeteries, and as
    we honor holy places of worship everywhere in the United States, we
    also must preserve and protect such places of significance to the
    O'odham, the first Americans in this part of our great country.
        The Nation appreciates the Committee's interest in understanding
    more about the harms to our cultural resources and sacred sites that
    already have occurred, and that will continue to occur as the result of
    the construction of a border wall within our ancestral territory. We
    welcome a continued dialogue with the Federal Government on these
    issues, and we urge Congress to exert its authority to protect our
    sacred sites.

                                     ______

     Questions Submitted for the Record to the Honorable Ned Norris, Jr.,
                           the Tohono O'odham Nation
                 Questions Submitted by Representative Grijalva
        Question 1. You mention the connections that the Nation continues
    to have with its ancestral homelands in Mexico, despite the presence of
    the border.

        1a. Has the border ever prevented tribal members from returning to
    these homelands or engaging in ceremonies?

        Answer. Yes, tribal members have been detained and deported by
    Border Patrol for attempting to travel through our traditional lands,
    as part of cultural and religious traditions. Federal authorities also
    have prevented tribal members from transporting raw materials and goods
    essential to our spirituality, economy, and traditional culture, and
    have confiscated cultural and religious items, such as feathers, pine
    leaves or sweet grass.

        Question 2. In your testimony you mention my bill, the RESPECT Act.
    In your opinion, how would laws like the RESPECT Act prevent situations
    like this from occurring again in the future?

        Answer. Laws like the RESPECT Act would help to prevent the
    destruction of sacred sites from occurring again in the future by
    mandating meaningful, government-to-government consultation with tribal
    nations and further clarifying what that consultation should look like.
    The Act expresses the sense of Congress that effective and meaningful
    consultation requires a ``two-way exchange of information'',
    consideration ``of each other's opinions'', and ``seeking of agreement
    on how to proceed concerning the issues at hand''; and that
    consultation ``constitutes more than simply notifying an Indian Tribe
    about a planned undertaking.'' The Act also would require that
    consultation be completed before any Federal funds are expended for
    activities that may have substantial direct impacts on tribal lands or
    interests, including tribal cultural practices or areas of cultural or
    religious importance. In addition to requiring consultation, the Act
    would provide a judicial remedy in the event a Federal agency fails to
    engage in meaningful consultation with tribal governments.
        With respect to the ongoing border wall construction, the Federal
    Government has not engaged in meaningful government-to-government
    consultation with the Nation, nor does there appear to be an effective
    remedy to address the Federal Government's complete disregard of the
    Nation's sovereignty, cultural resources and sacred sites. The RESPECT
    Act, or similar laws, would be an important first step in requiring the
    Federal Government to live up to its trust responsibility and its legal
    obligation to consult with the Nation (and other affected tribes),
    consider the Nation's concerns and reach agreement on how to address
    and mitigate those concerns before undertaking actions that destroy
    tribal culture, archeological resources, and sacred sites, as well as
    harming the environment and natural resources.

                 Questions Submitted by Representative Gallego
        Question 1. Your testimony begins with a reflection upon the rich
    history of the Tohono O'odham Nation and its pre-existence to the U.S.-
    Mexico border.

        1a. What difficulties were created when the international boundary
    was drawn through your ancestral homelands in 1854?

        Answer. When the international boundary was drawn through the
    Nation's ancestral lands in 1854, there was no consideration of the
    Nation's sovereign or historical rights or the interests of our people.
    The boundary separated our lands and our people--separating us from
    other tribal members who share the same language, history and religion.
    Although the border initially was not strictly enforced, it created a
    colonial obstacle to our traditional way of life, interfering with our
    ability to collect traditional foods and materials important to our
    culture, and to visit family members and participate in ceremonies and
    pilgrimages that take place at sacred sites in Mexico. The division of
    O'odham lands also resulted in an artificial division of O'odham
    society, and the O'odham bands are now broken up into four federally
    recognized tribes: the Tohono O'odham Nation, the Gila River Indian
    Community, the Ak-Chin Indian Community and the Salt River (Pima
    Maricopa) Indian community, which are politically and geographically
    distinct.

        1b. How does the border impact the daily lives of the Nation's
    members?

        Answer. The border impacts the daily lives of the Nation's members
    in many significant ways. Vehicle barriers and a road runs along the
    border for the entire 62 miles of the reservation border, which is
    patrolled by the U.S. Border Patrol. O'odham members must produce
    border identification cards to cross into the United States. On many
    occasions, Border Patrol has detained and deported Tohono O'odham
    members for attempting to travel through our traditional lands,
    engaging in migratory traditions that are an important part of our
    culture, religion and economy. The border is an artificial barrier to
    our freedom to traverse our lands, and makes it more difficult to visit
    family and friends who live in Mexico, and participate in pilgrimages
    and ceremonies at important cultural and religious sites in Mexico.
        The border also impairs our ability to collect traditional foods
    and materials needed to sustain our culture. U.S. Customs has prevented
    tribal members from transporting raw materials and goods essential to
    our spirituality, economy, and traditional culture, and has confiscated
    cultural and religious items, such as feathers, pine leaves or sweet
    grass. The vehicle barriers prevent cattle from grazing or reaching
    watering holes across the border, and increased Border Patrol traffic
    often results in our livestock being hit and killed, as well as
    increased damage to our roads, which BIA does not have the funding to
    repair.
        Finally, our members who live near the border are directly affected
    by border-related criminal activity, including drug trafficking and
    human smuggling. Particularly in remote areas, our Tohono O'odham
    Police Department (TOPD) officers are the first and often the only
    responders to border-related crime on the reservation. TOPD spends
    about a third of its budget on border security, and the Nation spends
    more than $3 million annually to help meet the United States' border
    security responsibilities. There is limited Federal funding available
    to assist with these responsibilities, and the Nation is responsible
    for investigating immigrant deaths and funding autopsies at a cost of
    $2,600 per autopsy, plus supplies and detective investigative hours,
    with no assistance from DHS. The Nation also absorbs the cost of
    reclaiming damages to its natural resources, including vehicles and
    trash abandoned by smugglers, and the control of wildland fires
    resulting from cross-border illegal activity.

        Question 2. If possible, can you also speak to the success and
    resiliency of the Nation's High Intensity Drug Trafficking (HIDTA) Task
    Force and Shadow Wolves?

        2a. Would you agree that the establishment of these unique and
    successful programs speak to the importance of tribal self-governance?

        Answer. The TOPD-led HIDTA Task Force is a multi-agency drug
    smuggling task force--the only tribe-led HIDTA Task Force in the
    country--and is staffed by TOPD detectives, ICE special agents, Border
    Patrol agents, and the FBI. The Task Force has been extremely
    successful in combatting drug smuggling on the Nation's lands, and is
    responsible for seizing huge quantities of drugs, most recently
    methamphetamine and counterfeit Oxycodone pills containing Fentanyl. In
    2018, the Nation's Task Force Commander W. Rodney Irby received an
    award as the HIDTA National Outstanding Task Force Commander.
        The Shadow Wolves, which Congress established in 1972, is an ICE
    tactical patrol unit based on our Reservation, which the Nation played
    a role in creating. The Shadow Wolves is the only Native American
    tracking unit in the country, and has members from Tohono O'odham as
    well as other tribes. The Shadow Wolves are known for their ability to
    track and apprehend immigrants and drug smugglers, using traditional
    tracking methods. The unit has apprehended countless smugglers and
    seized thousands of pounds of illegal drugs.
        The creation and success of both the TOPD-led High Intensity Drug
    Trafficking (HIDTA) Task Force and the Shadow Wolves illustrate the
    importance of tribal self-governance, as well as the importance of
    listening to the voices and experience of tribal citizens and including
    them in border security efforts.

        2b. Considering the Nation's extensive work with border patrol
    initiatives, how effective do you believe this new border wall will be?

        Answer. Based on our long-standing experience on the front lines of
    border security, the new border wall is not an effective way to secure
    the border. Building a wall (also called pedestrian fencing) is
    impractical or impossible in many areas where there are natural
    boundary features that already prevent or make border crossing
    extremely unlikely. In areas where the border wall has been
    constructed, migrants have cut through, climbed over and tunneled under
    the wall. This is particularly likely in remote areas. The barrier is
    not a barrier at all--it is merely an obstacle that can be overcome
    with household tools found at retail stores or rope. Recently, in late
    January, during construction of a portion of the wall, a gust of wind
    blew the wall over into the Mexico side of the border. Border wall
    construction near the Lukeville port of entry also has resulted in
    dangerous flooding and the build-up of debris and environmental damage
    during monsoon season. Federal funding (and taxpayer dollars) would be
    much better spent on technology-based solutions and additional tribal
    and Federal law enforcement personnel and equipment (such as Integrated
    Fixed Towers, which we recently have permitted to be installed on the
    reservation along the border).

        Question 3. Please provide a record of communications and meetings
    between the United States Customs and Border Protection (CBP) and the
    National Park Service (NPS) with the Tohono O'odham Nation regarding
    the border wall construction activities within Organ Pipe National
    Monument, including the activities on Monument Hill and Quitobaquito
    Springs.

        Answer. Below is a list of the communications and meetings between
    CBP/DHS, NPS and Tohono O'odham Nation leadership regarding border wall
    construction within Organ Pipe National Monument. There were additional
    communications between the Nation's staff and CBP and NPS personnel
    which are not included below. We do not consider staff communications
    or the communications listed below to be the kind of meaningful
    government-to-government consultation with consideration of tribal
    input that is required by IIRIRA Section 102(b)(1)(C), by the DHS
    tribal consultation policy, by Executive Order No. 13175, and by the
    Federal Government's trust obligation to respect tribal sovereignty and
    engage with tribes on a government-to-government basis. That is clear
    from the fact that despite these communications, CBP ignored the
    Nation's concerns and proposed mitigation measures (as well as a July
    2019 NPS survey noting that existing archeological sites will be
    impacted or destroyed by the planned border wall construction in Organ
    Pipe), bulldozing the area at Quitobaquito and blasting Monument Hill.
    The Nation has requested formal consultation on multiple occasions,
    including in its November 2019 letter to CBP (see below). Those
    requests have been declined.

      1.  October 25, 2019--Conference Call Meeting with the Nation and
                representatives from DHS, CBP, and Army COE regarding the
                border wall. Federal representatives were not authorized to
                respond to requests or answer most questions posed by the
                Chairman.

      2.  November 13, 2019--Chairman Norris letter to CBP, Chief Patrol
                Agent, Roy Villareal (cc's: DHS, CBP, NPS, FWS, USAF) as
                follow up to October 25 meeting, making requests in writing
                and requesting formal consultation.

      3.  November 25, 2019--E-mail containing short letter from Villareal
                acknowledging relationship with the Nation, notifying us
                that a response to the November 13 letter is being
                prepared.

      4.  January 10, 2020--CBP letter in response to the November 13
                letter from the Chairman, reiterating waiver of various
                laws, effectively denying most of the requests made in
                Chairman's letter except for an agreement not to drill any
                new wells within 5 miles of Quitobaquito.

      5.  November 21, 2019--Letter from NPS to provide notice of bone
                fragments that must be removed immediately due to the
                likelihood of area being disturbed as soon as December 6,
                2019 due to construction-related activity.

      6.  February 4, 2020--E-mail from CBP Agent Rafael Castillo,
                notifying the Chairman that blasting within Roosevelt
                Reservation at Monument Mountain would begin ``today.''

      7.  February 4, 2020--Chairman response to R. Castillo e-mail
                informing him that this is the first time we have been
                notified by Castillo that this would be taking place and we
                did not have notice of the blasting that occurred or the
                blading (bulldozing) that occurred at Quitobaquito earlier.
                [No response received from Castillo]

      8.  February 7, 2020--Letter from the Chairman to Department of
                Defense regarding tribal consultation required under DOD
                Appropriations Act. [No response]

      9.  February 12, 2020--Chairman Norris meeting with Tim Quinn, Mary
                Hyland, Bronia Ashford, CBP Intergovernmental Affairs re:
                concerns about destruction of cultural resources at
                Quitobaquito Springs and Monument Hill, and lack of
                consultation (Washington, DC).

    Meetings with CBP not specifically related to the border wall:

      1.  July 2, 2019--Meet and Greet with R. Castillo.

      2.  October 16, 2019--Tucson Sector Border Patrol meeting.

      3.  March 4, 2020--CBP meeting with Chief Villareal and R. Castillo.

                   Questions Submitted by Representative Soto
        Question 1. Your testimony references Section 102(c) of the Illegal
    Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the
    waiver authority granted to DHS within it.

        1a. How would the Nation's sacred sites be better protected if the
    laws waived by DHS were still applicable? For example, would your
    sacred sites be better protected if NEPA and NAGPRA still held
    authority?

        Answer. The Nation's sacred sites would be better protected if the
    40-plus environmental laws that have been waived by DHS in the Tucson
    Sector were still applicable because such laws provide processes that
    Federal agencies must follow when Federal actions impact tribal
    nations, their lands, and their cultural and natural resources, and
    these processes protect these lands and resources from such impacts.
    For example, NEPA requires the Federal Government to thoroughly
    consider and assess the potential impacts of proposed Federal actions
    on the human environment, as well as a reasonable range of alternatives
    and practicable mitigation measures that would avoid or limit potential
    harms to the environment, before deciding which action to take and what
    mitigation measures will be implemented. NAGPRA protects burial and
    archaeological sites on Federal and tribal lands and includes
    requirements for the treatment, repatriation, and disposition of
    remains, funerary and sacred objects, and objects of cultural
    patrimony. NAGRPA is intended to ensure that Federal agencies provide
    written documentation of cultural items and consult with tribes to
    repatriate cultural items. NAGPRA protects Native American burial sites
    (such as Quitobaquito Springs and Monument Hill) and prevents the
    removal of cultural items without proper review and permitting.
        The Nation's sacred sites would have received greater protection if
    DHS would have been required to comply with NEPA and NAGPRA, because
    these statutes would have required a thorough review of existing
    archeological and cultural resources and sacred sites, including tribal
    consultation and participation, an evaluation of impacts to those
    resources, and consideration of practicable mitigation measures before
    construction activities were undertaken, as well as a process for
    consultation with the Nation and repatriation of any remains found
    during construction activities. Other statutes like the National
    Historic Preservation Act would have provided additional protections
    for cultural and natural resources.

        1b. Do you believe border communities are being treated as second-
    class citizens, less protected by the laws of the United States than
    American citizens living in other parts of the Country?

        Answer. Yes. The DHS authority to waive any and all laws to
    facilitate border barrier construction contained in IIRIRA Section
    102(c) is far too broad, and allows DHS to ignore all potentially
    applicable Federal environmental, cultural and religious protection
    laws, as well as all Federal, state or other laws related to such laws.
    The over-reach of the law is further exacerbated by its severe
    limitation on the ability of those affected to challenge the waiver,
    limiting claims to those alleging a violation of the Constitution,
    which must be brought within a very short time period. As a result, DHS
    has virtually unchallengeable, dictatorial authority to run roughshod
    over the rights of the Tohono O'odham and every other border community
    in the United States. For that reason, we do believe that border
    communities are being treated as second-class citizens, and are less
    protected by the laws of the United States than American citizens
    living in other parts of the Country. No other segment of the United
    States population has been forced to surrender these legal rights and
    protections or live under these circumstances. For that reason, we
    strongly urge Congress to strike or at least seriously limit the waiver
    provision in the current law, and at a minimum, to require DHS to
    engage in a more thorough, meaningful consultation process that
    includes consideration of tribal input and mitigation.

                  Questions Submitted by Representative Garcia
        Question 1. Since the destruction of the Nation's sacred sites have
    been made public, have you received support from outside organizations
    or other tribal nations?

        Answer. The Nation has received expressions of support from
    multiple tribal leaders, as well as the National Congress of American
    Indians (NCAI). After the Subcommittee hearing on February 26, NCAI
    issued a statement condemning the recent destruction of culturally
    significant sacred sites in Arizona resulting from border wall
    construction activities.

                                     ______

        Mr. Gallego. Thank you, Chairman.
        The Chair now recognizes the gentleman from Colorado, Mr.
    Neguse, so that he may introduce our next witness.
        Mr. Neguse. Thank you, Mr. Chairman, for the opportunity to
    be able to introduce a constituent and a former professor of
    mine, Professor Sarah Krakoff, who is a professor at the
    University of Colorado School of Law, my alma mater. She is the
    Schaden Chair for Experiential Learning.
        Her expertise in American Indian law, natural resources and
    public land law, as well as environmental justice is well-
    known. She has been a prolific writer on any number of those
    topics. She is a Yale and Berkeley graduate who clerked on the
    Ninth Circuit Court of Appeals, previously led the University
    of Colorado Law School's American Indian Law Clinic, and I can
    certainly attest to her leadership and passion on these issues.
        And as a former student of hers, just very grateful for her
    to be here and offer her testimony. I am fairly certain I did
    well in her class, but I will let her clarify the record if
    that is not the case. So, thank you so much, Professor Krakoff,
    for joining us.

       STATEMENT OF SARAH KRAKOFF, MOSES LASKY PROFESSOR OF LAW,
        UNIVERSITY OF COLORADO SCHOOL OF LAW, BOULDER, COLORADO

        Ms. Krakoff. Thank you, Chairman Gallego, Ranking Member
    Gosar, members of the Subcommittee, and also Representative
    Neguse for that overly generous introduction. I hope you don't
    get me back with a few key questions like I did, perhaps, to
    you in law school.
        I am really honored to be able to testify at this important
    hearing. My name is Sarah Krakoff, and I am a law professor at
    the University of Colorado. I hope my remarks will be of use to
    the Committee.
        As Chairman Norris described, construction crews are
    blasting in Organ Pipe National Monument and have already
    destroyed Indigenous burial grounds. Many additional sites are
    at risk along the more than 1,900 miles of the U.S.-Mexico
    border. I would like to make two points about this. First, the
    Administration's approach to building the wall has
    disproportionate impacts on American Indian tribes because of
    their unique ties to Federal public lands.
        Second, the damage is avoidable but is a predictable
    consequence of the Administration's sweeping waivers of Federal
    laws which deprive the Federal agencies, the tribes, and the
    American public of the information necessary to decide whether
    the benefits of the wall outweigh its human and environmental
    costs. With regard to the first point, tribes' historic
    territories extended well beyond their current reservation
    boundaries. Tribes, therefore, have religious, cultural, and
    historic sites throughout Federal public lands. Hundreds of
    treaties, Federal laws, and executive orders recognize this by
    affirming that tribes have rights that extend beyond their
    current reservation boundaries.
        Specific laws and policies would normally protect tribal
    rights on Federal public lands, including the following: the
    American Indian Religious Freedom Act which states that it is
    the policy of the United States to protect American Indians'
    inherent right of freedom to exercise their traditional
    religions, including access to sacred sites; the National
    Historic Preservation Act which protects traditional and
    cultural properties on Federal public lands; the Archaeological
    Resources Protection Act which requires permits for excavation
    or destruction of archaeological resources on public lands; and
    the Native American Graves Protection and Repatriation Act
    which provides protections for Native American burial and
    archaeological sites on public lands.
        Two bedrock environmental statutes, the National
    Environmental Policy Act and the Endangered Species Act, would
    also normally protect tribes' and the public's interest in
    public lands. This leads to the second point. Why, despite all
    of these laws, are construction crews blasting in national
    monuments and wildlife preserves?
        The answer is that the Secretary of Homeland Security has
    waived the application of dozens of laws, including all of
    those mentioned above. The Secretary's power comes from Section
    102 of the REAL ID Act of 2005 which authorized the waiver of
    all laws that could impede the expeditious construction of
    barriers and fences. Initially, despite the breadth of the
    waiver power, the Secretary's authority was somewhat bounded by
    the fact that in the Secure Fence Act of 2006, Congress only
    authorized expenditures for roughly 700 miles of fences and
    barriers.
        The Secretary's waivers could only extend to the areas that
    Congress had specifically authorized for construction. This is
    not to understate the human, environmental, and cultural
    impacts that resulted from those initial stretches of a border
    fence. They were considerable, including flooding of Nogales
    and other areas, deaths of rare and protected wildlife, and
    destruction of wildlife migration quarters.
        But impacts from the pre-existing border fence will pale in
    comparison to the effects of the current Administration's
    indiscriminate use of waivers. For context, the Bush
    administration exercised the waiver four times for five
    projects. The Obama administration did not exercise the waiver
    at all. The Trump administration, acting without congressional
    authorization for its border wall, has already exercised the
    waiver provision 15 times. The waivers have covered between 29
    and 37 statutes, including all of those listed above, as well
    as the Antiquities Act, the Wilderness Act, and the Federal
    Lands Policy and Management Act.
        To summarize, the Administration is heedlessly destroying
    irreplaceable resources in which Native nations have unique
    interests by setting aside all of the legal protections that
    were carefully designed to protect tribes and all other
    Americans. None of this is necessary. Even if a border-long
    barrier were an important goal, it could be completed without
    suspending all of our environmental and other protective laws,
    but it could not be completed on the Administration's political
    timetable.
        The Federal Government has long recognized that its broad
    powers in Indian affairs are or should be accompanied by a
    corresponding solemn obligation to honor the rights and
    interests of the peoples who preceded us on the continent.
    Instead of furthering this trust obligation, the Administration
    is exercising its executive power in derogation of tribal
    rights. Thank you for the opportunity to testify. I look
    forward to any questions you may have.

        [The prepared statement of Ms. Krakoff follows:]
    Prepared Statement of Sarah Krakoff, Moses Lasky Professor, University
                           of Colorado Law School\1\
    ---------------------------------------------------------------------------
        \1\ Affiliation for identification purposes only; the views herein
    are my own and do not represent those of the University of Colorado.
    ---------------------------------------------------------------------------
        I would like to thank Chairman Grijalva, Chairman Gallego, and the
    members of the House Committee on Natural Resources and the
    Subcommittee for Indigenous Peoples of the United States for inviting
    me to testify at this important hearing on Destroying Sacred Sites and
    Erasing Tribal Culture: The Trump Administration's Construction of the
    Border Wall. I am a law professor at the University of Colorado and I
    write and teach in the areas of public land law, American Indian law
    and natural resources law. I hope my remarks will be of use to the
    Committee.
        As we speak, the Trump administration is pushing hard to construct
    as many miles of a border wall with Mexico as it can in advance of the
    presidential election in the fall. The costs of this headlong rush are
    significant. Construction crews are heedlessly blasting in Organ Pipe
    National Monument and have already destroyed burial grounds and
    archaeological sites. Many additional sites--including Quitobaquito
    Springs, a freshwater source that is on the Tohono O'odham Nation's
    sacred Salt Trail--are at risk. The National Park Service has
    documented at least 20 archeological sites in Organ Pipe National
    Monument that are vulnerable to the blasting and construction, and the
    Tohono O'odham Nation has confirmed that explosives would irrevocably
    harm sites sacred to the Tohono O'odham and other tribes.
        These and other harms were avoidable. The Tohono O'odham Nation and
    other affected tribes have a myriad of legal rights to prevent just
    this sort of careless destruction. Before listing the laws and policies
    that apply specifically to the border wall context, I want to provide
    some general background about the legal status and rights of Native
    American nations, or American Indian tribes. There are 574 federally
    recognized tribes in the United States \2\ that have direct government-
    to-government relationships with the Federal Government. As unique
    sovereigns under U.S. law, tribes have their own laws, their own legal
    systems, and a variety of unique rights that stem from their treaties
    and their historic status as governments that pre-dated the United
    States.\3\ Any time we think about the rights of Native people and
    Native nations, we have to think about this unique body of law. Tribes
    have the right to govern their members and their territories. Hundreds
    of treaties, Federal laws, and executive orders also recognize that
    tribes have rights and interests that extend beyond their current
    reservation boundaries. The United States was once all Indian Country,
    and tribes therefore have sites of religious, historic, archeological,
    cultural, and spiritual significance on Federal public lands that are
    no longer within their current borders. This is true of the three
    tribes that straddle the U.S.-Mexico border--the Tohono O'odham Nation,
    the Kickapoo Traditional Tribe of Texas, and the Cocopah Indian Tribe--
    as well as many other tribes whose aboriginal lands comprise the U.S.-
    Mexico border territory.
    ---------------------------------------------------------------------------
        \2\ See Indian Entities Recognized by and eligible to Receive
    Services from the United States Bureau of Indian Affairs, 85 Fed. Reg.
    5462 (Jan. 30, 2020).
        \3\ For a broad overview of tribal sovereign status and powers, see
    Cohen's Handbook of Federal Indian Law, Chs. 3-4 (2012 ed.)
    ---------------------------------------------------------------------------
        In terms of laws and policies that would normally protect tribes
    from destruction of their religious, sacred, historic, and cultural
    sites, I will describe just a few prominent ones. The American Indian
    Religious Freedom Act, enacted in 1978, provides that ``it shall be the
    policy of the United States to protect and preserve for American
    Indians their inherent right of freedom to believe, express, and
    exercise [their traditional religions.], including . . . but not
    limited to access to sites, use and possession of sacred objects, and
    the freedom to worship through ceremonial and traditional rights.'' \4\
    In 1996, to further the purposes of the Act on public lands
    specifically, President Clinton issued an executive order requiring all
    Federal lands agencies to ``accommodate access to and ceremonial use of
    Indian sacred sites'' and ``avoid adversely affecting the physical
    integrity of such sacred sites.'' \5\
    ---------------------------------------------------------------------------
        \4\ 42 U.S.C. Sec. 1996.
        \5\ Executive Order No. 13007, 61 Fed. Reg. 26771 (May 24, 1996).
    ---------------------------------------------------------------------------
        The National Historic Preservation Act \6\ provides protection to
    tribes' traditional and cultural properties on Federal public lands and
    requires tribal consultation and intergovernmental partnerships to
    protect them. The Archaeological Resources Protect Act \7\ requires
    permits for the excavation, removal, alteration, or destruction of
    archeological resources on public and tribal lands and facilitates
    intergovernmental coordination about archaeological resources. The
    Native American Graves Protection and Repatriation Act \8\ provides
    protections for Native American burial and archaeological sites on
    Federal public and tribal lands, and includes rights regarding
    treatment, repatriation, and disposition of remains, funerary and
    sacred objects, and objects of cultural patrimony.
    ---------------------------------------------------------------------------
        \6\ 16 U.S.C. Sec. 470 et seq.
        \7\ 16 U.S.C. Sec. 470aa et seq.
        \8\ 25 U.S.C. Sec. 3001 et seq.
    ---------------------------------------------------------------------------
        In addition, general environmental laws would, in normal
    circumstances, also require the Federal Government to consider and
    assess impacts of its proposed actions on the environment under the
    National Environmental Policy Act \9\ and modify its actions so as to
    avoid harm to endangered and threatened species under the Endangered
    Species Act.\10\
    ---------------------------------------------------------------------------
        \9\ National Environmental Policy Act, 16 U.S.C. Sec. Sec. 1531-
    1544.
        \10\ Endangered Species Act, 42 U.S.C. Sec. Sec. 4321-4370h.
    ---------------------------------------------------------------------------
        So why, despite all of these laws and policies, are construction
    crews barreling and blasting through protected public lands, including
    wildlife refuges and national monuments, even as Tohono O'odham Nation
    Chairman Ned Norris Jr. stands by pointing to where the sites, springs,
    and sacred objects are? The answer is that the Secretary of Homeland
    Security has waived the application of dozens of Federal laws,
    including all of those mentioned above. The Secretary's power derives
    from section 102 of the Real ID Act, passed in 2005, which authorized
    the Secretary to waive all legal requirements that could impede the
    ``expeditious construction'' of barriers and limited the scope of
    judicial review to claims alleging constitutional violations.\11\ The
    Secretary's waiver power, though substantively very broad, was
    nonetheless initially somewhat bounded by the fact that Congress only
    authorized expenditures for construction of roughly 700 miles of border
    fences and barriers in the Secure Fence Act of 2006.\12\ The
    Secretary's waiver authority, in other words, could only extend to
    areas that Congress had specifically authorized and funded for barrier
    or fence construction. This is not to understate the unnecessary human,
    environmental, and cultural impacts that resulted from those initial
    stretches of a border fence. They were considerable, including flooding
    of Nogales and other areas, deaths of rare and protected wildlife,
    destruction of wildlife migration corridors, and severance of the
    homelands of Indian nations, including the Tohono O'odham and the
    Kickapoo.\13\
    ---------------------------------------------------------------------------
        \11\ Emergency Supplemental Appropriations Act for Defense, the
    Global War on Terror, and Tsunami Relief, 2005, Pub. L. No. 109-13, 119
    Stat. 302, Sec. 102(c). The secretarial waiver was first enacted in
    1996 as part of the Illegal Immigration Reform and Immigrant
    Responsibility Act of 1996, Pub. L. 104-208, Sec. 102(c) (September 30,
    1996). The earlier version authorized the Attorney General to waive the
    Endangered Species Act and the National Environmental Policy Act. The
    Real ID Act substituted the Secretary of Homeland Security for the
    Attorney General and authorized the vastly expanded broader waiver.
        \12\ Pub. L. No. 109-367, 120 Stat. 2638.
        \13\ See Environmental Impacts on the Border Wall, David Roche, et
    al., 47 Envt'l. L. Rep. News & Analysis 10477 (2017).
    ---------------------------------------------------------------------------
        Still, those impacts might pale in comparison to the effects of the
    Trump administration's indiscriminate use of waivers to construct its
    wall. For context, the Bush administration exercised the waiver on four
    separate occasions to construct barriers and fences.\14\ The Obama
    administration did not exercise the waiver at all. President Trump's
    executive order--supporting a wall across all 1,954 miles of the
    southern border--was signed on January 25, 2017, shortly after his
    inauguration.\15\ Congress never authorized the wall's construction nor
    the funding for it. Instead the Trump administration unilaterally
    diverted defense spending to pay for the wall. Lawsuits challenging the
    diversion of funds have so far failed and the Administration is
    charging ahead without congressional approval or any apparent
    limitations or restraints of any kind. Since January 2017 the Trump
    administration has exercised the waiver provision 15 times. The waivers
    have covered lands in California, New Mexico, Texas, and Arizona, and
    typically apply to between 29 and 37 statutes, including all of those
    listed above as well as the Antiquities Act, the Wilderness Act, and
    the Federal Lands Policy & Management Act.\16\
    ---------------------------------------------------------------------------
        \14\ See Kenneth D. Madsen, Department of Homeland Security Border
    Barriers Legal Waivers, Available at: https://cpb-us-w2.wpmucdn.com/
    u.osu.edu/dist/2/14781/files/2019/10/waivers-DHS-poster_v306.pdf.
        \15\ Exec. Order No. 13767, 82 Fed. Reg. 8793 (Jan. 30, 2017).
        \16\ See id.
    ---------------------------------------------------------------------------
        In short, the Administration's fervor to get its wall in place has
    two destructive aspects. First, the Administration is blasting through
    all of the legal protections that were carefully designed to protect
    the rights and interests of tribes as well as all other Americans. And
    second, the Administration is heedlessly destroying irreplaceable
    cultural, spiritual, archeological, and ecological resources in which
    Native nations have unique interests, and that implicate all of us.
    None of this is necessary; there is no emergency rush to complete the
    wall across all 1,954 miles of the southern border. Even if a border-
    long barrier were an important and consensus-based goal, it could be
    completed without suspending all of our environmental and other
    protective laws. It just cannot be completed--consistent with the
    rights of American Indian tribes and many protective laws and
    policies--on the Administration's political timetable. It is not too
    late, however, to re-engage with the Tohono O'odham and other tribes
    and conduct serious government-to-government consultations that would
    avert further devastation to cultural, spiritual, and archeological
    sites. The extensive legal framework that recognizes the rights of
    Native nations is there; the Administration just has to choose not to
    eviscerate it.

                                     ______

    Questions Submitted for the Record to Sarah Krakoff, Professor of Law,
              University of Colorado Law School, Boulder, Colorado
                 Questions Submitted by Representative Grijalva
        Question 1. Your testimony states that this Administration's border
    wall project could very well be completed without ``suspending all of
    our environmental and other protective laws.''

        1a. In your opinion, why might the Administration have chosen this
    destructive route for the wall's construction?

        Answer. My best educated guess is that the Administration feels
    political pressure to complete at least portions of the wall before the
    2020 election.

        1b. Why waive these protective laws in the first place?

        Answer. The reason to waive Federal laws that are designed to
    protect our heritage, resources, and environment is that it is faster
    to do so and it deprives opponents of the opportunity to obtain
    information about the negative impacts of a wall that might further
    slow or stall the process.
                 Questions Submitted by Representative Gallego
        Question 1. You mention that this Administration is sidestepping
    tribal legal protections in its construction of the border wall and
    that this has implications for all Americans.

        1a. Can you elaborate on that? What legal precedent is this
    Administration setting?

        Answer. The Administration is exercising sweeping waivers of
    statutes that protect the rights of American Indian tribes specifically
    as well as the interests of all Americans in that the Administration
    has decided not to apply dozens of Federal laws to its process of
    siting and constructing the border wall. These laws include, but are
    not limited to: The National Environmental Policy Act, the Endangered
    Species Act, the National Historic Preservation Act, the Native
    American Graves Protection and Repatriation Act, among others.\1\ The
    Administration's use of the waiver, which derives from section 102 of
    the Real ID Act,\2\ sets a dangerous precedent because it is outside of
    any congressional authorization to construct the wall and therefore has
    no parameters. The Administration is acting on solely on its own
    accord, without congressional support, buy-in, or limitations, and is
    doing so in a manner that allows for little to no assessment or
    accountability of its actions that effect the environment, the Native
    Nations on the border, or even the cost-effectiveness of this massive
    construction project.
    ---------------------------------------------------------------------------
        \1\ For a chart listing all waivers and all laws to which they have
    applied, see Kenneth D. Madsen, Department of Homeland Security Border
    Barriers Legal Waivers, Available at: https://cpb-us-w2.wpmucdn.com/
    u.osu.edu/dist/2/14781/files/2019/10/waivers-DHS-poster_v306.pdf.
        \2\ Emergency Supplemental Appropriations Act for Defense, the
    Global War on Terror, and Tsunami Relief, 2005, Pub. L. No. 109-13, 119
    Stat. 302, Sec. 102(c). The secretarial waiver was first enacted in
    1996 as part of the Illegal Immigration Reform and Immigrant
    Responsibility Act of 1996, Pub. L. 104-208, Sec. 102(c) (September 30,
    1996). The earlier version authorized the Attorney General to waive the
    Endangered Species Act and the National Environmental Policy Act. The
    Real ID Act substituted the Secretary of Homeland Security for the
    Attorney General and authorized the vastly expanded broader waiver.
    ---------------------------------------------------------------------------
                 Questions Submitted by Representative Haaland
        Question 1. Your testimony references legislation that is currently
    in place to protect the cultural rights of Tribal Nations, such as the
    National Historic Preservation Act (NHPA) and the Native American
    Graves Protection and Repatriation Act (NAGPRA).

        1a. Based on these laws, would you say that tribal consultation is
    an accepted precedent in this country?

        Answer. Yes, the Federal Government's obligation to consult with
    tribes is recognized in many statutes as well as several executive
    orders. (Executive Order 13,175, to list just one example, requires
    consultation with tribes on any Federal policy that has tribal
    implications.) Tribal consultation is a well-established precedent
    based on many specific sources of law as well as the United States'
    trust obligation to American Indian tribes, which extends back to the
    formation of the republic.

        1b. How does the Administration's use of the REAL ID Act of 2005's
    waiver authority compare to this precedent?

        Answer. The Administration's sweeping and unprecedented use of the
    Real ID Act's waiver is novel and lacks public vetting as well as
    congressional support. It is an expedient exercise of executive power
    as compared to a long-standing Federal obligation.
                  Questions Submitted by Representative Garcia
        Question 1. Based on your experience in the legal and academic
    fields, what solutions are needed to prevent situations like this from
    occurring again?

        Answer. The solution is fairly simple: do not waive dozens of
    Federal laws when engaging in massive and expensive construction
    projects on Federal public lands. Follow existing laws requiring:
    meaningful tribal consultation; environmental impact assessment;
    archeological, historic, and cultural site review; and protection of
    endangered and threatened species.

                                     ______

        Mr. Gallego. Thank you. The Chair now recognizes Ms.
    Shannon Keller O'Loughlin, the Executive Director of the
    Association on American Indian Affairs.

      STATEMENT OF SHANNON KELLER O'LOUGHLIN, EXECUTIVE DIRECTOR,
      ASSOCIATION ON AMERICAN INDIAN AFFAIRS, ROCKVILLE, MARYLAND

        Ms. O'Loughlin. Good afternoon, Chairman Gallego, and the
    distinguished members of the Subcommittee. Thank you for
    allowing the Association on American Indian Affairs to testify
    today. I am Shannon Keller O'Loughlin, the Executive Director
    and the Attorney for the Association, and I am a citizen of the
    Choctaw Nation of Oklahoma.
        Since its founding in 1922, the Association on American
    Indian Affairs has been protecting sacred sites all over Indian
    Country. Sacred sites and ceremonial grounds are found
    everywhere in this Nation that we share together. Some are
    within the exterior boundaries of tribal reservations, but most
    are located on Federal, state, and privately-owned lands.
        Sacred sites include areas commemorating important tribal
    events and tribal people, much like the Jefferson Memorial, or
    burial areas like the Arlington Cemetery or a church cemetery,
    and other sites where the presence of our creators live and
    speak to us, just like your brick-and-mortar churches. In the
    first 150 years of U.S. governance, political leaders
    understood that in order to assimilate and civilize Indian
    tribes that you must separate us from our sacred places, from
    our beliefs, and outlaw our languages and our cultural and
    religious practices. And you did that. You criminalized our
    religious and traditional practices and even held back rations
    if we were caught practicing our dances.
        The United States also allowed its officials and others to
    take over our homelands, to desecrate burial and ceremonial
    places, steal our ancestors' remains and their burial
    belongings and take important cultural patrimony and sacred
    objects. Despite more than a century of this religious
    persecution, we continue our ceremonial lives at sacred sites
    all over this shared country. And the ability to do so stems
    from the perseverance of tribes and their citizens and the
    Federal Government's ongoing recognition of its legal and moral
    responsibilities to protect sacred sites and American Indian
    religious freedoms.
        Congress investigated the United States' attack on Indian
    religious freedom back in 1978 and declared then a policy to
    protect and preserve our inherent rights of freedom of belief
    and exercise of religion, including the protection and access
    to our sacred sites. Since then, the Federal Government has
    taken a multitude of actions demonstrating that its Federal
    trust responsibility includes the consideration and protection
    of sacred sites in Federal decision making. You have passed
    numerous bipartisan laws. Presidents have issued Executive
    Orders. Federal agencies have developed MOUs, reports, action
    plans. And the courts have recognized that the Federal trust
    responsibility includes consultation with Indian tribes when
    Federal actions threaten sacred sites.
        The Federal Government has unquestionably assumed the legal
    and moral responsibility to protect our sacred sites. Any
    departure from this policy flies in the face of established
    political and societal norms and violates our civil and human
    rights, not to mention our own tribal laws, customs, and
    traditions.
        Today, we stand together with the Tohono O'odham Nation and
    many other tribal nations who aren't here today who are
    fighting against this current Administration's failure to
    include our sovereign governments in any action that has the
    potential to affect our environmental, cultural, and religious
    rights and freedoms. Since Day 1 of this Administration, it has
    chosen to act unilaterally on Indian affairs and remove even
    the bare minimum procedures of our government-to-government
    relationship.
        We have not only had the ground fall out from beneath us at
    Standing Rock, at Bears Ears with BLM land management decisions
    in Alaska and elsewhere and at the Tohono O'odham sacred areas
    at Monument Hill and Organ Pipe, but now the processes under
    the National Environmental Policy Act are also being threatened
    by new proposed regulations from the CEQ, further eroding
    tribal consultation, eliminating cumulative and indirect
    impacts from environmental review and taking away our ability
    to provide less destructive options for development.
        I am sure this Subcommittee fully understands the
    devastating statistics in Indian Country, our children's
    suicide rates, our heart disease rates, the numbers of our
    women, children, and men raped, murdered and trafficked. Then
    you must understand how important, how absolutely necessary our
    cultural and religious practices are to our healing.
        We cannot recover from centuries of trauma and
    dispossession unless we can protect and maintain the places
    where we go to become whole again. The Association fully
    supports Congress in its effort to investigate and cure Indian
    sacred site destruction and religious freedom violations at the
    border wall and elsewhere. And I thank you for your time and
    attention.

        [The prepared statement of Ms. O'Loughlin follows:]
     Prepared Statement of Shannon Keller O'Loughlin, Executive Director &
            Attorney for the Association on American Indian Affairs
        On behalf of the Association on American Indian Affairs
    (``Association''), please accept this written testimony for the House
    Natural Resources Committee's Subcommittee on Indigenous Peoples of the
    United States' February 26, 2020 hearing: ``Destroying Sacred Sites and
    Erasing Tribal Culture: The Trump Administration's Construction of the
    Border Wall.''
        The Association is the oldest non-profit serving Indian Country
    protecting sovereignty, preserving culture, educating youth and
    building Tribal capacity.\1\ The Association was formed in 1922 to
    change the destructive path of Federal policy from assimilation,
    termination and allotment, to sovereignty, self-determination and self-
    sufficiency. Throughout its 98-year history, the Association has
    provided national advocacy on watershed issues that support sovereignty
    and culture, while working at a grassroots level with tribes to support
    the implementation of programs that affect real lives on the ground.
    ---------------------------------------------------------------------------
        \1\ The Association was created by an amalgamation of several non-
    profit Indian organizations that emerged in the early 1920s. The
    Eastern Association on Indian Affairs and the New Mexican Association
    on American Indian Affairs were the first of the predecessor groups to
    formally organize in 1922. The EAIA and NMAAI were made up of affluent
    non-Natives, most of whom owned land in Santa Fe and wanted to protect
    Pueblo culture. The American Indian Defense Association, headed by John
    Collier, formed to fight against the Bursum Bill and the Leavitt Bill,
    both bills seeking to end Pueblo ties to their lands, and outlaw
    cultural practices. These groups merged in the 1930s and eventually
    consolidated under the name the Association on American Indian Affairs.
    Today, the Association has an all-Native Board of Directors and
    Executive Director.
    ---------------------------------------------------------------------------
        The Association's vision: to create a world where diverse Native
    American cultures and values are lived, protected and respected, has
    demanded that the Association dedicate significant resources to
    protecting Native American cultural and religious practices connected
    to important land areas across the United States. These special land
    areas are often called ``sacred sites,'' but are used by tribes and
    their citizens in a variety of ways--and always as places that must be
    protected and secured in consultation with tribal governments.
        Since its founding, the Association has provided legal and other
    advocacy assistance to protect sacred sites. In the 1920s, it fought to
    end the takings of Pueblo lands in New Mexico, worked to advocate
    against the building of dams on tribal lands, and fought against laws
    that outlawed the practice of tribal cultures and use of lands for
    those purposes. For 20 years, the Association has provided legal
    assistance to tribes seeking to protect Medicine Wheel in Wyoming. As
    the result of these efforts, Medicine Wheel is a National Historic
    Landmark and an Historic Preservation Plan was developed to ensure its
    continued protection. The Association has also helped tribes fight the
    development of lands that would adversely impact sacred sites, such as
    the San Francisco Peaks, Bear Lodge, Bear Butte, Medicine Lake, Pyramid
    Lake, Taos Blue Lake and many others. We stand alongside with the Water
    Protectors at Standing Rock and elsewhere, as well as with efforts to
    protect all of Bears Ears National Monument, and with the Tohono
    O'odham Nation today in their advocacy to protect burial and sacred
    areas that have been or are threatened to be destroyed due to
    unilateral acts taken to build the border wall.
        Tribal sacred sites have never had the same protections as non-
    Indian cemeteries, war memorials, churches and other western
    institutions--though tribal cultural and sacred sites serve the same
    purposes as those western institutions. Even with current laws, as
    explained below, tribal sacred sites are often seen as an impediment to
    developers and government agencies because there is no holistic
    national policy that acknowledges the significance of maintaining these
    special places. The use by the current administration of the Real ID
    Act of 2005 to build the border wall to protect against terrorism
    eliminates any and all protection, right of tribal consultation and
    public involvement and leaves no right of action to challenge agency
    determinations.
        Below, we have described: the importance of sacred sites to diverse
    Native American religious practices and the Federal Government's role
    in the sacred site protection; how the Trump administration's ongoing
    construction of the border wall represents an imminent threat to sacred
    sites; and the existing Federal laws that may be used to protect them.
     the intersection of indian religion, land, and the federal government
        Place-based religious practice is common of all religions and for
    religious followers across the world. For many, pilgrimage to sites
    like the Wailing Wall, Mecca, or Mt. Sinai is a religious mandate.
    These experiences also provide stability, connection, and reassurance
    in a chaotic and uncontrollable world. These sites provide healing,
    community, empowerment and unity. Yet, the importance of sacred sites
    among Native American cultural and religious practices has not been
    treated as legitimate and worth protecting compared to other world
    cultural and religious practices. The primary reason for this is that
    the tenets and practice of Native American cultures and religions are
    inextricably tied to the land and tribes have been removed from their
    places of worship.
        Although typically hidden from plain view, sacred sites and
    ceremonial grounds abound across the United States. Some are within the
    exterior boundaries of tribal reservations, but most are located on
    Federal, state, and privately owned lands. ``Earth is a living,
    conscious being that must be treated with respect and care'' \2\--a
    failure to recognize this results in sickness, destruction, and death
    for all mankind. Accordingly, ceremonies must be performed at certain
    locations, unmolested and free from the observance of outsiders. The
    medicine gathered to bless and protect those participating in
    ceremonies must be taken from the earth in a specific manner, from
    predetermined places, and must be completely free from pollutants or
    genetic alteration. These beliefs and practices are not relics of the
    past and have continued, even when the Federal Government has outlawed
    such practices and has not yet established strong legislation to
    protect tribes in their cultural and religious freedoms.
    ---------------------------------------------------------------------------
        \2\ Rebecca Tsosie, Tribal Environmental Policy in an Era of Self-
    Determination: The Role of Ethics, Economics, and Traditional
    Ecological Knowledge, 21 Vermont L. Rev. 225, 274 (1996).
    ---------------------------------------------------------------------------
        Early United States political leaders and Federal officials
    understood the important role that sacred sites played in Indian life:
    they incorporated Indian separation from sacred sites, and therefore
    the destruction of traditional Indian religious practice, into Federal
    Indian policy. The United States' official policy to Christianize
    Indians synchronized with the passage of laws that removed Indians from
    their homelands and confined them to reservations. During that time,
    Federal officials also promulgated regulations like the Indian
    Religious Crimes Code and the Rules for Indian Courts, which
    criminalized traditional dances, feasts, medicine men, and barred many
    Indians from leaving reservations without superintendence.\3\ At best,
    the punishment for visiting a sacred site or practicing one's
    traditional religion was imprisonment. At worst, it was slaughter.
    Moreover, the United States allowed its officials and others to enter
    tribal lands to desecrate burial and ceremonial places, steal Ancestral
    remains and their burial belongings, and take important cultural
    patrimony and sacred objects.
    ---------------------------------------------------------------------------
        \3\ Lee Irwin, Freedom. Law, and Prophecy: A Brief History of
    Native American Religious Resistance, 21 Am. Indian Quarterly, 35
    (1997).
    ---------------------------------------------------------------------------
        Despite more than a century of religious persecution, Indian
    communities have continued ceremonial life at sacred sites today, and
    the ability to do so stems from the perseverance of tribes and their
    citizens, and the Federal Government's recognition of its moral and
    legal responsibility to protect sacred sites and American Indian
    religious freedoms. Beginning in 1978, Congress took notice of the
    United States' continued attack on Indian religious freedom and
    conducted an ``extensive investigation'' that detailed how ``Indian
    religious practices were often unnecessarily disrupted by state and
    Federal laws and activities.'' \4\ This led to the American Indian
    Religious Freedom Act (AIRFA), a joint resolution that declared a
    policy ``to protect and preserve for Native Americans their inherent
    right of freedom of belief, and exercise of traditional religions . . .
    including but not limited to sacred sites . . . .'' \5\
    ---------------------------------------------------------------------------
        \4\ Stephen L. Pevar, The Rights of Indians and Tribes 225 (2012).
        \5\ 42 U.S.C.S. 1996 (1978).
    ---------------------------------------------------------------------------
        Since AIRFA, the Federal Government has taken a multitude of
    actions demonstrating that its Federal trust responsibility includes
    the consideration and protection of sacred sites in Federal decision
    making. Congress has passed numerous, bipartisan laws requiring Federal
    agencies to consult with Indian tribes before they undertake any action
    that may threaten a sacred site or other Indian interests.\6\
    Presidents have issued executive orders prohibiting Federal actions
    that destroy sacred sites and mandating that Indians be given access to
    sacred sites.\7\ Likewise, Federal agencies have worked together to
    develop a memorandum of understanding, reports, and action plans
    regarding the protection of sacred sites.\8\ The Ninth Circuit has also
    recognized that the Federal trust responsibility includes consultation
    with Indian tribes when Federal actions threaten sacred sites.\9\ Thus,
    the Federal Government has unquestionably assumed the moral and legal
    responsibility to protect sacred sites and any departure from this
    policy flies in the face of established political norms, and civil and
    human rights.
    ---------------------------------------------------------------------------
        \6\ See infra Section III.
        \7\ Exec. Order 13007: Indian Sacred Sites, 61 Fed. Reg. 26771
    (1996); Exec. Order 13175: Consultation and Coordination with Tribal
    Governments, 65 Fed. Reg. 67249 (2001).
        \8\ Dep't of Defense et al., Memorandum of Understanding Regarding
    Interagency Coordination and Collaboration for the Protection of Indian
    Sacred Sites (2012); Dep't of Defense et al., Action Plan to Implement
    the MOU Regarding Interagency Coordination and Collaboration for the
    Protection of Indian Sacred Sites (2013); Dep't of Defense et al.,
    Progress Report on the Implementation of the Memorandum of
    Understanding Regarding Interagency Coordination and Collaboration for
    the Protection of Indian Sacred Sites (2014); Dep't of Defense et al.,
    Policy Statement on the Confidentiality of Information about Indian
    Sacred Sites (2015); Dep't of Defense et al., Memorandum of
    Understanding Regarding Interagency Coordination and Collaboration for
    the Protection of Indian Sacred Sites: Policy Review Report (2013).
        \9\ Pit River Tribe v. Bureau of Land Management, 469 F.3d 768, 788
    (9th Cir.2006), on remand, 2008 WL 5381779 (E.D. Cal. 2008).
    ---------------------------------------------------------------------------
                        the destruction of sacred sites
        Regrettably, although President Trump has explicitly stated that he
    ``remains committed'' to ``protecting prayer in public schools'' \10\
    and to providing Federal funding to religious groups, his
    administration has given virtually no weight to concerns that Indian
    communities have with regard to their sacred sites. For example, the
    Administration has taken action to reduce the size of the Bears Ears
    National Monument over tribal objections, as well as push through the
    Dakota Access Pipeline and other pipelines across the country.
    Similarly, there has been a disregard of tribal concerns with regard to
    immigration and border security policies. Border patrol officials have
    ``forcibly ripped apart'' a sacred deer mask when an Indian tribal
    member crossed the southern border to participate in a traditional
    religious ceremony, desecrating it and rendering it completely unusable
    for future ceremonies.\11\ Federal officials have also harassed tribal
    citizens who have treaty and statutory rights to freely cross the
    southern border to participate in religious ceremonies.\12\ And, in
    January 2020, sacred sites were destroyed as part of border wall
    construction, including the blasting of Monument Hill--sacred land for
    the Tohono O'odham Nation located in the Organ Pipe Cactus
    Monument.\13\ These actions are unlawful and morally wrong, violating
    the Federal trust responsibility to Indian tribes, and Federal policies
    reflecting that obligation that have been incorporated into numerous
    Federal statutes (see discussion immediately below).
    ---------------------------------------------------------------------------
        \10\ Whitehouse.gov, President Donald J. Trump is Safeguarding the
    Right to Religious Freedom for Students and Organizations (Jan. 16,
    2020), https://www.whitehouse.gov/briefings-statements/president-
    donald-j-trump-safeguarding-right-religious-freedom-students-
    organizations/.
        \11\ Tribal Border Alliance, Tribal Border Alliance Proposal (last
    visited Feb. 22, 2020), https://www.tribalborderalliance.org/wp-
    content/uploads/2019/03/Tribal-Border-Alliance-Proposal-on-Letterhead-
    compressed.pdf.
        \12\ Id.
        \13\ Paulina Firozi, Sacred Native American burial sites are being
    blown up for Trump's border wall, lawmaker says, Wash. Post (Feb. 9,
    2020), https://www.washingtonpost.com/immigration/2020/02/09/border-
    wall-native-american-burial-sites.
    ---------------------------------------------------------------------------
        In contrast, after Secretary Bernhardt toured Chaco Canyon in New
    Mexico, where he hiked with tribal leaders, he put in place a temporary
    development ban pending further discussions. If more officials visited
    more of these sites, and consulted more closely with tribal officials,
    we believe and hope that they would seek to protect them, rather than
    consider them inconvenient or insignificant impediments to other goals.
    existing federal laws and policies provide for the protection of indian
                   sacred sites and should not be disregarded
        Reflecting respect for tribal values and tribal culture, over the
    years the Congress and the executive branch have enacted and
    implemented a range of Federal statutes requiring the Federal
    Government to engage in consultation with Indian tribes when
    undertaking actions that may harm sacred sites and to either desist or
    mitigate those actions. Those laws, described below, should not now be
    abandoned; rather, they should be expanded upon.
    National Historic Preservation Act
        The National Historic Preservation Act (NHPA) was signed into law
    in 1966. The purpose of the Act is to ``foster conditions under which
    our modern society and our historic property can exist in productive
    harmony and fulfill the social, economic, and other requirements of
    present and future generations.'' \14\ Accordingly, the Federal
    Government must ``contribute to the preservation of both federally
    owned and nonfederally owned historic property'' \15\ and must consider
    historic properties in agency decision making. Demonstrating Congress's
    commitment to the protection of sacred objects and sacred sites, NHPA's
    1992 amendments provide that sites with religious and cultural
    significance to Indian tribes could be eligible for listing on the
    National Register of Historic Places. Further, under Section 106 of the
    Act, Federal agencies must consult with Indian tribes when taking into
    account the effects that a Federal action may have on an historic
    property that is listed or eligible for listing on the National
    Register.\16\
    ---------------------------------------------------------------------------
        \14\ 54 U.S.C. Sec. 300101(1).
        \15\ 54 U.S.C. Sec. 300101(4).
        \16\ 54 U.S.C. Sec. 300308.
    ---------------------------------------------------------------------------
    National Environmental Policy Act
        In 1970, Congress enacted the National Environmental Policy Act
    (NEPA) to ``encourage productive and enjoyable harmony between man and
    his environment [and to] promote efforts which will prevent or
    eliminate damage to the environment.'' \17\ NEPA, and its current
    regulations, ensure that Federal agencies incorporate the appropriate
    level of environmental review when considering proposed actions. NEPA
    is often the only statute that allows tribes to meaningfully
    participate in the Federal decision-making process because it acts as a
    mechanism for sacred site protection and helps tribes enforce their
    off-reservation treaty rights like hunting, fishing, and gathering--all
    activities essential to traditional Indian religious practice.
    ---------------------------------------------------------------------------
        \17\ 42 U.S.C. Sec. 4321.
    ---------------------------------------------------------------------------
    Archaeological Resources Protection Act
        Enacted in 1979, the Archaeological Resources Protection Act (ARPA)
    protects archaeological resources on Federal and Indian lands.\18\
    Indian lands are lands held in trust for tribes by the Federal
    Government or lands that are subject to restrictions against
    alienation.\19\ Archaeological resources include material remains of
    past human life or activities that are of archaeological interest and
    are at least 100 years old.\20\ To comply with ARPA, parties must
    receive a Federal permit prior to excavation, and Federal agencies must
    provide notice to tribes prior to the issuance of a permit that may
    adversely affect a sacred site.
    ---------------------------------------------------------------------------
        \18\ 16 U.S.C. Sec. Sec. 470aa-470mm.
        \19\ Id. at Sec. 470(bb)(4).
        \20\ Id. Sec. 470bb(1).
    ---------------------------------------------------------------------------
    Native American Graves Protection and Repatriation Act
        The Native American Graves Protection and Repatriation Act (NAGPRA)
    was enacted on November 16, 1990 (and will be 30 years old this year)
    and protects cultural items like Indian Ancestral remains and their
    burial belongings, sacred objects, and items of cultural patrimony.\21\
    The purpose of the law is twofold. First, it is meant to ensure that
    agencies and institutions receiving Federal funds inventory and provide
    written accounts of cultural items. In addition, Federal agencies and
    institutions must consult with tribes to repatriate cultural items.
    Second, the law is meant to provide significant protection for Native
    American burial sites. The Act prohibits the removal of cultural items
    from Tribal or Federal land without proper permitting.\22\
    Additionally, it prohibits selling, purchasing, and transportation for
    sale of cultural items obtained in violation of NAGPRA.\23\
    ---------------------------------------------------------------------------
        \21\ 25 U.S.C. Sec. Sec. 3001-3013, 18 U.S.C. Sec. 1170.
        \22\ 25 U.S.C. Sec. 3002(c); see also id. Sec. 3002(a).
        \23\ 18 U.S.C. Sec. 1170.
    ---------------------------------------------------------------------------
    Religious Freedom Restoration Act
        In 1993, Congress passed the Religious Freedom Restoration Act
    (RFRA), which provides that the Federal Government cannot substantially
    burden religious exercise without a compelling interest.\24\ It is
    distinguishable from the aforementioned statutes because it grants a
    private right of action against the Federal Government for religious
    freedom violations and places the burden of proof on the government to
    demonstrate that it has a compelling interest in doing so. While RFRA
    does not explicitly mention Indians or sacred sites, the protection of
    Indian religious practice is at its core. Congress enacted RFRA in
    response to the 1990 Supreme Court case, Employment Division v. Smith,
    where two Native American Church practitioners filed a First Amendment
    free exercise claim against Oregon's unemployment office after they
    were denied unemployment benefits based on their sacramental use of
    peyote.\25\ The Court held that neutral laws of general applicability
    that do not expressly target religious practice were constitutional.
    The decision shocked lower courts and legal scholars, and provoked
    significant protest from religious rights groups and civil liberties
    organizations.
    ---------------------------------------------------------------------------
        \24\ 42 U.S.C. Sec. 2000bb-1.
        \25\ Employment Div. v. Smith, 494 U.S. 872 (1990).
    ---------------------------------------------------------------------------
    EO 13007: Indian Sacred Sites
        Issued in 1996, Executive Order 13007: Indian Sacred Sites mandates
    that Federal land management agencies must ``accommodate access to and
    ceremonial use of Indian sacred sites by Indian religious
    practitioners'' and must avoid adversely affecting the physical
    integrity of such sacred sites.'' \26\ Under the order, sacred sites
    are identified by tribes and Federal agencies must actively provide
    notice to tribes of any actions that may adversely affect a sacred site
    and consult with them to resolve the issue. It also established a
    system for holding Federal agencies accountable for their actions.\27\
    It requires the head of each executive branch agency that has the
    responsibility for managing lands to report to the President.\28\ These
    reports must address changes necessary to accommodate access to and
    ceremonial use of Indian sacred sites, those changes necessary to avoid
    adversely affecting the physical integrity of Indian sacred sites, and
    procedures implemented or proposed to facilitate consultation with
    Indian tribes.
    ---------------------------------------------------------------------------
        \26\ Exec. Order 13007: Indian Sacred Sites, 61 Fed. Reg. 26771
    Sec. 1(a) (1996); Exec. Order 13175: Consultation and Coordination with
    Tribal Governments, 65 Fed. Reg. 67249 (2001).
        \27\ Id. at Sec. 2(a).
        \28\ Id. at Sec. 2(b).
    ---------------------------------------------------------------------------
    EO 13175: Consultation and Coordination with Tribal Governments
        Issued in 2000, Executive Order 13175, Consultation and
    Coordination with Tribal Governments, articulated the administration's
    establishment of ``regular and meaningful consultation and
    collaboration with tribal officials in the development of Federal
    policies that have tribal implications . . . .'' \29\ Policies with
    tribal implications are defined as ``regulations, legislative comments
    or proposed legislation, or other policy statements or actions that
    have substantial direct effects on one or more Indian tribes . . . .''
    \30\ Under the order, Federal agencies must respect tribal sovereignty
    and grant tribes ``the maximum administrative discretion possible.''
    \31\
    ---------------------------------------------------------------------------
        \29\ Exec. Order 13175: Consultation and Coordination with Tribal
    Governments, 65 Fed. Reg. 67249 (2001).
        \30\ Id. at Sec. 1(a).
        \31\ Id. at Sec. 3(a), (b).
    ---------------------------------------------------------------------------
                                   conclusion
        Felix S. Cohen, known as the father of Federal Indian law, served
    the Association as its General Counsel in the 1940-50s. He is well
    known for the following quote from 1953:

            ``It is a pity that so many Americans today think of the Indian
            as a romantic or comic figure in American history without
            contemporary significance. In fact, the Indian plays much the
            same role in our society that the Jews played in Germany. Like
            the miner's canary, the Indian marks the shift from fresh air
            to poison gas in our political atmosphere; and our treatment of
            Indians, even more than our treatment of other minorities,
            reflects the rise and fall in our democratic faith.''

        The Association fully supports Congress in its effort to correct
    the direction of our democratic faith and investigate Indian sacred
    site destruction and religious freedom violations with respect to the
    construction of the border wall. Our expertise in successfully
    advocating for sacred site protection has taught us that this is an
    ongoing issue with the current Administration and that Federal agencies
    and officers must fully realize their moral and legal responsibility to
    protect sacred sites and consult with sovereign tribal governments.
    Thank you for the opportunity to submit this testimony.

                                     ______

     Questions Submitted for the Record to Ms. Shannon Keller O'Loughlin,
           Executive Director, Association on American Indian Affairs
        Thank you for your invitation to testify and provide further
    comment on the important and serious topic of the protection of Native
    American sacred places, religious practices and cultural heritage.
    Tribal Nations and their citizens cannot recover from centuries of
    trauma and dispossession caused by assimilative Federal policy, unless
    we can protect and maintain the places where we can go to become whole
    again.
        In addition, with these responses, we respectfully request that the
    Subcommittee do their best to stop the Council on Environmental Quality
    from proceeding with their proposed update to the regulations
    implementing the National Environmental Policy Act, Docket CEQ-2019-
    0003-0001 that will extinguish many Tribal Nation rights of
    consultation to protect cultural heritage sites. I have attached the
    Association's comments to public comment on the rulemaking.
        Below are the responses from the Association on American Indian
    Affairs to questions from Representatives Grijalva, Haaland and Garcia.

                 Questions Submitted by Representative Grijalva

        Question 1. Based on your organization's experience, can you speak
    to any examples where tribal consultation was utilized successfully?

        Answer. The Association on American Indian Affairs does not often
    hear about the successes in consultation--we hear from tribes that need
    assistance or who have not been properly consulted. But there are
    successes, and they are more often than not reliant on the quality of
    the relationship between the Tribe and the Federal agency staff
    involved in the project.
        Often, successful consultation with tribes is dependent on the
    Federal agency staff involved in the consultation because there are no
    consistent tribal consultation policies throughout the Federal system.
    Where Federal agency staff understand how to work respectfully with
    tribes and the importance of protecting Native American cultural
    heritage, then there can be successful consultation. Unfortunately,
    tribal consultation is dependent on an agency's consultation policy
    developed out of Executive Order 13175--and Federal agencies differ on
    the robustness of their consultation policies, and they are horribly
    inconsistent between agencies when compared.
        Congress can support the success of tribal consultation with a
    progressive piece of legislation that sets forward a process that all
    executive agencies must follow consistently for tribal consultation
    when a Federal action has the potential to affect a Tribal Nation.
    Consultation must be redefined to be substantive and implement the U.N.
    Declaration on the Rights of Indigenous Peoples. In addition, Congress
    could put ``teeth'' in current legislation--such as the National
    Environmental Policy Act, the National Historic Preservation Act, and
    the Native American Graves Protection and Repatriation Act--that
    establishes a priority and supremacy for the protection of tribal
    cultural heritage, religious practices and environmental protection
    over destructive development that harms those interests.

        Question 2. Would you say that tribal consultation can be of
    benefit to agencies that are striving to create programs and projects
    that positively affect all Americans?

        Answer. Absolutely. Tribal Nations are the first protectors of the
    environment and often base decision making on long-term benefits,
    versus short-term benefits. By consulting tribes, Federal agencies will
    avail themselves of unique benefits stemming from Native American
    belief, experience, and expertise. For example, many Tribal Nations
    value their obligations to the next seven generations, a belief that
    supports sustainability not only for Tribes and Nations, but for
    everyone. In partnership with tribes, the Federal Government can better
    serve all Americans and develop long-term sustainability into projects.
        Land development in the United States seeks quick short-term
    economic rewards only, which often causes substantial harm to future
    sustainability, environmental health and cultural resource protection.
    Tribal consultation that is substantive and not merely a box to check,
    can support sustainable planning. The United States must amend its
    current policies for land development and create legislation that
    mandates sustainability and environmental protection--not just when it
    is convenient but consistently and all-of-the-time. Land and resource
    development must be sustainable and prioritize long-term environmental
    protection over short-term economic reward. No waivers.
                 Questions Submitted by Representative Haaland
        Question 1. Your testimony mentions Secretary Bernhardt's recent
    visit to Chaco Canyon and the temporary development ban that resulted
    from his discussions with tribal officials. Based on your experience,
    what solutions are needed to better protect tribal sacred sites?

        Answer. When Federal officials engage with tribes on the ground and
    experience firsthand the importance of sacred sites to the Tribal
    Nations that revere them, all parties benefit. Direct, in-person
    involvement by U.S. government decision makers exposes them to
    information that then can be used to adopt policies that better serve
    the public, and provides sustainability prioritizing long-term
    environmental protection over short-term economic reward. The case of
    Secretary Bernhardt's visit to Chaco Canyon is a clear example of the
    value to U.S. officials of connecting in person with Native Americans
    about Native American sacred sites and culture--all Federal officials
    that make decisions affecting Tribal Nations should be mandated to
    visit the communities their decisions affect.

        Of course, in-person visits are one tool to safeguard tribal sacred
    sites today and for successive generations. Additional tools must
    include:

         A clear and consistent U.S. policy statement that
                prioritizes long-term planning and protection over short-
                term economic rewards, and prioritizes American Indian
                religious freedom, and the Federal Government's
                responsibility to protect sacred sites, water, and the
                environment;

         The adoption of new Federal legislation that clearly and
                consistently requires substantive tribal consultation,
                which implements the U.N. Declaration on the Rights of
                Indigenous Peoples and free, prior and informed consent
                principles, and prioritizes long-term planning and
                protection for cultural heritage, sacred sites, and a clean
                environment.

         Legislation that clearly states that tribal consultation
                requirements cannot be waived, as the government-to-
                government relationship and the U.S. trust responsibility
                requires tribal consultation in all circumstances. No
                waivers for tribal consultation.

                  Questions Submitted by Representative Garcia

        Question 1. Can you elaborate on the importance of place-based
    spiritual practices to Tribal Nations and their citizens?

        Answer. Traditional religious and ceremonial practices of Native
    Americans are often inseparably bound to specific areas of land. Much
    of that sacred land today is outside of tribal jurisdiction and is
    located on Federal, state and private lands--and is protected in a
    checkerboard fashion. Regarding the border wall, migrations between
    places have always occurred and the area has a rich history that will
    be forever destroyed with the wall. Such is not sustainable and makes
    all efforts for consistent protection of sacred places untenable.
    Moreover, the failure of a consistent environmental policy regarding
    any land development means that sacred places and cultural heritage are
    not protected, and threatens the long-term sustainability for all of
    us.
        Late Native American theologian Vine Deloria, Jr. contrasts western
    religion's temporal framework with Native American religious beliefs'
    spatial framework: ``The vast majority of Indian [T]ribal religions [.
    . .] have a sacred center at a particular place, be it a river, a
    mountain, a plateau, valley, or another natural feature. This center
    enables the people to look out along the four dimensions and locate
    their lands, to relate all historical events within the confines of
    this particular land, and to accept responsibility for it. Regardless
    of what subsequently happens to the people, the sacred lands remain as
    permanent fixtures in their cultural or religious understanding.''

        Question 2. In what ways has the Federal trust responsibility
    evolved to include the consideration and protection of tribal sacred
    sites?

        Answer. In exercising its authority over American Indian and Alaska
    Native affairs, there is a ``distinctive obligation of trust incumbent
    upon the [Federal] Government that involves moral obligation of the
    highest responsibility.'' Seminole Nation v. United States, 316 U.S.
    286, 296-97 (1942). The basis for this special legal relationship
    between Indian people and the Federal Government is found directly in
    the Constitution and memorialized in treaties. This trust relationship
    applies to all Federal agencies and to all actions that may potentially
    affect Tribal Nations.
        This responsibility has also been affirmed by statute to apply to
    the protection of religion and sacred sites. In 1978, Congress enacted
    the American Indian Religious Freedom Act (AIRFA), which includes the
    declaration that it is ``the policy of the United States to protect and
    preserve for American Indians their inherent right of freedom to
    believe, express, and exercise the traditional religions of the
    American Indian, Ekimo, Aleut, and Native Hawaiians, including but not
    limited to access to sites, use and possession of sacred objects, and
    the freedom to worship though ceremonials and traditional rites.''
    Unfortunately, AIRFA was found by the courts to be unenforceable and
    not much more than a policy statement, leaving tribes and their
    citizens with no way to protect sacred sites.
        The legislation that applies to the protection of sacred sites,
    which includes but is not limited to the National Environmental Policy
    Act, the National Historic Preservation Act, the Archaeological
    Resources Protection Act, and the Native American Graves Protection and
    Repatriation Act, only provides for a procedural right for tribal
    consultation. This legislation does not prioritize the long-term
    sustainability of resources and the environment, and does not
    prioritize leaving sacred sites and archaeological areas alone.
    Instead, they allow tribes to be heard and their positions to be
    considered, but the Federal agency can act however it would like if it
    follows those procedures, as long as it is not arbitrary and
    capricious.
        If Congress established strong policy and legislation that
    prioritized long-term environmental protection over short-term economic
    reward, implemented the U.N. Declaration on the Rights of Indigenous
    Peoples and required the free, prior and informed consent of tribes
    where sacred, archaeological or other environmental areas were
    affected, then the environmental and preservation laws would actually
    mean something. And please, no waivers for tribal consultation.

                                     *****

                                   ATTACHMENT

                 ASSOCIATION ON AMERICAN INDIAN AFFAIRS
                                            Rockville, Maryland

                                                         March 10, 2020

    Edward A. Boling
    Associate Director for the National Environmental Policy Act
    Council on Environmental Quality
    730 Jackson Place NW
    Washington, DC 20503

    Re: Demand for Tribal Consultation on proposed update to the
            regulations implementing the National Environmental Policy Act,
            Docket CEQ-2019-0003-0001

        Dear Associate Director Boling:

        The Association on American Indian Affairs (``Association'')
    submits the following comments on the Council on Environmental
    Quality's (CEQ) proposed changes [Docket No. CEQ-2019-0003-0001] to the
    implementing regulations for the National Environmental Policy Act
    (NEPA) at 40 CFR 1500-1505 and 1507-1508.

        The Association is the oldest non-profit serving Indian Country
    protecting sovereignty, preserving culture, educating youth and
    building Tribal capacity. The Association was formed in 1922 to change
    the destructive path of federal policy from assimilation, termination
    and allotment, to sovereignty, self-determination and self-sufficiency.
    Throughout its 98-year history, the Association has provided national
    advocacy on watershed issues that support sovereignty and culture,
    while working at a grassroots level with Tribes to support the
    implementation of programs that affect real lives on the ground.

        The Association's vision: to create a world where diverse Native
    American cultures and values are lived, protected and respected, has
    demanded that the Association dedicate significant resources to
    protecting Native American cultural, religious, and sacred places.
    These special land areas are often called ``sacred sites,'' but are
    used by Tribes and their citizens in a variety of ways--and always as
    places that must be protected and secured in consultation with Tribal
    governments.

        What the CEQ has called for in its proposed regulatory changes are
    the result of a misguided reform effort whose ultimate outcome would be
    heavily biased in favor of development interests and would both
    undermine protections for our irreplaceable cultural and environmental
    resources and fail to produce the efficiencies it seeks. The
    Association calls upon CEQ to withdraw these proposed regulations and
    enter into required consultations with Tribal Nations.

        The proposed rule changes were developed without Tribal
    consultation. CEQ's Instead, CEQ simply issued a letter on January 13,
    2020 to Tribal leaders inviting them to participate in the two public
    meetings. Federal law, including Executive Order 13175, requires
    agencies to engage in government-to-government consultation with Tribes
    when considering regulatory changes that would affect Tribal Nations.
    Given the magnitude of the proposed changes, and the importance of NEPA
    in protecting Tribal cultural resources, this rulemaking clearly
    requires formal tribal consultation.

        For this reason, the Association requests that the agency cease its
    rulemaking process and undertake appropriate Tribal consultations on
    the proposed changes to the NEPA regulations immediately. Tribal
    consultations should occur in various regions throughout Indian
    Country, such that Tribal concerns are broadly reflected in this
    rulemaking process. These consultations must occur prior to any
    proposed rulemaking.

        There is one benefit in the proposed rules, which is that Tribes
    are specifically invited to comment when the effects are off-
    reservation (as opposed to only when there are on-reservation effects).
    40 C.F.R. Sec. 1503.1(a)(2)(ii), Sec. 1506.6(b)(3)(ii). However, there
    are many downfalls of the proposed rules, including limiting NEPA
    review, eliminating the review of indirect and cumulative effects, and
    creating barriers to judicial review. Further, these regulations were
    proposed with very limited and fast-tracked Tribal consultation, even
    though the proposed rule states that this is not a regulatory policy
    with Tribal implications.

        Nevertheless, it is the Association's opinion that the overall
    effort to revise the NEPA review process as proposed is badly flawed
    and does not protect Tribal interests or the interests of health,
    safety and welfare of all peoples for the additional following reasons:
    1. Disregarding Environmental Justice
        NEPA reviews are one of the primary ways the Federal Government
    considers the frequently disproportionate impacts that large-scale,
    highly disruptive projects and facilities have on people of color,
    Indigenous peoples, and poor and immigrant populations. Central to
    consideration of disproportionate burdens is the consideration of
    cumulative impacts, which result from past, present, and reasonably
    foreseeable future actions in a project area. The current proposal
    explicitly eliminates the requirement to consider cumulative impacts,
    Sec. 1506.7. Further, the CEQ's Environmental Justice Guidance under
    NEPA, which outlines environmental justice principles and
    considerations in the NEPA process, would be rescinded.

        Sec. 1508.1(g) would redefine ``effect'' to mean impacts of an
    action that are ``reasonably foreseeable'' and that ``may include''
    impacts that occur later or farther from (in distance) the area of
    proposed effect. This would also gut the existing law and regulation's
    coverage of indirect and cumulative effects of projects, especially in
    regard to historic properties where context, setting, and viewscapes
    are important considerations. In another example, CEQ wants to link
    ``reasonableness'' of a program alternative to include consideration of
    ``technical feasibility,'' ``consistency,'' ``practicality,'' and
    ``affordability.'' Under these terms, it would be easy for both
    agencies and proponents to arbitrarily limit NEPA reviews and the
    identification of potential alternatives. The most troubling aspect of
    these changes is that agencies and project proponents would be able to
    make these determinations without an opportunity for public comment.
    2. Giving the Fox the Keys to the Henhouse
        Companies would be allowed to write their own environmental
    reviews, and federal contractors would no longer need to disclose
    conflicts of interests or financial stakes in the projects they are
    reviewing. Sec. 1506.5(c). This would remove the government-to-
    government requirement between Tribes and federal agencies, relegating
    that important mandate and fiduciary responsibility to a non-
    governmental contractor in violation of federal laws.

        In addition, the reason NEPA has long required agencies to maintain
    responsibility of reviews is because they are charged with making
    decisions in the public interest. Industry makes decisions based on
    profit and would have no incentive to consider any alternatives to a
    proposal, or to take a hard look at its environmental consequences.
    This would relegate NEPA to a bias one-sided report--giving the
    proponent all power at the expense of our Tribal Nations' and the
    public's health, safety and welfare.
    3. Loopholes to Avoid Environmental Review and Public Input
        The proposed rules provide several avenues for agencies to avoid
    NEPA review. Agencies could attempt to avoid NEPA altogether by
    claiming that they are providing ``minimal'' funding for or have
    ``minimal'' involvement in a private development proposal.
    Sec. Sec. 1501.1(a)(1) & 1508.1(q). If that doesn't work, an agency
    could claim that complying with NEPA would be inconsistent with
    Congress's intent under another statute, or that an entirely different
    process designed to satisfy other goals could serve as a substitute for
    environmental analysis and public review under NEPA. Those decisions
    could be made on a case-by-case basis (i.e., behind closed doors with
    the polluter). Sec. 1501.1(a)(4)-(5) & (b).
    4. Prioritizing Speed of Approvals Over Review and Tribal Consultation
        Where NEPA would apply, agencies would be encouraged to do the bare
    minimum level of analysis. Environmental Assessments and Environmental
    Impact Statements would be subject to short and strict timelines, and
    environmental documents would be limited in page numbers. Detailed
    environmental impact statements would only be prepared as a last
    resort, and a proposed action's impacts to irreplaceable archaeological
    resources, parks, wilderness, endangered species, or other sensitive
    resources would no longer be a factor in consideration of whether
    detailed analysis is necessary. Sec. Sec. 1501.3, 1501.4, 1501.5,
    1501.10.

        The shortened timeline for environmental review and limited
    document length could pose substantial barriers to Tribal consultation.
    Agencies, on fast tracks for approval, can speed through Tribal
    consultation, exacerbating existing shortcomings with federal agency
    implementation of Tribal consultation requirements. The strict page
    limits and timelines may also pose barriers to effective consultation
    under the National Historic Preservation Act.
    5. Pushing Polluter Priorities Over Community Concerns
        In the rare instance that a proposal would need to go through full
    environmental review, it could be prejudiced from the get-go, with the
    so-called ``purpose and need'' defined by the private company seeking
    approval. Sec. 1502.13. If industry designs the purpose and need, it
    sets the stage for NEPA review on narrow terms: the only alternatives
    that must be considered would need to fit that purpose and need, and
    they must be ``economically and technologically feasible'' for the
    company. Sec. Sec. 1502.14, 1508.1(z). In other words, all roads would
    lead to industry development, and the government could absolutely
    ignore alternative courses of action proposed by Tribes and members of
    the public who depend on healthy forests and wildlife habitat, clean
    air and water, and other resources, for cultural and religious
    practices, as well as health and safety.
    6. Ignoring Severe Environmental and Health Impacts
        Indirect effects are completely deleted from the proposed
    regulations. Analysis of impacts associated with a proposal to mine,
    drill, or log would be limited to those deemed to have ``a reasonably
    close causal relationship to the proposed action,'' with no requirement
    to analyze indirect or cumulative effects that are considered to be
    ``remote in time, geographically remote, or the product of a lengthy
    causal chain'' (i.e., climate change). Sec. 1508.1(g).
    7. Institutionalizing Climate Denial into Federal Decision-making
        It is long-settled that agencies are required to consider not only
    the impacts a federal decision may have on the climate crisis, but also
    the impacts of climate change on federal projects. The primary way
    federal agencies have considered climate impacts is through analysis of
    indirect and cumulative impacts, which this proposal explicitly
    eliminates. Sec. 1506.7. By eliminating indirect and cumulative impact
    analyses, this proposal allows the government to approve
    environmentally destructive projects, such as oil pipelines, with no
    consideration of their contribution to climate change. It also puts
    communities at risk by allowing agencies to fund projects that are less
    resilient to severe drought, stronger hurricanes, and more severe
    weather.
    8. Attempts to Silence the Public and Shut the Courthouse Doors
        The government could claim that public comments are not
    ``specific'' enough or do not include reference to data sources and
    scientific methodologies and therefore are deemed ``forfeited.''
    Sec. Sec. 1500.3(b), 1503.3(a), 1503.4. Comments that are not submitted
    within the agency's strictly imposed time limits would not be
    considered. Sec. Sec. 1500.3(b), 1501.10, 1503.3(b), 1503.4. Then, if
    aggrieved communities or individuals want to challenge an inadequate
    NEPA analysis in court, they may be precluded from doing so if they did
    not meet the ``exhaustion'' requirements and could potentially even be
    required to provide a bond. Sec. 1500.3(b)-(c). These requirements
    place undue burdens upon Tribal Nations and others potentially impacted
    by proposed projects, and can shield agencies from litigation in the
    event of improper procedure. Once in court, the agency may claim that
    the court must presume that it followed the law, based on a
    certification in its record of decision. Sec. 1502.18.
    9. Heavily Weighted in Favor of the Developer
        CEQ published the proposed regulatory changes on January 10, 2020,
    in accordance with the directives established under Executive Order
    13807 (issued August 15, 2017), which set forth a path for
    ``Establishing Discipline and Accountability in the Environmental
    Review and Permitting Process for Infrastructure.'' Among the steps
    already taken under EO 13807 were the creation of a ``One Federal
    Decision'' standard on project reviews through a single, unified NEPA
    document and the formation of an interagency working group to evaluate
    the environmental review processes to ``identify impediments to
    efficient and effective environmental review and authorizations for
    infrastructure projects.'' The proposed regulatory changes before us
    today constitute the end result of this process, which was tainted from
    the beginning by the administration's desire to greatly limit both the
    scope and duration of the review requirements, thus reducing the amount
    of avoidance, minimization, mitigation, and remediation work needed to
    ensure sound environmental and cultural resources stewardship. For
    example, the requirement of an economic analysis [Sec. 1501.2(b)(2)] to
    justify NOT carrying out types of NEPA work will likely incentivize the
    constraining of evaluation and mitigation activities.
    10. Create New and Problematic Policies Reducing NEPA Compliance
        Under the proposed changes, agencies would be authorized to
    arbitrarily decide that non-federal actions that meet an undefined
    ``minimal'' level of federal involvement would be exempt from NEPA
    requirements under a new Threshold Applicability Analysis
    [Sec. 1501.1]. Agencies would also be allowed to designate some federal
    projects as ``non-major'' [Sec. 1507.3] based on an arbitrary
    percentage level; there would be a significant expansion in the number
    of Categorical Exclusions [Sec. 1506.7]. Further changes such as the
    replacement of ``exorbitant'' with ``unreasonable'' would act to limit
    the universe of potential alternatives, reduce study or permit areas,
    and allow federal agencies and permit applicants to ignore resources
    that most certainly will be adversely affected. The proposed changes
    will increase ambiguity in the process and reduce its ability to
    identify environmental and cultural resource baselines, evaluate
    significance and effects, and work to avoid and minimize adverse
    effects.
    11. Limit Public Involvement
        The language contained in Sec. 1500.3(b)(3) would prevent comments
    NOT submitted during the formal EA and EIS comment periods from being
    considered later in the process. It is understandable and reasonable
    for agencies and project proponents to want comments to be submitted in
    a timely manner to avoid having to go back and rework designs and the
    review process itself simply to accommodate stakeholders who were late
    in submitting comments. Nevertheless, one of the fundamental goals of
    NEPA is to incorporate, to the maximum extent practicable, the
    viewpoints of the public on development projects that use public funds
    and/or lands. This is to ensure that the mistakes of pre-NEPA project
    and facilities construction are not repeated. Further, some flexibility
    in the ability of interested parties to provide comments is necessary
    when new issues and information arise over the course of a NEPA
    process. This is a common occurrence. Language must be added to the
    proposed rule that would require project managers to take into
    account--even after the expiration of the formal comment period--new
    and substantive issues raised by the public.
    12. Rejects the Scale and Complexity of Projects
        The changes put forward by CEQ make no distinction between minor
    proposals with no or minimal effects and large projects with major
    impacts on the landscape. CEQ seeks more clarity and efficiency from
    the NEPA process, and small-scale actions with minimal environmental
    risk would clearly benefit from such a framework. Yet the draft changes
    before us would produce exactly the opposite effect--larger, more
    complex, and better-funded proposals would be incentivized to reduce
    their NEPA compliance responsibilities, while small project proponents
    would be placed under the same regulatory burdens as their bigger
    colleagues.
    13. Cultural Resources Would Suffer Adverse Impacts
        It is difficult to underestimate how Tribal cultural heritage would
    be adversely affected by these proposed changes. While NEPA and the
    National Historic Preservation Act are distinct laws, with their own
    implementing regulations, there is a synergy between the two statutes
    that is both mutually beneficial and reinforcing. The current NEPA
    regulations integrate NEPA and National Historic Preservation Act
    (NHPA) compliance and enforcement, ensuring that NEPA documents
    disclose information about cultural resources and that these resources
    are considered during a project planning process so that efforts can be
    made to avoid and minimize impacts to historic properties. NHPA Section
    106 activities benefit because NEPA documents reach a broad audience,
    expanding the audience for disclosing information to the public about
    the presence of resources and potential impacts. Section 106 reviews,
    if done early and properly, will inform the development and evaluation
    of NEPA program alternatives and the creation of strategies to avoid
    and minimize impacts. The proposed changes, by reducing the amount of
    NEPA work to be done, would inappropriately reduce the scope of
    analysis for federal actions and eliminate or reduce requirements for
    consulting with federally recognized Tribes and coordinating with other
    stakeholders.
        CEQ's proposed changes are contrary to the long-standing practice
    of ensuring that our Tribal Nations' and generally the Nation's
    cultural heritage is protected for future generations. Under the CEQ
    proposal, cultural resources would no longer receive the consideration
    and protection they do today. Once cultural resources and historic
    properties are destroyed or degraded, they are lost forever; they are
    NOT renewable resources. If we do less to identify and protect cultural
    heritage areas, it will inevitably lead to a significant loss of our
    cultural heritage and environmental integrity.
        If you have questions, please do not hesitate to contact me at
    shannon.aaia@indian-affairs.org or 240-314-7155.

                Yakoke,

                               Shannon Keller O'Loughlin, Esq.,
                                                     Executive Director

                                     ______

        Mr. Gallego. Thank you. The Chair now recognizes Mr. Steve
    Hodapp, a retired independent contractor and environmental
    specialist.

     STATEMENT OF STEVE HODAPP, RETIRED INDEPENDENT CONTRACTOR AND
             ENVIRONMENTAL SPECIALIST, LEXINGTON, VIRGINIA

        Mr. Hodapp. Good afternoon, Chairman Gallego, Ranking
    Member Gosar, and other members of the Committee. I appreciate
    the chance to testify before you this afternoon. For the last
    10 years until my retirement in March, I have been working as a
    contractor, supporting CBP environmental compliance efforts
    primarily in the state of Arizona. The major point of my
    testimony today is that, in the execution of its border
    security mission, CBP fully complies with all the applicable
    laws as provided in the REAL ID Act and, in fact, often exceeds
    the legal requirements.
        In 2016, the House Natural Resources Committee requested
    the Interior Department to provide a list of all peer-reviewed
    studies which documented impacts on natural resources resulting
    from border construction. After 6 months, the Interior
    Department could not produce a single study. It is important to
    understand that the waiver authorized in the REAL ID Act only
    applies to barrier construction. It doesn't apply to any other
    construction activities by Border Patrol, towers or border
    patrol stations, roads, etc.
        It is also important that when the Secretary applies the
    REAL ID Act, although it would waive these laws in their
    entirety, CBP, in fact, complies with the substantive portions
    of these laws. For example, if the National Historic
    Preservation Act were to be waived, CBP would still conduct a
    cultural resource survey. CBP would still treat any resources
    that are discovered in accordance with the procedures that are
    in place for protecting cultural resources.
        CBP has been working cooperatively with the Tohono O'odham
    Nation for a number of years to develop and implement border
    security on the Nation's lands. For the last 10 years
    specifically, we have been working on deployment of a
    surveillance tower system within the Nation's lands. We have
    coordinated with the tribal historic preservation officer on
    all the roads, all the tower sites. And where we found cultural
    resources, we have gone to alternate tower sites.
        We have used ground-penetrating radar to go beyond the
    visual surveys which are normally the standard protocol for
    locating cultural resources. I'd like to talk a little bit and
    turn back the clock a little with regard to Monument Hill. In
    2002, tragically, Kris Eggle, park ranger at the Organ Pipe
    Cactus National Monument, was killed at the border by illegal
    drug cartels.
        Within a few months, the Park Service shut down the entire
    border and 60 percent of the Park because it was unsafe for
    visitors. Within a year, the Park Service began an
    environmental assessment. The Park Service built the first road
    all along the entire border of the monument and the adjacent
    fence.
        When they did their environmental assessment in 2003, they
    found no significant cultural resources along this road,
    including at Monument Hill and Quitobaquito. The Tribe made no
    comments about the cultural significance of these sites. In
    2007, CBP issued an environmental assessment to upgrade the
    fence at Lukeville. This would widen the footprint from 30 to
    60 feet and, in this case, again, CBP issued an environmental
    assessment. We did cultural resource surveys. Even though this
    wall section was waived, we found no cultural resources. The
    Tribe made no comments about the cultural significance of
    Monument Hill, even though a border wall was constructed on
    Monument Hill.
        And in 2012, again, CBP did an environmental assessment
    about maintenance of the road on Monument Hill and on the fence
    on Monument Hill, and again the Tribe made no comment and CBP
    found no significant risks to cultural resources from that
    action. So, only now in May 2019, when CBP has again solicited
    comments from the Tribe and others, has the issue of these
    sacred sites been raised to CBP, not in any of these previous
    actions.
        With regard to Quitobaquito, again, CBP has worked
    cooperatively with the Park Service and with the Fish and
    Wildlife Service to have appropriate stand-off distances for
    water withdrawal and protection of that important resource
    during the border construction activities. Thank you.

        [The prepared statement of Mr. Hodapp follows:]
         Prepared Statement of Steve Hodapp, Environmental Specialist/
                        Independent Contractor, Retired
        Good afternoon Chairman Gallego, Ranking Member Cook and
    distinguished members of the Subcommittee. It is an honor to have the
    opportunity to testify before you today regarding the environmental
    consequences of border security construction in Arizona.
        My name is Steve Hodapp, for the last 10 years, until my retirement
    last March, I was working as a Contractor supporting the environmental
    compliance efforts of the U.S. Customs and Border Protection (CBP),
    primarily in the state of Arizona. The major point of my testimony is
    that in the execution of its border security mission, CBP fully
    complies with all applicable laws as provided in the REAL ID Act, and
    in fact, often exceeds the legal requirements. Adverse impacts of CBP
    construction activities have often been grossly mis-characterized. In
    2016, the House Natural Resources Committee requested that the
    Department of the Interior provide a list of peer-reviewed publications
    which document the impacts of CBP actions on natural resources. The
    Department of the Interior could not identify a single peer-reviewed
    study in 6 months' time. In fact, a majority of the citations provided
    by the Department were not even from peer-reviewed publications. CBP
    has completed a number of important conservation measures in the state
    of Arizona in recent years (see attached).
        First, it is important to understand that the environmental waiver
    authorized on a bi-partisan basis by Congress in the REAL ID Act only
    applies to construction of border barriers, and such roads as are
    required for border barrier construction. All other CBP construction
    activities: for roads, towers, bridges, operations, border patrol
    stations, lighting, etc. must be completed in full compliance with all
    applicable environmental laws. Congress only provided the statutory
    waiver to a small subset of border security construction activities. In
    fact, effective border security requires a combination of deterrence
    factors, including: a barrier, technology to determine when the barrier
    has been breached, enforcement personnel, adequate access for
    enforcement personnel to reach the border and prompt adjudication
    procedures. If Congress desires to enhance border security further,
    then these same statutory authorities should be applied to other border
    construction activities.
        Second, while the REAL ID Act authorizes a complete waiver of
    environmental or other statutes, as determined in the sole discretion
    of the Secretary of the Department of Homeland Security, in practice,
    CBP complies with the substantive provisions of the various
    environmental laws. For example, CBP still undertakes cultural resource
    surveys in areas where there will be ground disturbance. And, if
    cultural resources are discovered during the surveys, those resources
    are treated in accord with accepted practice. In other words, any
    significant cultural resources identified will either be collected for
    future study and placed with an appropriate entity for curation, or if
    collection is impracticable, the resources will be documented in place
    in accord with accepted practice.
        While CBP does not formally consult with the State Historic
    Preservation Officer (or in this case the Tribal Historic Preservation
    Officer) if the National Historic Preservation Act is waived, CBP still
    solicits their input; as well as input from the public, and other
    interested parties regarding border barrier projects. Any input
    received is carefully reviewed by CBP and used to ensure that potential
    impacts on natural and cultural resources are minimized to the extent
    possible. On May 6, 2019, CBP broadly issued a letter seeking comments
    on the proposed bollard wall in Pima and Cochise Counties. The letter
    detailed how to provide comments which were accepted from interested
    parties on this project until July 5, 2019 (see CBP National
    Environmental Policy Act webpage).
        CBP is concerned about potential impacts of its activities on
    cultural resources of concern to the Tohono O'odham Nation, and has
    taken, and continues to take all possible steps to minimize the impact
    of its activities on tribal cultural resources consistent with its
    border security responsibilities. In fact, according to the Tribal
    Historic Preservation Officer, CBP has conducted more extensive
    archeological surveys on the Tohono O'odham Nation lands than anyone
    else (including the Tribe).
        CBP and the Tohono O'odham Nation have been working cooperatively
    on border security for many years. For the last 10 years, CBP and the
    Tribe have been working on the deployment of a surveillance tower
    system across the Nation's lands. Several years ago, CBP's contractor
    was in the field conducting test borings to evaluate the engineering
    feasibility of certain tower sites. During this activity, the
    contractor inadvertently knocked over two saguaro cacti, a species
    which is considered sacred to the Tribe. CBP took immediate action to
    shut down the contract and to provide remedial training to the
    contractor, and enhance the monitoring protocol to ensure future
    incidents were avoided. CBP erected and stabilized the cacti which were
    damaged, and provided additional saguaro cacti at a 2:1 replacement
    ratio. This mitigation approach was agreed to by the Tribe.
        CBP fully coordinated the environmental assessment for this tower
    project with the Tribe, and all tower sites and roads to be upgraded
    were approved by the Tribal Historic Preservation Officer, Peter
    Steere. CBP even went beyond the traditional visual archeological
    surveys and performed ground penetrating radar surveys of sites where
    visual surveys were inconclusive, including an additional site as
    requested by the Tribal Historic Preservation Officer.
        Despite the completion of surveys before the final site selection
    decision was made, additional cultural resources were discovered when
    construction crews went to the field last fall. CBP and the Tribal
    Historic Preservation Officer agreed on techniques to protect cultural
    resources within the road prism, and CBP changed one of its tower sites
    to a location where cultural resources were not present.
        In addition to this survey for the tower project, CBP has completed
    surveys of approximately 220 miles of roads on the Tohono O'odham lands
    which are needed for border patrol purposes. The purpose of these
    surveys was to enable CBP to conduct future maintenance of these roads,
    which would benefit both tribal access and border security. During
    these surveys, several dozen cultural resource sites, a number of which
    are significant sites, were located. Although these surveys were
    completed nearly 6 years ago in 2014, these sites remain unprotected
    today and are being impacted by ongoing road traffic.

        With specific regard to the cultural significance of Monument Hill,
    I point out the following:

      1.  In 2003, the National Park Service issued an environmental
                assessment for construction of a border barrier and
                adjacent 30-foot-wide road along 35 miles of monument
                boundary, including Monument Hill. The National Park
                Service completed an archeological survey of the project
                site and determined no significant cultural resources would
                be impacted. The Tohono O'odham Tribe provided no comments
                on the environmental assessment regarding potential impacts
                from either road construction or border barrier
                construction on either Monument Hill or Quitobaquito
                Springs.

      2.  In 2007, CBP issued an environmental assessment for 5.2 miles of
                mesh pedestrian fence centered on Lukeville, and located
                about 3 feet north of the National Park Service-constructed
                vehicle fence (within the Roosevelt Reservation). This
                project included 0.65 miles of primary pedestrian fence on
                Monument Hill. CBP conducted an archeological survey of the
                project site and the environmental assessment found no
                potential impacts on cultural resources. The Tribe made no
                comment about cultural significance of Monument Hill.

      3.  In 2009, CBP issued an environmental assessment for construction
                of 10 surveillance and communication towers within and
                adjacent to the Monument, including one tower within 2
                miles of Monument Hill. The Tribe made no comment on this
                environmental assessment regarding the cultural
                significance of Monument Hill.

      4.  In 2012, CBP issued an environmental assessment addressing
                maintenance and repair of all existing CBP tactical
                infrastructure (roads, fences, bridges, lighting,
                vegetation control, drainage structures, surveillance
                towers, etc.) in Arizona. The proposed action included
                maintenance of the border fence constructed by the National
                Park Service and the adjacent road on Monument Hill. The
                Tribe provided no comment on this environmental assessment
                regarding the cultural significance of Monument Hill.

        Only the Tohono O'odham Nation can provide an explanation regarding
    why there has been no comment on the cultural significance of Monument
    Hill prior to the most recent solicitation for comment in May 2019. It
    is likely that construction of a border barrier will have some impact
    on the culturally significant Monument Hill and that no mitigation is
    likely to achieve both complete protection of this site and border
    security objectives. Procedures adopted by CBP to mitigate impacts on
    cultural resources as described above will reduce the overall impact of
    this project on this significant site.
        The Quitobaquito Spring which exists in the monument today is a
    cattle pond constructed by a rancher in the 1860s. The precise
    configuration of the spring prior to the 1860s is unknown. According to
    the U.S. Geological Survey (Hydrogeology of the Quitobaquito Springs
    and La Abra Plain area, Organ Pipe Cactus National Monument, Arizona,
    and Sonora, Mexico Water-Resources Investigations Report 95-4295), the
    source for this spring is the highly fractured rock northeast of the
    springs (within the monument). These USGS studies suggest that any
    pumping south of the re-charge area have not been demonstrated to have
    an impact on the spring.
        Since Quitobaquito Springs is one of few natural water sources in
    the monument vicinity, it has long been an important source of water.
    Quitobaquito Springs also provides habitat for two listed species, the
    Quitobaquito pupfish and the Sonoita mud turtle. Although this spring
    is only about a quarter mile north of the US/MX border which is
    traveled by CBP agents during patrol there is no evidence that either
    of these species have been impacted by CBP activity. Pursuant to a 2009
    biological opinion (AESO 22410-2009-F-0368), CBP does not patrol within
    a 40-acre buffer area around this spring. For these reasons, no
    biological impacts to Quitobaquito Springs are anticipated from this
    project. Any isolated cultural resources near Quitobaquito Springs will
    be addressed in a similar manner to any isolated resources located on
    Monument Hill.

                                     *****

                                   ATTACHMENT

      significant conservation actions undertaken by cbp in arizona since
                                      2010
        *CBP has conducted the most extensive archeological surveys of the
    Tohono O'odham Nation lands ever undertaken. This includes surveys
    along more than 250 miles of roads and more than a dozen tower sites.
    The information collected in these surveys has been used by CBP to
    reduce or eliminate potential impacts of tactical infrastructure on
    cultural resources. For example, CBP recently abandoned a preferred
    tower site due to the presence of significant cultural resources at
    that site.

        During these cultural resource surveys, CBP discovered several
    dozen historic and pre-historic archeological sites along, and within,
    the road corridors. A number of the sites were determined to be
    culturally significant. Since the discovery of these sites in 2014, the
    Tribe has taken no action to conserve these sites, and the sites
    continue to degrade due to ongoing vehicular traffic.

        *CBP provided $2.9M to the National Park Service to restore Sonoran
    Desert habitat impacted by past illegal vehicle border crossings.

        *CBP has provided more than $2M for jaguar conservation. This
    funding has been used for surveying and monitoring jaguars as well as a
    broad public education campaign.

        *CBP has provided $2.8M for Sonoran pronghorn conservation and
    recovery. These funds have been used to establish a captive breeding
    population, establish a second pronghorn population on Kofa National
    Wildlife Refuge, inventory and monitoring of pronghorn, studies of
    potential impacts of human activities on the species and other high
    priority conservation actions. CBP funding has been a key factor in the
    ongoing recovery of this species.

        *CBP has provided $1.3M for conservation and recovery of lesser
    long nosed bat. Funding provided by CBP has been instrumental in the
    discovery of additional lesser long nosed bat colonies which has
    supported efforts by USFWS to de-list this species.

        *CBP provided funding to install a well to secure the habitat for
    the endangered San Bernardino spring snail.

        *CBP provided funding to establish new wetlands at San Bernardino
    National Wildlife Refuge.

        *CBP provided more than $500K to secure the habitat of listed fish
    at San Bernardino National Wildlife Refuge. Actions implemented with
    these funds include: construction of a fish barrier to prevent upstream
    migration of exotic species and erosion control measures along Black
    Draw and Hay Hollow to reduce sedimentation impacts on listed fish in
    ephemeral streams.

        *Due to the CBP border security efforts in the vicinity of Organ
    Pipe Cactus National Monument, the National Park Service was able to
    open 70 percent of the monument which had been closed to public use for
    more than 11 years (2003 to 2014).

                                     ______

        Questions Submitted for the Record to Mr. Steve Hodapp, Retired
               Independent Contractor & Environmental Specialist
                  Questions Submitted by Representative Bishop
        Question 1. Lands within the Roosevelt Reservation are not within
    Organ Pipe Cactus National Monument, is that correct?

        Answer. Border barrier construction by the Department of Homeland
    Security on Federal land in Pima County, Arizona is confined to the
    Roosevelt Reservation. The Roosevelt Reservation is a 60-foot-wide
    strip of public land which was set aside in a Presidential Proclamation
    by Theodore Roosevelt in 1907 for border security purposes. When Organ
    Pipe Cactus National Monument was established by Presidential
    Proclamation in 1937, it was established subject to prior public land
    withdrawals. In fact, the 1937 monument establishment proclamation
    specifically recognizes the 1907 Roosevelt Reservation withdrawal.
    Therefore, the Roosevelt Reservation is entirely outside the boundary
    of Organ Pipe Cactus National Monument, and construction of the border
    barrier within the Roosevelt Reservation will have no direct effect on
    the monument.

        Question 2. Your testimony suggests that impacts from CBP projects
    have been exaggerated or mischaracterized. Can you provide any example
    of this?

        Answer. The media and Federal agencies have continually
    mischaracterized and exaggerated the actual impacts of CBP projects and
    activities. Examples of these mischaracterizations include:

        (a) U.S. Fish and Wildlife Service determined that construction of
    fixed towers under the Tucson West and Ajo 1 tower projects would
    result in take of 4.8 lesser long-nosed bats per tower per year due to
    bats colliding with fixed towers (see Biological Opinions 22410-2008-F-
    0373 dated Sept 4, 2008 and 22410-F-2009-0089-R2 dated December 10,
    2009 respectively). U.S. Customs and Border Patrol was therefore
    required to monitor this take for a period of 5 years. Over the next 5
    years, CBP spent more than $600,000 on contractors searching for bat
    carcasses at these towers. No bat carcasses were ever located. The
    impact predicted by the U.S. Fish and Wildlife Service was based on
    studies of bat mortality at a wind farm located in West Virginia.
    Further, the U.S. Fish and Wildlife Service never determined that any
    cell phone tower, radio tower, TV tower, electrical tower, and other
    fixed tower constructed within the range of the lesser long-nosed bat
    in southern Arizona would result in take of the species.

        (b) U.S. Fish and Wildlife Service determined that CBP maintenance
    of 100 miles of existing, unpaved roads on Federal lands would result
    in incidental take of Sonoran pronghorn due to collisions with
    maintenance vehicles and harassment (see Biological Opinion 02EAAZ00-
    2012-F-0170 dated November 6, 2012). There are approximately 1,300
    miles of existing, unpaved roads within the range of the pronghorn.
    These roads have been maintained and/or repaired by National Park
    Service, U.S. Fish and Wildlife Service, Department of Defense and
    Bureau of Land Management since 1968 when the pronghorn was listed. In
    no consultation with any of these other agencies has U.S. Fish and
    Wildlife Service ever determined that road maintenance or repair would
    result in incidental take of pronghorn. In fact, there has never been a
    collision with a Sonoran pronghorn reported in Arizona on an unpaved
    road.

        (c) In a letter dated December 17, 2009 from the AZ Fish and
    Wildlife Service Field Supervisor to the Tucson Sector Chief Patrol
    Agent, U.S. Fish and Wildlife Service requested CBP immediately
    initiate Section 7 consultation regarding road dragging of the Geronimo
    Trail ``in order to prevent the significant, and perhaps irreversible,
    environmental damage we believe is imminent.'' The imminent damage
    cited by U.S. Fish and Wildlife Service was sedimentation of listed
    fish habitat within Black Draw which U.S. Fish and Wildlife Service
    determined was occurring from ongoing dragging of Geronimo Trail. At
    the time of this letter, U.S. Fish and Wildlife Service had no data to
    support these dire predictions and relied on studies of non-relevant
    species in unrelated ecosystems. Despite this lack of data, U.S. Fish
    and Wildlife Service advocated for changes to CBP patrol activities.
    The University of Arizona later completed studies funded by CBP which
    documented that the source of sediment into the Black Draw was private
    ranching lands located north of the Geronimo Trail, and that sediment
    from CBP road dragging resulted in no measurable contribution to
    sedimentation within the stream.
        Question 3. What do you mean when you testify that CBP complies
    with the ``substantive provisions of the environmental laws''?

        Answer. In Section 102 of the REAL ID Act, Congress authorized the
    complete waiver of any law as determined in the sole discretion of the
    Secretary of the Department of Homeland Security when required to
    enable border barrier construction on a timely basis. Since the first
    application of the waiver authority, the Department of Homeland
    Security has been dedicated to ``responsible environmental
    stewardship'' in the construction of border barriers where ever the
    waiver authority was exercised.

        For example, CBP conducts archeological surveys which meet the
    standards set forth in the National Historic Preservation Act prior to
    surface disturbance. Similarly, CBP conducts surveys for species listed
    under the Endangered Species Act. CBP seeks input from regulatory
    agencies in the development of best management practices. CBP consults
    with affected Federal land managers and tribal leaders to seek their
    input on methods to minimize environmental impacts from border barrier
    construction. CBP completes documentation which quantifies the actual
    impact of its construction activities and makes that information
    available to interested parties. These are all examples which
    illustrate how CBP has complied with the substantive provisions of
    various environmental laws which have been waived.

        Question 4. What is the purpose of the environmental monitors used
    by CBP?

        Answer. The purpose of the environmental monitors is to ensure the
    best management practices adopted by CBP are fully implemented (see
    response to question #6). These monitors are responsible to report any
    violations of best management practices to the government so that real-
    time corrective action can be taken.

        Question 5. What measures are in place to ensure water flow at
    Quitobaquito Springs are not impacted by this project?

        Answer. Quitobaquito Springs has been substantially altered in
    recent history. Water from the spring is currently contained in an
    impoundment constructed to serve cattle in the 1800s. Water is
    delivered to this impoundment from the spring via a concrete-lined
    channel. The National Park Service has constructed a small
    (approximately 20-car capacity) parking lot at the impoundment and
    interpretive trail around it.

        U.S. Geological Survey has completed studies in the past which
    determined that the source of water for the spring is located within
    the monument north of the current spring outfall. The National Park
    Service and U.S. Fish and Wildlife requested that no ground water be
    withdrawn within 5 miles of the spring. CBP has agreed not to withdraw
    any water within 7 miles of the spring. In addition, the U.S.
    Geological Survey is performing real-time water flow monitoring of the
    spring flow when these CBP wells are active. If there is any diminution
    of flow during construction, then construction can be halted until
    mitigation measures can be developed.

        Question 6. What Best Management Practices are used by CBP to
    minimize the impacts from border wall construction?

        Answer. CBP has completed a number of border barrier projects over
    the years. During these numerous projects, a standard set of Best
    Management Practices (BMPs) has been developed. The following list of
    BMPs were developed for another border barrier project in Arizona. The
    actual BMPs to be applied for projects adjacent to Organ Pipe Cactus
    National Monument will reflect a minor modification of these BMPs to
    reflect local conditions.
    General Best Management Practices

        The following best management practices (BMPs) should be
    implemented to avoid or minimize impacts associated with the Project
    during construction. These represent project objectives for
    implementation to the extent possible and will be incorporated into
    construction and monitoring contracts.

        1. The perimeter of all areas to be disturbed during construction
    or maintenance activities in Sections D-5B and D-6 will be clearly
    demarcated using flagging or temporary construction fence, and no
    disturbance outside that perimeter will be authorized.

        2. CBP will develop (in coordination with U.S. Fish & Wildlife
    Service [USFWS]) a training plan regarding Trust Resources for
    construction personnel. At a minimum, the program will include the
    occurrence of the listed and sensitive species in the area, their
    general ecology, sensitivity of the species to human activities,
    protection afforded these species, and project features designed to
    reduce the impacts to these species and promote continued successful
    occupation of the project area environments by the species. Included in
    this program will be color photos of the listed species, which will be
    shown to the employees. Following the education program, the photos
    will be posted in the office of the contractor and resident engineer,
    where they will remain through the duration of the project. The
    selected construction contractor will be responsible for ensuring that
    employees are aware of the listed species.

        3. Project Reports. For construction and maintenance projects
    (e.g., fences, towers, stations, facilities) within 3 months of project
    completion, a Project Report will be developed that details the BMPs
    that were implemented, identifies how well the BMPs worked, discusses
    ways that BMPs could be improved for either protection of species and
    habitats or implementation efficiency, and reports on any federally
    listed species observed at or near the project site. If site
    restoration was included as part of the project, the implementation of
    that restoration and any follow-up monitoring will be included. Annual
    reports could be required for some longer-term projects. The project
    and any annual reports will be made available to the USFWS.

        4. Biological Surveys for each Project. CBP will either assume
    presence of a federally listed species based on suitable habitat or
    known presence, and implement appropriate measures or will, as part of
    project design and planning, perform reconnaissance-level
    preconstruction surveys to validate presence of suitable habitat.

        5. Relocation of individuals of federally listed plants found in
    the project area is generally not a suitable activity. Relocation of
    aquatic species such as the water umbel and ladies'-tresses is not
    appropriate. Relocation of small cacti has not been very successful,
    and is not recommended. A salvage plan will be developed and approved
    by the government prior to the action. The CBP biological monitor will
    identify a location for storing any salvaged cactus and/or agaves. For
    particular actions, the USFWS will advise CBP regarding the relocation
    of plants.

        6. Individual federally listed animals found in the project area
    will be relocated by a qualified biologist to a nearby safe location in
    accordance with accepted species-handling protocols to the extent
    practicable.

        7. All construction projects in habitats of federally listed
    species will have a qualified designated biological monitor on site
    during the work. The biological monitor will document implementation of
    construction-related BMPs designed for the project to reduce the
    potential for adverse effects on the species or their habitats. Weekly
    reports from the biological monitor should be used for developing the
    Project Report.

        8. Where, based on species location maps or results of surveys,
    individuals of a federally listed species could be present on or near
    the project site, a designated biological monitor will be present
    during construction activities to protect individuals of the species
    from harm. Duties of the biological monitor will include ensuring that
    activities stay within designated project areas, evaluating the
    response of individuals that come near the project site, and
    implementing the appropriate BMP. The designated biological monitor
    will notify the construction manager of any activities that might harm
    or harass an individual of a federally listed species. Upon such
    notification, the construction manager may temporarily suspend all
    activities in question and notify the Contracting Officer, the
    Administrative Contracting Officer, and the Contracting Officer's
    Representative of the suspense so that the key U.S. Army Corps of
    Engineers (USACE) personnel can be notified and apprised of the
    situation and the potential situation can be resolved.

        9. Where a construction project could be located within 1 mile of
    occupied species habitats but the individuals of the species are not
    likely to move into the project area, a biological monitor is not
    needed. However, the construction monitor will be aware of the species-
    specific BMPs and ensure that BMPs designed to minimize habitat impacts
    are implemented and maintained as planned. This category includes the
    lesser long nosed bat and all aquatic species.

        10. Particular importance is given to proper design and location of
    roads so that the potential for road bed erosion into federally listed
    species habitat will be avoided or minimized.

        11. Particular importance is given to proper design and location of
    roads so that the potential for entrapment of surface flows within the
    roadbed due to grading will be avoided or minimized. Depth of any pits
    created will be minimized so animals do not become trapped.

        12. Particular importance is given to proper design and location of
    roads so that the widening of existing or created roadbed beyond the
    design parameters due to improper maintenance and use will be avoided
    or minimized.

        13. Particular importance is given to proper design and location of
    roads so that excessive use of unimproved roads for construction
    purposes that results in their deterioration that affects the
    surrounding federally listed species habitat areas will be minimized.
    Road construction and use for construction will be monitored and
    documented in the Project Report.

        14. Particular importance is given to proper design and location of
    roads so that the fewest roads needed for construction will be
    developed and that these are maintained to proper standards. Roads no
    longer needed by the government should be closed and restored to
    natural surface and topography using appropriate techniques. The Global
    Positioning System (GPS) coordinates of roads that are thus closed
    should be recorded and integrated into the USBP Geographic Information
    System (GIS) database. A record of acreage or miles of roads taken out
    of use, restored, and revegetated will be maintained.

        15. The width of all roads that are created or maintained by CBP
    for construction purposes will be measured and recorded using GPS
    coordinates and integrated into the USBP GIS database. Maintenance
    actions should not increase the width of the road bed or the amount of
    disturbed area beyond the roadbed.

        16. Construction equipment will be cleaned using BMPs prior to
    entering and departing the project corridor to minimize the spread and
    establishment of non-native invasive plant species.

        17. Surface water from untreated sources, including water used for
    irrigation purposes, will not be used for construction or maintenance
    projects located within 1 mile of aquatic habitat for federally listed
    aquatic species. Groundwater or surface water from a treated municipal
    source will be used when close to such habitats. This is to prevent the
    transfer of invasive animals or disease pathogens between habitats if
    water on the construction site was to reach the federally listed
    species habitats.

        18. Materials such as gravel or topsoil will be obtained from
    existing developed or previously used sources, not from undisturbed
    areas adjacent to the project area.

        19. If new access is needed or existing access requires
    improvements to be usable for the Project, related road construction
    and maintenance BMPs will be incorporated into the access design and
    implementation.

        20. When available, areas already disturbed by past activities or
    those that will be used later in the construction period will be used
    for staging, parking, and equipment storage, where practicable.

        21. Within the designated disturbance area, grading or topsoil
    removal will be limited to areas where this activity is needed to
    provide the ground conditions needed for construction or maintenance
    activities. Minimizing disturbance to soils will enhance the ability to
    restore the disturbed area after the project is complete.

        22. Removal of trees and brush in habitats of federally listed
    species will be limited to the smallest amount needed to meet the
    objectives of the project. This type of clearing is likely to be a
    permanent impact on habitat.

        23. Water for construction use will be from wells or irrigation
    water sources at the discretion of the landowner (depending on water
    rights). If local ground water pumping creates an adverse effect on
    aquatic-, marsh-, or riparian-dwelling federally listed species,
    treated water from outside the immediate area will be utilized.

        24. Surface water from aquatic or marsh habitats will not be used
    for construction purposes if that site supports aquatic federally
    listed species or if it contains non-native invasive species or disease
    vectors and there is any opportunity to contaminate a federally listed
    species habitat through use of the water at the project site.

        25. Water tankers that convey untreated surface water will not
    discard unused water where it has the potential to enter any aquatic or
    marsh habitat.

        26. Water storage on the project area should be in closed on-ground
    containers located on upland areas, not in washes.

        27. Pumps, hoses, tanks, and other water storage devices will be
    cleaned and disinfected with a 10 percent bleach solution at an
    appropriate facility before use at another site. If untreated surface
    water was used (this water is not to enter any surface water area). If
    a new water source is used that is not from a treated or ground water
    source, the equipment will require additional cleaning. This is
    important to kill any residual disease organisms or early life stages
    of invasive species that could affect local populations of federally
    listed species.

        28. CBP will develop and implement storm water management plans for
    every project.

        29. All construction will follow DHS management directive 5100 for
    waste management.

        30. A CBP-approved spill protection plan will be developed and
    implemented at construction and maintenance sites to ensure that any
    toxic substances are properly handled and that escape into the
    environment is prevented. Agency standard protocols will be used. Drip
    pans underneath equipment, containment zones used when refueling
    vehicles or equipment, and other measures are to be included.

        31. Non-hazardous waste materials and other discarded materials,
    such as construction waste, will be contained until removed from the
    construction site. This will assist in keeping the project area and
    surroundings free of litter and reduce the amount of disturbed area
    needed for waste storage.

        32. To eliminate attracting predators of protected animals, all
    food-related trash items such as wrappers, cans, bottles, and food
    scraps will be disposed of in closed containers and removed daily from
    the project site.

        33. Waste water is water used for project purposes that is
    contaminated with construction materials, or was used for cleaning
    equipment and thus carries oils or other toxic materials or other
    contaminants in accordance with state regulations. Waste water will be
    stored in closed containers on site until removed for disposal.
    Concrete wash water will not be dumped on the ground, but is to be
    collected and moved off-site for disposal. This wash water is toxic to
    aquatic life.

        34. If an individual of a federally listed species is found in the
    designated project area, work will cease in the area of the species
    until either a qualified biological monitor can safely remove the
    individual, or it moves away on its own, to the extent practicable,
    construction schedule permitting.

        35. Construction speed limits will not exceed 35 miles per hour
    (mph) on major unpaved roads (graded with ditches on both sides) and 25
    mph on all other unpaved roads. Night-time travel speeds will not
    exceed 25 mph, and might be less based on visibility and other safety
    considerations. Construction at night will be minimized.

        36. No pets owned or under the care of the construction contractor
    or any and all construction workers will be permitted inside the
    project's construction boundaries, adjacent native habitats, or other
    associated work areas. This BMP does not apply to any animals under
    service to the USBP (such as canine and horse patrols).

        37. If construction or maintenance activities continue at night,
    all lights will be shielded to direct light only onto the area required
    for worker safety and productivity. The minimum wattage needed will be
    used and the number of lights will be minimized.

        38. Light poles and other pole-like structures will be designed to
    discourage roosting by birds, particularly ravens or raptors that may
    use the poles for hunting perches.

        39. Noise levels for day or night construction and maintenance will
    be minimized. All generators will be in baffle boxes (a sound-resistant
    box that is placed over or around a generator), have an attached
    muffler, or use other noise-abatement methods in accordance with
    industry standards.

        40. Transmission of disease vectors and invasive non-native aquatic
    species can occur if vehicles cross infected or infested streams or
    other waters and water or mud remains on the vehicle. If these vehicles
    subsequently cross or enter uninfected or non-infested waters, the
    disease or invasive species could be introduced to the new area. To
    prevent this, crossing of streams or marsh areas with flowing or
    standing water will be avoided by construction vehicles and equipment,
    and, if not avoidable, the construction vehicle/equipment will be
    sprayed with a 10 percent bleach solution.

        41. Materials used for on-site erosion control in uninfested native
    habitats will be free of non-native plant seeds and other plant parts
    to limit potential for infestation. Since natural materials cannot be
    certified as completely weed-free, if such materials are used, there
    will be follow-up monitoring to document establishment of non-native
    plants, and appropriate control measures will be implemented for a
    period of time to be determined in the site restoration plan.

        42. Fill material brought in from outside the project area will be
    identified as to source location and will be weed-free to the extent
    practicable.

        43. For purpose of construction, infrastructure sites will only be
    accessed using designated roads. Parking will be in designated areas.
    This will limit the development of multiple trails to such sites and
    reduce the effects to federally listed habitats in the vicinity.

        44. Appropriate techniques to restore the original grade, replace
    soils, and restore proper drainage will be implemented for areas to be
    restored (e.g., temporary staging areas).

        45. A site restoration plan for federally listed species and
    habitat will be developed during project planning and provide an
    achievement goal to be met by the restoration activity. If seeding with
    native plants is identified as appropriate, seeding will take place at
    the proper season and with seeds from nearby stocks, to the extent
    practicable. It is understood that some sites cannot be restored, and
    the project planning documents should acknowledge this.

        46. During follow-up monitoring and during maintenance activities,
    invasive plants that appear on the site will be removed. Mechanical
    removal will be done in ways that eliminate the entire plant and remove
    all plant parts to a disposal area. All chemical applications on
    refuges must be used in coordination with the Integrated Pest
    Management Coordinator to ensure accurate reporting. Herbicides can be
    used according to label directions. The monitoring period will be
    defined in the site restoration plan. Training to identify non-native
    invasives will be provided for CBP contractor personnel, as necessary.

        47. Maintenance activities in cactus and agave habitat will not
    increase the existing disturbed areas. Use of existing roads and trails
    will be maximized in areas of suitable habitat for cactus and agaves.
    Protection of the cactus will be stressed in environmental education
    for contractors involved in construction or maintenance of facilities.

        48. To prevent entrapment of wildlife species during emplacement of
    vertical posts/bollards, all vertical fence posts/bollards that are
    hollow (i.e., those that will be filled with a reinforcing material
    such as concrete), will be covered so as to prevent wildlife from
    entrapment. Covers will be deployed from the time the posts or hollow
    bollards are erected to the time they are filled with reinforcing
    material.

        49. To prevent entrapment of wildlife species during the
    construction of the project, all excavated, steep-walled holes or
    trenches will either be covered at the close of each working day by
    plywood or provided with one or more escape ramps constructed of earth
    fill or wooden planks. The ramps will be located at no greater than
    1,000-foot intervals and will be sloped less than 45 degrees. Each
    morning before the start of construction and before such holes or
    trenches are filled, they will be thoroughly inspected for trapped
    animals. Any animals so discovered will be allowed to escape
    voluntarily (by escape ramps or temporary structures), without
    harassment, before construction activities resume, or removed from the
    trench or hole by the biological monitor and allowed to escape
    unimpeded.
    BMPs for Temporary Impacts

        1. Site restoration of temporarily disturbed areas such as staging
    areas and construction access routes will be monitored as appropriate.

        2. During follow-up monitoring of any restoration areas, invasive
    plants that appear on the site will be removed. Mechanical removal will
    be done in ways that eliminate the entire plant and remove all plant
    parts to a disposal area. All chemical applications on refuges must be
    used in coordination with the NPS Integrated Pest Management
    Coordinator to ensure accurate reporting. Herbicides can be used
    according to label directions. The monitoring period will be defined in
    the site restoration plan. Training to identify non-native invasive
    plants will be
    Species-Specific BMPs

        (Note the species-specific BMPs will be uniquely developed for each
    species potentially found in the vicinity of the project. In this case,
    the BMPs for Lesser long-nosed bat a formerly listed species in the
    project area are representative of the BMPs which would be developed
    for species in the project area).
    Lesser Long-Nosed Bat

        1. When planning activities, avoid, to the extent practicable,
    areas containing columnar cacti (e.g., saguaro and organ pipe) or
    agaves that provide the forage base for the bat.

        2. Maintenance activities for facilities can occur at any time;
    however, for major work on roads or fences where significant amounts of
    equipment will be required, the October to April period is the
    preferred period for such activities.

        3. If construction or maintenance activities continue at night, all
    lights will be shielded to direct light only onto the work site and the
    area necessary to ensure the safety of the workers.

        Question 7. Can you provide any additional details about the
    cultural resources identified in the 2019 survey by the National Park
    Service? Has there been previous border security work completed in
    proximity to or on Monument Hill in which you have been involved?

        Answer. The 2019 National Park Service archeological survey was
    conducted along approximately 11 miles of border near Quitobaquito
    Springs. The National Park Service has not reported any recent
    archeological surveys on Monument Hill. Details from the 2019 National
    Park Service survey have been redacted and are not available to the
    public.

        In 2003, the National Park Service issued an environmental
    assessment for construction of a border barrier and adjacent 30-foot-
    wide road along 35 miles of monument boundary, including Monument Hill
    and Quitobaquito Springs. The National Park Service completed an
    archeological survey of the project site and determined no significant
    cultural resources would be impacted. The Tohono O'odham Tribe provided
    no comments on the environmental assessment regarding potential impacts
    from either road construction or border barrier construction on either
    Monument Hill or Quitobaquito Springs.

        In 2007, CBP issued an environmental assessment for 5.2 miles of
    mesh pedestrian fence centered on Lukeville, and located about 3 feet
    north of the National Park Service-constructed vehicle fence (within
    the Roosevelt Reservation). This project included 0.65 miles of primary
    pedestrian fence on Monument Hill. The disturbance corridor for this
    project was expanded from the 30-foot-wide corridor under the 2003
    National Park Service environmental assessment to the full 60-foot-wide
    Roosevelt Reservation. CBP conducted an archeological survey of the
    project site and the environmental assessment found no potential
    impacts on cultural resources. The Tribe made no comment about cultural
    significance of Monument Hill after this environmental assessment was
    publicly released.

        In 2009, CBP issued an environmental assessment for construction of
    10 surveillance and communication towers within and adjacent to the
    monument, including one tower within 2 miles of Monument Hill. The
    Tribe made no comment on this environmental assessment regarding the
    cultural significance of Monument Hill.

        In 2012, CBP issued an environmental assessment addressing
    maintenance and repair of all existing CBP tactical infrastructure
    (roads, fences, bridges, lighting, vegetation control, drainage
    structures, surveillance towers, etc.) in Arizona. The proposed action
    included maintenance of the border fence constructed by the National
    Park Service, the pedestrian fence on Monument Hill constructed by CBP
    and the adjacent road on Monument Hill. The Tribe provided no comment
    on this environmental assessment regarding the cultural significance of
    Monument Hill.

        The current CBP project on Monument Hill is located within the
    Roosevelt Reservation and includes the areas addressed under the
    previous environmental assessments referenced above. It is unknown why
    the Tohono O'odham Tribe never expressed their concern about the sacred
    nature of Monument Hill or Quitobaquito Springs during any of these
    previous environmental compliance efforts.

        Question 8. Was there a study or survey conducted at that location
    prior to construction activities occurring? Was the Tribe involved in
    that process?

        Answer. The Roosevelt Reservation in the vicinity of both
    Quitobaquito Springs and Monument Hill has been surveyed on multiple
    occasions in the past. See response to Question #7.

        Question 9. Is there evidence that the border wall will impact
    listed species such as the Sonoran pronghorn?

        Answer. There are Sonoran pronghorn populations both north and
    south of the US/MX border. In the last decade, movement of a number of
    pronghorn from the U.S. population have been monitored by GPS-enabled
    collars. Data collected from these GPS collars confirms that movement
    of pronghorn across the currently permeable vehicle barrier along the
    border is extremely rare. Once the border wall is completed, no further
    movement of pronghorn across the border will occur. The current
    recovery plan for the Sonoran pronghorn does not anticipate movement of
    pronghorn between the United States and Mexico populations. Rather, the
    recovery plan anticipates recovery will be accomplished entirely within
    the United States. Therefore, construction of the border wall is not
    anticipated to impact survival or recovery of the Sonoran pronghorn.

                                     ______

        Mr. Gallego. Thank you very much. We will start asking
    questions. I will start by recognizing myself for 5 minutes.
        Chairman Norris, can you take what Mr. Hodapp just said,
    and do you have anything to respond to what he just said, why
    there was no interest before?
        Mr. Norris. Thank you, Chairman Gallego, members of the
    Committee. It is kind of interesting to hear Mr. Hodapp make
    those comments because the situation is different. We are not
    talking about blasting. We are not talking about bulldozing. We
    are not talking about desecration. We are not talking about
    running through archaeological sites. We are not talking about
    digging up graves in that situation that he was describing.
        Mr. Gallego. So, is it safe to say what Mr. Hodapp was
    describing is not at all the same as what we are describing
    right now and, therefore, there wasn't probably as much
    opposition because it wasn't as intrusive and insulting--is
    that correct?
        Mr. Norris. Exactly.
        Mr. Gallego. Thank you. Chairman Norris, let's move on to
    something else. In a recent meeting, you mentioned to me that
    immediately following Chairman Grijalva's visit to the border
    to bring attention to the Tribe's sacred sites, CBP actually
    skipped several miles of wall construction to begin blasting on
    Monument Hill. Do you think that this shows that CBP was aware
    of the harm and controversy blasting Monument Hill would cause
    and didn't want to wait to hear opposition? What is your
    interpretation of why they suddenly just jumped a couple miles
    to Monument Hill?
        Mr. Norris. Well, I think because exactly that. I think
    that they knew that the Nation and its people were going to be
    seriously concerned about blasting, concerned about the
    desecration, concerned about these things. And I think they
    knew that, so they decided, well, let's go ahead and move
    forward and start doing what we need to do because we know the
    Nation is going to raise issue and opposition to that.
        Mr. Gallego. Is it also true that CBP has widened roads
    both on Monument Hill and Quitobaquito Springs without
    notifying the Tribe at all, or did they notify you in a very
    short manner?
        Mr. Norris. Well, with regards to the blasting, I didn't
    learn about the blasting until the day they started. I received
    an e-mail from the tribal liaison that said, ``We are going to
    start blasting today.'' In fact, that was the only notification
    that I had. One of the things that I raised to that person is,
    ``Why are you giving me notice now when you didn't give me any
    notice when you decided to bulldoze and grade through the
    Quitobaquito Springs area?'' And I have not received any
    response to that question.
        Mr. Gallego. Ms. Krakoff--did I say that correctly?
        Ms. Krakoff. It is Krakoff. Thanks for asking.
        Mr. Gallego. Thank you. Ms. Krakoff, hearing what Chairman
    Norris just described as the consultation that was given to
    him, what would you describe that as if you were--in your terms
    as a lawyer? What would you describe what was just discussed by
    Chairman Norris?
        Ms. Krakoff. Inadequate, perfunctory, and I wish I could
    say that it was atypical, but often Federal requests for tribal
    consultation are just trying to check the box that they did
    something.
        Mr. Gallego. Excellent. The Department of the Interior's
    testimony today argues that the construction of a border wall
    will actually improve protection of sacred sites. Given the
    Tribe's extensive experience working on border security--this
    is to you, Chairman Norris--and the destruction that has
    already occurred, do you think this is a valid argument?
        Mr. Norris. Chairman, would you repeat the question,
    please?
        Mr. Gallego. Sure, Chairman. Part of the argument that we
    are going to hear today from both the Administration and
    probably some of our fellow Members of Congress is that the
    construction of the border wall will actually help protect
    sacred sites. Given what you know, and given the history of the
    Tohono O'odham Nation protecting the border, do you agree with
    their argument--this is why they should be able to blast
    through these monuments?
        Mr. Norris. Well, I find it very hard to believe that the
    effort will help protect sacred sites when, in fact, to the
    contrary, that has not been what was going on now. There have
    been desecrations. There has been blasting. There have been
    artifacts. There have been remains that have been ruined and
    forever lost. So, I have a tendency to disagree that this is
    going to protect those because blasting them is not protection.
        Mr. Gallego. Thank you.
        Ms. O'Loughlin, in both our remarks, Chairman Norris and I
    reference Arlington National Cemetery as a burial ground with
    national historic and cultural as well as personal
    significance. Your testimony points out the double standard
    that exists for protection of tribal sacred burial grounds
    versus other cemeteries, war memorials, and churches. Can you
    expand on this?
        Ms. O'Loughlin. Well, this is the result of historic
    Federal policy and law that was meant to separate us from our
    sacred places, that was meant to take away our religion so that
    we would assimilate and more land would be opened up for
    colonization and for the growth of the new Nation. And U.S. law
    has never really correctly repaired this issue.
        Today, we have corrective measures like NAGPRA, National
    Historic Preservation Act, some Executive Orders and other Acts
    that help bring tribes to the table before these decisions are
    made. But, often, that is not the case, and that is not what we
    have been finding during this Administration.
        Mr. Gallego. Thank you. I yield the remaining time to
    Ranking Member Gosar. Yield--that is true. I yield to
    Representative Gosar.
        Dr. Gosar. Thank you, Mr. Chairman. Now that we have heard
    the testimony and moved to the question part of this hearing,
    it is a good time for me to ask my colleagues. Do you actually
    care about the environment, or is it just another political
    prop? I know the answer. When convenient, it is a wonderful
    political prop. As we saw, if you look at the--do we have that
    up here? Yes. As we saw at this Committee 3 weeks ago with the
    Democrat effort to ban mining in Minnesota, you love to protect
    the environment here but don't hesitate to sacrifice the
    environment of the Congo and the lives of Congolese children at
    the altar of your protectionism.
        This hearing today is another reckless example.
    Uncontrolled illegal immigration is an overwhelmingly
    destructive activity. You can see by what we are actually
    showing pictures of that were just taken. It is an activity
    that has deeply scarred the border regions from the San Diego
    Wildlife Refuge and Organ Pipe National Monument to the Rio
    Grande and Big Bend National Park.
        Drug running, human trafficking, trash, feces, water
    pollution, damaged springs and seeps, foot and illegal vehicle
    transit, all of the destruction as a result of illegal
    trafficking has left deep scars and environmental destruction
    across the landscape. If the Federal Government were required
    to consider the environmental impacts of this open borders
    policy under the NEPA, the preferred alternative, there would
    certainly be a border wall. There is no question that the deep
    impact on natural resources, waters, and species by this
    traffic throughout the landscape has a real impact. However, in
    pursuit of a political open-borders agenda, you are happy to
    ignore and minimize the environmental impact. You are also
    willing to not only minimize but degrade the human impact of
    the lack of border control. The Tucson sector of the border
    continues to have some of the highest rates of death among
    border crossers, accounting for 20 percent of all border deaths
    in 2018.
        But it isn't just deaths of random border crossers that you
    ignore with an open-borders agenda. It is our hard-working
    personnel as well. When you arrive at Organ Pipe Cactus
    Monument, as stated earlier, you are greeted by the Kris Eggle
    Visitor Center. Kristopher William Eggle was a law enforcement
    park ranger with the National Park Service. Growing up, he was
    an Eagle Scout, National Honor Society Student, the
    valedictorian of his class, and was elected president of his
    class at the Federal Law Enforcement Training Center.
        Kris Eggle devoted his life to protecting our country and
    our public lands. 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 just 28 years old. He died because we didn't have
    control of our borders, and we have failed to protect our
    people, which brings us to this reckless political hearing.
        I get it. You don't want the wall. You don't want to work
    with the Trump administration in building the wall. In fact,
    you offer no alternatives in securing that border. Despite your
    inaction, the wall is being built. President Trump is doing
    what he promised to do and no one should be shocked about that
    outcome.
        Now the questions. Ms. Krakoff, I am wondering, do you
    think illegal border crossers bathing, drinking, and defecating
    in Quitobaquito Springs and other seeps and springs will have
    an environmental impact on the resources and species at these
    critically important desert habitats? Yes or no.
        Ms. Krakoff. I think we would be able to assess the harms
    of----
        Dr. Gosar. Yes or no.
        Ms. Krakoff [continuing]. The wall construction versus the
    harms----
        Dr. Gosar. It is my time. It is my time.
        Ms. Krakoff [continuing]. Of the border crossing.
        Dr. Gosar. Let me--it is my time.
        Ms. Krakoff. If we actually did the environmental
    analysis----
        Dr. Gosar. It is my time.
        Ms. Krakoff [continuing]. That NEPA requires----
        Dr. Gosar. It is my time. Do you believe in climate change?
        Ms. Krakoff. Yes.
        Dr. Gosar. Does man have an impact on it?
        Ms. Krakoff. Absolutely.
        Dr. Gosar. So, I take it that you are yes on this one,
    then. Do you think illegal border crossers hiding in the adobes
    at Blankenship Ranch House or Gachado Line Camp, both
    registered historic places, are causing environmental damage to
    these historic protected places, and is the arson of the Bonita
    Campline shack, which was a protected structure burned down by
    illegal crossers, of a concern to you? Yes or no?
        Ms. Krakoff. I don't know--you are assuming the facts ahead
    of time. If all that were occurring, sure. That would be of
    concern to me.
        Dr. Gosar. This is what has actually happened. So, you
    should be concerned about that if what I heard from your
    testimony--now, do you think that the unauthorized vehicle
    routes and illegal off-road vehicle travel are impacting the
    border environment, including species, habitat, culture and
    archaeological sites because CBP says that this sort of UVR
    activity is questionable? I mean, you see it up here. That is
    endangering the wildlife. Is it not?
        Ms. Krakoff. Many things endanger the wildlife, and so does
    the construction of the border wall.
        Dr. Gosar. And illegal crossers don't take that into
    consideration? They were fully apprised of the ESA--Endangered
    Species Act--right? I think you brought that up.
        Ms. Krakoff. Yes, well----
        Dr. Gosar. So, they are fully aware that they are harming
    species, right?
        Ms. Krakoff. I don't believe they are complying with the
    ESA. I don't believe there have been the kinds of
    consultations--in fact, I know there have not--that would be
    required under the ESA because the Secretary of Homeland
    Security has waived application of the----
        Dr. Gosar. Well, once again, I wasn't bringing that up.
        Ms. Krakoff [continuing]. Endangered Species Act.
        Dr. Gosar. What I was talking about is illegal crossings. I
    think the facts speak for themselves.
        Mr. Gallego. Thank you, Representative Gosar.
        We now recognize Representative Deb Haaland.
        Ms. Haaland. Thank you, Chairman. Thank you.
        First, I just need to say this. Mr. Hodapp, you sat here
    and misrepresented your alleged consultation with the Tohono
    O'odham Tribe, and I take issue with that. And I just needed to
    bring that up so it is on the record.
        I want to also make sure that every single one of my
    colleagues in this hearing room understands that this hearing
    is about sacred sites of the Tohono O'odham Tribe and that is
    all. That is what we are here to discuss, and that is what we
    are here to defend.
        So, my first question--actually, I have a statement first.
    Thank you, Chairman, for having this hearing. As one of the
    first Native women in Congress, I find it my duty to speak up
    for Indian Country and the Administration's lack of respect for
    the Federal trust responsibility we have to Native nations.
    During the recent NCAI session, this was exemplified when the
    Interior failed to answer basic questions from tribal leaders
    and is further illustrated with the construction at the border
    wall. When tribes do not have a seat at the table, Indigenous
    history is lost.
        In this case, the Tohono O'odham Nation has lost pieces of
    its ancestors to bulldozers and explosions. This bears
    repeating. The President threatens to destroy Iran's cultural
    sites and, yes, that would be a tremendous loss to our world.
    It is considered an international war crime when he states
    this. But how is what is happening here on the Tohono O'odham
    Nation any different?
        This is also not the first time this Administration has
    moved forward to destroy Indigenous sacred sites with no tribal
    consultation. They recently opened up Bears Ears and Grand
    Staircase-Escalante, ancestral homelands of the Pueblo people,
    for drilling instead of protecting these Indigenous sacred
    sites. This irreparably ruins over 1,000 years of Indigenous
    culture and ceremonial sites. It is a complete failure of the
    Federal Government's trust responsibility and lack of respect
    for Native people in this country.
        And in spite of how the Administration finagles their way
    to get this done, they stand by the fact that they are saying
    this is legal. It is wrong. It is sacrilegious. And it is not
    who we are as Americans. As far as I am concerned, they can go
    around and do everything legally. It is immoral. It is immoral,
    and I am still trying to figure out how the President sleeps at
    night.
        Chairman Norris, your testimony discusses two cultural
    sites that have been damaged by the border wall construction,
    Quitobaquito Springs and Monument Hill. But these sites are not
    on the reservation. Why are these sites important to you and
    your people if they are not on your reservation?
        Mr. Norris. Chairman Gallego, members of the Committee,
    Congresswoman, thank you for that question. Regardless of
    whether or not these sites are on or off the Tohono O'odham
    Nation, we are on this reservation not because we wanted to be
    on this reservation, but our ancestral lands extended well
    beyond where our current reservation land is today.
        So, in that, we have an obligation. We have a
    responsibility. We have a vested interest in protecting and
    securing the safety of our ancestors and the remains of our
    ancestors and protecting these sacred sites regardless of
    whether or not they are on our current reservation land. They
    are still within the ancestral lands of the O'odham. And that
    is why it is important to us.
        Ms. Haaland. Thank you. How have tribal citizens responded
    to the news of DHS bulldozing and blasting the Nation's sacred
    sites in Organ Pipe?
        Mr. Norris. It is hard. It is hard to see the blasting that
    you showed on the video today because I know in my heart and
    what our elders have told us and what we have learned that that
    area is home to our ancestors. And blasting and doing what we
    saw today has totally disturbed, totally, forever damaged our
    people. Thank you.
        Ms. Haaland. I yield, Chairman.
        Mr. Gallego. Thank you, Representative Haaland. I now
    recognize Representative Garcia.
        Mr. Garcia. Thank you, Chairman Gallego and Ranking Member
    Cook or Gosar. Thank you to the witnesses who are here today.
    The first question that I want to ask is what kind of
    consultation has there been with the tribes who have raised
    objections to the blasting and the clearing away of the land to
    build the wall. And I would like to direct that to Mr. Hodapp.
        Mr. Hodapp. I am not directly involved as a CBP employee,
    as I retired last March. But what I can tell you in general is
    that CBP issued a letter in May 2019 soliciting input broadly
    from all interested parties, including the Tribe. That door for
    input was open for 3 months, and CBP is considering that input
    as they implement and construct the barrier in that area.
        Mr. Garcia. Do you consider that to be a formal engagement
    with the tribes or casual conversations?
        Mr. Hodapp. In my personal opinion, it is not formal
    consultation as provided for under the statutes, but you have
    to remember that the Administration has waived these statutes.
    So, there is discussion, but it is not under the formal
    procedures.
        Mr. Garcia. So, you could pretty much do whatever you want
    because of the waiver? Is that what you are saying?
        Mr. Hodapp. I mean, the Congress has authorized the waiver
    to apply to any law that the Secretary believes is required in
    order to permit expeditious fence construction.
        Mr. Garcia. So, you could do whatever you want, basically?
        Mr. Hodapp. That is the authorization that Congress has
    provided.
        Mr. Garcia. Thank you. Chairman Norris, what would you
    respond to the same question about what is referred to as this
    consultation with the tribes that allegedly took place?
        Mr. Norris. Thank you, Mr. Chairman, Members of Congress.
    Thank you, Congressman, for that question. That is not
    consultation. That is not government-to-government
    consultation. A telephone call letting us know what is going on
    or even a meeting that is called between the parties is not
    consultation. It is not leader-to-leader. It is not with the
    people that have the authority to make the decisions that are
    going to impact us or may impact them.
        So, these meetings that are being referred to, in our
    opinion, have never been consultation. We have never been
    consulted on a government-to-government level on this issue by
    anyone, the Bureau of Indian Affairs, the Department of the
    Interior, anybody. You may get some folks that are coming here
    to testify and say that we do consultation. We have done many
    consultations over the course of time. I don't doubt that. But
    ask the question to them. How many of these consultations were
    done pursuant to this particular wall construction activity and
    the desecration that has been going on? And I guess they are
    going to tell you none of them.
        Mr. Garcia. Thank you very much. Mr. Chairman, I yield
    back. I have some questions for the following panel as well.
    Thank you.
        Mr. Gallego. Thank you, Representative Garcia. We will move
    to Representative Soto. As other Members of the Minority come
    in, we will also be recognizing them. Thank you.
        Mr. Soto. Thank you, Mr. Chairman. And Chairman Norris,
    thank you for being here today. I could not imagine how painful
    this all is for you and the Tohono O'odham Tribe. I know that
    we will have major debates over border walls in Washington and
    through the courts. But I think the key here today is that
    these things can be still built respectfully and going through
    the process and making sure we are not destroying people's
    heritage in the process. And I think that is what this is
    really about today. It is doing it in a respectful way as these
    debates go on.
        Chairman Norris, you had outlined a variety of Border
    Patrol initiatives that the Tohono O'odham Nation has
    jumpstarted over the past few decades. Often, these initiatives
    require coordination with ICE special agents, Border Patrol
    operatives, and the FBI. Can you elaborate on the working
    relationship that the Nation has maintained with these non-
    tribal entities?
        Mr. Norris. Thank you for that question, Congressman. I sit
    here and I share with you that the Tohono O'odham Nation's
    leadership--I have 2 of our 22 Legislative Council members with
    me today--has a long history of working with the Border Patrol.
    Even at the opposition of our own people, our leadership has
    worked with the Border Patrol.
        The Tohono O'odham Nation understands and realizes the need
    to protect the United States of America. We will do what is
    necessary and short of building a wall, we will do what we can
    to ensure the security of the United States of America. We
    understand that, and we will continue that relationship.
        Many times, decisions that are made in Washington, DC can
    have a negative effect on the relationship that we spent many
    years building with the local folks back at home. We have a
    long history, but we have done that in good conscience. We have
    done that giving all consideration to what the impacts are
    going to be, not only to the United States of America but also
    to the Tohono O'odham Nation itself. So, we will continue to
    work on the relationship. We will continue to do what is
    necessary short of building a wall. We will never agree to a
    wall that is being built. We will never agree to what is being
    built now and this desecration of our sacred sites.
        We have developed the relationship that we will continue,
    but it makes it difficult when decisions that are made in
    Washington, DC are negatively impacting that relationship that
    we spent a long time to build with the local folks----
        Mr. Soto. Thank you, Mr. Chairman. I am also concerned
    about the precedent set right now, the dangerous precedent that
    could be set for other tribal sites throughout the Nation. You
    reference in your testimony Section 102(c) of the Illegal
    Immigration Reform and Immigrant Responsibility Act and the
    waiver authority granted to DHS within it. Are there other
    sacred sites or cultural resources of significance to the
    Nation that are likely to be negatively impacted by the ongoing
    and planned border wall construction?
        Mr. Norris. In addition to Monument Hill, in addition to
    Quitobaquito, further west of there is another area in the
    Cabeza Prieta National Monument, an area commonly referred to
    as Las Playas. Right in that area has been identified a
    ceremonial ground that, in my estimation, is about a football
    field in length and about half a football field in width. We
    have history. We have our elders. We have archaeologists that
    have identified that area as ceremonial grounds to the Hia-C'ed
    O'odham people, our lineage with the Hia-C'ed O'odham.
        And even just a little bit further down, another 4 or 5
    miles from there, there is a definite burial ground, burial
    site, within the current road of the proposed border wall. That
    is a significant burial ground. There is no way around that. In
    November, we had proposed a letter to the Department of
    Homeland Security some alternatives in addressing the sacred
    sites, some alternatives they may want to consider in working
    with us to try to eliminate the desecration that is going to go
    on if they continue to bulldoze. I got a response from that
    letter. They basically ignored the recommendations that we were
    making as alternatives.
        Mr. Soto. Thanks. And my time has expired.
        Mr. Gallego. Thank you, Representative Soto. We now
    recognize Chairman Grijalva.
        Mr. Grijalva. Chairman, let me reaffirm what our colleague,
    Ms. Haaland, said. The necessary debate about the border wall
    and my opposition to it on many levels is a debate that we have
    been having and we will continue to have, and I think that is
    important. But what we are talking about here today is a very
    significant point, and she mentioned this, about sacred sites.
    It is about trust responsibility. And it is about abuse of
    power.
        And I think that we have to keep that in focus, that the
    Nation has, through its own pocketbooks of its people, provided
    paramedic support for migrants that are out in the desert, has
    provided additional law enforcement and response, and watched
    their roads being destroyed because of the use by Border
    Patrol, and from their own revenues, they have sustained that.
        So, to even imply that this is something other than, I
    think is a huge mistake. Chairman Norris, one of the issues
    that you brought up and I thought was important is to talk a
    little bit about how you see the relationship in terms of how
    the resources that DHS has employed to assess the cultural
    significance. One of the things that these waivers do and the
    REAL ID does is that it is not just a question of expediting.
    You just overlook things and with legal protection.
        So, the cultural significance of the sites that we are
    talking about plus others that have been identified in the
    past, in your opinion, has DHS adequately surveyed Organ Pipe
    Monument for tribal impacts? Have the surveys been completed
    that reflect input from the Nation and the National Park
    Service survey that identified a number of important
    archaeological and cultural sites in the Tucson project area?
    Was that study reflected, that you know of, in anything that
    DHS has done?
        Mr. Norris. Thank you, Congressman, for that question. Let
    me just talk about the National Park Service's own
    archaeological study of 11 miles of the border in the Organ
    Pipe. In that study, it found that it is probable that
    significant presently unrecorded surface level and buried
    archaeological deposits, mainly the sacred site and cultural
    patrimony about which the Nation is worried, persist across
    where the wall is being built. That was the statement out of
    that study.
        In addition, the Park concluded that we must assume that
    all such unrecorded deposits will be destroyed over the course
    of the ensuing border wall construction. So, simply to say that
    somebody such as Mr. Hodapp or anyone else at his level came
    out and did surveys and looked at this area is not an in-depth
    archaeological survey of that particular area.
        Mr. Grijalva. OK. Thank you. Any time the questions are
    raised about the wall and in this particular issue here that I
    think is very much different, the response is always, ``Well,
    you are for open borders. You are for murderers, thieves, drug
    runners, people smugglers. You are condoning the death of a
    ranger because you have questions about the wall.'' None of
    that is true. None of that is true, and I think that, if I may,
    Mr. Chairman, that this discussion has to focus on the
    jurisdiction this Committee has in terms of Indian Country and
    the protection of those laws that were put in place to try to
    reaffirm an identity that there had been attempts to wipe out.
        And I think this is an important issue. It is a precedent.
    And the fact that there is no consultation, the fact that the
    trust responsibility is being violated and the fundamental
    question of sovereignty is being violated as well, I think,
    requires this Committee to explore whatever possibilities are
    available to us.
        It is OK for this Administration to try to undo NEPA. It is
    OK for this Administration to try to undo ESA. It is OK for a
    major funder of this President's campaigns and inauguration to
    get the contract to build a fence in Organ Pipe. That is
    somehow permissible and it is not OK. I think there are things
    that we need to look into in this Committee, and I appreciate
    this hearing, Mr. Chairman, and I yield back.
        Mr. Gallego. Thank you, Mr. Chairman. I want to thank the
    first panel for answering our questions. The members of the
    Committee may have some additional questions for the witnesses,
    and we will ask you to respond to those in writing. I now
    invite Panel 2 to take their places at the witness table.
        As with the previous panel, oral statements are limited to
    5 minutes, but your entire statement will be part of the
    hearing record. When you began, the lights on the witness table
    will turn green. After 4 minutes, the yellow light will come
    on. Your time will have expired when the red light comes on. I
    will ask you to please wrap up your statement. I will also
    allow the entire panel to testify before we question the
    witnesses.
        Now I would like to introduce our distinguished witnesses
    at this point. Our first witness is Dr. Anna Maria Ortiz, the
    Director of Natural Resources and Environment at the U.S.
    Government Accountability Office. Dr. Ortiz.

    STATEMENT OF ANNA MARIA ORTIZ, DIRECTOR, NATURAL RESOURCES AND
    ENVIRONMENT, U.S. GOVERNMENT ACCOUNTABILITY OFFICE, WASHINGTON,
                                   DC

        Dr. Ortiz. Good morning, or good afternoon. Thank you,
    Chair Gallego, Ranking Member Gosar, Chair Grijalva, and
    members of the Subcommittee. Thank you for having me here
    today. During the expansion of the United States, the Federal
    Government forcibly removed countless Native Americans from
    their original homelands. Other tribes ceded lands and
    resources to the Federal Government in treaties and agreements.
        Recognizing that Indian tribes' interests and historic
    sites and natural resources did not end with their relocation,
    the United States later enacted several laws designed to
    protect Indian cultural and natural resources, a goal
    consistent with the Federal trust responsibility. Tribal
    consultation requirements are an important element of these
    laws. When triggered, tribal consultation provisions require
    agencies to consult with tribes on activities and
    infrastructure projects that risk affecting current or
    ancestral lands and resources.
        Tribal consultation is a critical mechanism for
    demonstrating the United States' commitment to tribal
    sovereignty and its respect for the government-to-government
    relationship with tribes. More than 60 percent of the comments
    GAO reviewed from 100 tribes highlighted potential impediments
    to Federal tribal consultation. When tribes get notification
    too late in a project, important decisions may already have
    been made. When agencies fail to adequately weigh tribal input,
    they can imperil cultural resources that might have been
    preserved with a modest adjustment.
        One tribe told us that an agency's failure to consult when
    approving county road work resulted in desecration of a burial
    mound, scattering their ancestors' remains and exposing them to
    the elements. Poorly executed tribal consultation limits tribal
    governments' opportunities for input, sows mistrust and can
    expose agencies to legal challenges later on.
        Thankfully, several agencies have taken steps to improve
    the likelihood of successful tribal consultation. For example,
    HUD and two other agencies have developed systems to help
    identify tribes that should be consulted on projects because
    they have current or ancestral interests in an area or
    resource. EPA's policy requiring formal written communication
    from a senior agency official to an affected tribe following a
    consultation has facilitated positive outcomes despite
    sometimes challenging circumstances. One tribe told us that
    they considered its consultation with the EPA a success even
    when the tribe disagreed with the agency's final decision
    because the letter helped it to understand the rationale behind
    the decision. This example underscores a critical takeaway from
    GAO's research that effective tribal consultation does not
    always mean that everyone agrees on the outcome. It does mean
    that agencies do their best to obtain tribal input in a timely
    fashion, weigh that input appropriately, and respect the
    government-to-government relationship with tribes, or, in the
    words of one tribe we spoke with, ``striving for the intent of
    consultation requirements rather than going through the motions
    of compliance.''
        GAO has made recommendations to 17 agencies on how to
    improve their approaches to tribal consultation. These
    improvements will help ensure that the Federal Government
    respects tribal sovereignty and works in partnership with
    tribal governments to minimize adverse consequences of
    infrastructure projects on current and former tribal lands and
    resources. That tribes no longer maintain sole claim to
    specific religious or historic sites or that government
    infrastructure requires construction at a specific location
    does not render these tribal lands, artifacts, and sites any
    less sacred. This concludes my oral statement. I welcome your
    questions.

        [The prepared statement of Dr. Ortiz follows:]
    Prepared Statement of Anna Maria Ortiz, Director, Natural Resources and
               Environment, U.S. Government Accountability Office

                             NATIVE AMERICAN ISSUES

        examples of certain federal requirements that apply to cultural
             resources and factors that impact tribal consultation
    Why GAO Did This Study
        Federal agencies are required in certain circumstances to consult
    with tribes on infrastructure projects and other activities--such as
    permitting natural gas pipelines--that may affect tribal natural and
    cultural resources. According to the National Congress of American
    Indians, Federal consultation with tribes can help to minimize
    potential negative impacts of Federal activities on tribes'
    culturalresources.
        The Secretary of Homeland Security has waived Federal cultural
    resource laws that generally require Federal agencies to consult with
    federally recognized tribes to ensure expeditious construction of
    barriers along the southern U.S. border.
        This testimony discusses examples of (1) federal laws and
    regulations that apply to Native American cultural resources and (2)
    factors that impact the effectiveness of federal agencies' tribal
    consultation efforts. It is based on reports GAO issued from July 2018
    through November 2019 related to Federal laws that apply to Native
    American cultural resources, tribal consultation for infrastructure
    projects, and border security. It also includes additional information
    about the consultation requirements in these cultural resource laws and
    regulations.
    What GAO Recommends
        GAO recommended in March 2019 that 17 Federal agencies take steps
    to improve their tribal consultationpractices. The agencies generally
    agreed and one agency has implemented the recommendation.
    What GAO Found
        Examples of Federal laws and regulations that apply to Native
    American cultural resources include:

         The Native American Graves Protection and Repatriation Act
                (NAGPRA). In August 2018, GAO reported that NAGPRA
                prohibits the intentional removal from, or excavation of,
                Native American cultural items from Federal or tribal lands
                unless a permit has been issued and other requirements are
                met. NAGPRA and its implementing regulations contain
                provisions to address both the intentional excavation and
                removal of Native American cultural items as well as their
                inadvertent discovery on Federal and tribal lands.

         Section 106 of the National Historic Preservation Act
                (NHPA). In March 2019, GAO reported that section 106 of the
                NHPA and its implementing regulations require Federal
                agencies to consult with Indian tribes when agency
                ``undertakings'' may affect historic properties--including
                those to which tribes attach religious or cultural
                significance--prior to the approval of the expenditure of
                Federal funds or issuance of any licenses.

        In March 2019, GAO reported that tribes and selected Federal
    agencies identified a number of factors that impact the effectiveness
    of consultation on infrastructure projects, based on GAO's review of
    the comments on consultation submitted by 100 tribes to Federal
    agencies in 2016 and GAO's interviews with officials from 57 tribes and
    21 Federal agencies. Examples of these factors include:

         Agency consideration of tribal input. Sixty-two percent of
                the 100 tribes that provided comments to Federal agencies
                in 2016 identified concerns that agencies often do not
                adequately consider the tribal input they collect during
                consultation when making decisions about proposed
                infrastructure projects.

         Maintaining tribal contact information. Officials from 67
                percent of the 21 Federal agencies in GAO's review cited
                difficulties obtaining and maintaining accurate contact
                information for tribes, which is needed to notify tribes of
                consultation opportunities.

        GAO also found that the 21 agencies in GAO's review had taken some
    steps to facilitate tribal consultation. For example:

         Eighteen agencies had developed systems to help notify
                tribes of consultation opportunities, including contact
                information for tribal leaders or other tribal officials.

         Five agencies' tribal consultation policies specify that
                agencies are to communicate with tribes on how tribal input
                was considered.

                                     *****

        Chairman Gallego, Ranking Member Cook, and Members of the
    Subcommittee:
        Thank you for the opportunity to discuss examples from our prior
    work regarding Federal laws and regulations that apply to Native
    American cultural resources and factors that impact the effectiveness
    of Federal agencies' tribal consultation efforts for infrastructure
    projects. Federal cultural resource laws include the Native American
    Graves Protection and Repatriation Act (NAGPRA), the Archeological
    Resources Protection Act of 1979 (ARPA), and section 106 of the
    National Historic Preservation Act (NHPA). These acts and their
    implementing regulations cover different cultural resources, including
    Native American cultural resources, but all require Federal agencies to
    consult with federally recognized Indian tribes in certain
    circumstances. According to the National Congress of American Indians,
    Federal consultation with tribes can help to minimize potential
    negative impacts of Federal infrastructure projects on tribes' natural
    resources and cultural resources, which may include cultural items
    protected by NAGPRA and archaeological resources subject to ARPA.\1\
    Federal agencies are to consult with tribes on many infrastructure
    projects and other Federal activities.\2\ For example, infrastructure
    projects, such as constructing pipelines, may involve various Federal
    activities that trigger statutory and regulatory tribal consultation
    requirements.
    ---------------------------------------------------------------------------
        \1\ See National Congress of American Indians, NCAI Comments on
    Tribal Trust Compliance and Federal Infrastructure Decision-Making
    (Nov. 30, 2016). The National Congress of American Indians is a non-
    profit organization that advocates for tribal governments and
    communities.
        \2\ For the purposes of this testimony, we define infrastructure to
    include any ground-disturbing activities. For example, infrastructure
    may include surface transportation such as highway or rail
    infrastructure, energy development such as wind turbine projects, and
    facilities construction such as visitor centers in national parks.
    ---------------------------------------------------------------------------
        As Congress found in the Indian Trust Asset Reform Act, ``through
    treaties, statutes, and historical relations with Indian tribes, the
    United States has undertaken a unique trust responsibility to protect
    and support Indian tribes and Indians.'' \3\ The act also notes that
    the historic Federal-tribal relations and understandings have benefited
    the people of the United States for centuries and established
    ``enduring and enforceable [f]ederal obligations to which the national
    honor has been committed.'' \4\ We have previously reported that
    agencies can improve the efficiency of Federal programs that serve
    tribes and can take additional actions to improve tribal consultation
    for infrastructure projects.\5\ Such improvements would be consistent
    with the expressed view of Congress in the act as to the Federal
    Government's trust responsibilities and would strengthen the
    performance and accountability of the Federal Government.
    ---------------------------------------------------------------------------
        \3\ Pub. L. No. 114-178, Sec. 101(3) (2016) (codified at 25 U.S.C.
    Sec. 5601(3)). See also U.S. Commission on Civil Rights, Broken
    Promises: Continuing Federal Funding Shortfall for Native Americans
    (Washington, DC: December 2018).
        \4\ Pub. L. No. 114-178, Sec. 101(5) (2016) (codified at 25 U.S.C.
    Sec. 5601(5)).
        \5\ GAO, High-Risk Series: Progress on Many High-Risk Areas, While
    Substantial Efforts Needed on Others, GAO-17-317 (Washington, DC: Feb.
    15, 2017) and Tribal Consultation: Additional Federal Actions Needed
    for Infrastructure Projects, GAO-19-22 (Washington, DC: Mar. 20, 2019).
    ---------------------------------------------------------------------------
        In January 2017, the President issued Executive Order 13767, which
    directs the Secretary of Homeland Security to immediately plan, design,
    and construct a wall or other physical barriers along the southwest
    border.\6\ In response, U.S. Customs and Border Protection (CBP)
    initiated the Border Wall System Program to plan and deploy new
    barriers and other assets.\7\ Section 102 of the Illegal Immigration
    Reform and Immigrant Responsibility Act of 1996, as amended, authorizes
    the Secretary of Homeland Security to waive all legal requirements as
    determined to be necessary, in the Secretary's sole discretion, to
    ensure expeditious construction of barriers and roads under section
    102.\8\ The Secretary of Homeland Security has used this statutory
    authority to waive the three cultural resource laws identified above
    and their implementing regulations as well as certain other legal
    requirements. We have previously reported on the progress the
    Department of Homeland Security has made and challenges it has faced
    implementing its border security efforts.\9\
    ---------------------------------------------------------------------------
        \6\ Border Security and Immigration Enforcement Improvements, Exec.
    Order No. 13767, Sec. 4, 82 Fed. Reg. 8793, 8794 (Jan. 30, 2017)
    (issued Jan. 25). Executive Order 13767 defines ``wall'' as a
    ``contiguous, physical wall or other similarly secure, contiguous, and
    impassable physical barrier.'' See id. Sec. 3(e), 82 Fed. Reg. at 8794.
        \7\ Within the Department of Homeland Security, CBP's U.S. Border
    Patrol is the Federal agency responsible for securing U.S. borders
    between ports of entry. See 6 U.S.C. Sec. 211(a) (establishing CBP
    within the department), (c) (enumerating CBP's duties), (e)
    (establishing and listing duties of U.S. Border Patrol within CBP).
    Ports of entry are officially designated sea, air, or land border
    facilities that provide for the controlled entry into or departure from
    the United States.
        \8\ Pub. L. No. 104-208, div. C, Sec. 102(c), 110 Stat. at 3009-
    555, as amended by the REAL ID Act of 2005, Pub. L. No. 109-13, div. B,
    tit. I, Sec. 102, 119 Stat. 231, 306 (2005).
        \9\ GAO, Border Security: Assessment of the Department of Homeland
    Security's Border Security Improvement Plan, GAO-19-538R (Washington,
    DC: July 16, 2019); Southwest Border Security: CBP is Evaluating
    Designs and Locations for Border Barriers but Is Proceeding Without Key
    Information, GAO-18-614 (Washington, DC: July 30, 2018); and Southwest
    Border Security: Additional Actions Needed to Better Assess Fencing's
    Contributions to Operations and Provide Guidance for Identifying
    Capability Gaps, GAO-17-331 (Washington, DC: Feb. 16, 2017).
    ---------------------------------------------------------------------------
        My statement today will focus on examples of (1) Federal laws and
    regulations that apply to Native American cultural resources and (2)
    factors that impact the effectiveness of Federal agencies' tribal
    consultation efforts. My statement is based on work we issued from July
    2018 through November 2019 related to Federal laws that apply to Native
    American cultural resources, tribal consultation for infrastructure
    projects, and border security.\10\ It also includes additional
    information about the consultation requirements in these laws and
    regulations. To conduct our previously issued work, we reviewed
    relevant Federal laws, regulations, and policies; reviewed agency
    documentation; reviewed oral and written comments submitted by tribes
    to several Federal agencies; and interviewed tribal, Federal, and
    industry officials. To identify examples of factors that impact the
    effectiveness of Federal agencies' consultation efforts for this
    testimony, we considered those factors that more than 60 percent of 100
    tribes identified as hindering effective tribal consultation for tribes
    in our March 2019 report; \11\ we also considered those factors that
    more than 60 percent of 21 Federal agencies identified as concerns in
    our March 2019 report.\12\ More detailed information on our objectives,
    scope, and methodology for that work can be found in the corresponding
    issued reports.
    ---------------------------------------------------------------------------
        \10\ GAO, Tribal Programs: Resource Constraints and Management
    Weaknesses Can Limit Federal Program Delivery to Tribes, GAO-20-270T
    (Washington, DC: Nov. 19, 2019); GAO-19-22; Native American Cultural
    Property: Additional Agency Actions Needed to Assist Tribes with
    Repatriating Items from Overseas Auctions, GAO-18-537 (Washington, DC:
    Aug. 6, 2018); and GAO-18-614.
        \11\ GAO-19-22. We analyzed the transcripts of oral comments as
    well as written comments that 100 tribes provided to the Departments of
    the Interior, the Army, and Justice from October through December 2016
    during meetings, in letters submitted to the agencies, or both. The
    agencies collected these comments as part of developing an interagency
    report on barriers to and improvements needed for consultation on
    infrastructure projects, released in January 2017.
        \12\ GAO-19-22. We interviewed officials with 21 Federal agencies,
    which we selected because they are, in general, members of the Federal
    Permitting Improvement Steering Council and they consult with tribes on
    infrastructure projects. The 21 selected agencies are: the Department
    of Agriculture's Forest Service and Rural Development; Department of
    Commerce's National Oceanic and Atmospheric Administration; Department
    of Defense's Army Corps of Engineers; Department of Energy;
    Environmental Protection Agency; Federal Communications Commission;
    Federal Energy Regulatory Commission; Department of Homeland Security's
    Coast Guard and Federal Emergency Management Agency; Department of
    Housing and Urban Development; Department of the Interior's Bureau of
    Land Management, Bureau of Ocean Energy Management, Bureau of
    Reclamation, Fish and Wildlife Service, and National Park Service;
    Nuclear Regulatory Commission; and Department of Transportation's
    Federal Aviation Administration, Federal Highway Administration,
    Federal Railroad Administration, and Federal Transit Administration.
    ---------------------------------------------------------------------------
        We conducted the work on which this statement is based in
    accordance with generally accepted government auditing standards. Those
    standards require that we plan and perform the audit to obtain
    sufficient, appropriate evidence to provide a reasonable basis for our
    findings and conclusions based on our audit objectives. We believe that
    the evidence obtained provides a reasonable basis for our findings and
    conclusions based on our audit objectives.
    Background
        Federal agencies have varying roles in planning, approving, and
    implementing infrastructure projects, depending on their missions and
    authorities.\13\ Some Federal agencies help fund or construct
    infrastructure projects, and others grant permits or licenses for
    activities on private or Federal lands.\14\ Agencies that manage
    Federal lands, such as the Bureau of Land Management, may construct
    infrastructure on lands they manage and must also approve projects on
    those lands.
    ---------------------------------------------------------------------------
        \13\ Not all infrastructure projects have Federal involvement, and
    the extent of Federal involvement depends on the nature and type of
    project, as well as ownership of the land.
        \14\ For example, the Federal Highway Administration funds highway
    and bridge projects, and the Federal Emergency Management Agency helps
    fund recovery projects for infrastructure damaged by disasters.
    ---------------------------------------------------------------------------
        The circumstances under which Federal agencies may need to consult
    with tribes will vary based on the agencies' responsibilities for
    infrastructure projects as well as an infrastructure project's
    potential effects on tribes' land, treaty rights, or other resources or
    interests.
        Federal agencies are generally responsible for identifying relevant
    tribes that may be affected by proposed projects, notifying the tribes
    about the opportunity to consult, and then initiating consultation, as
    needed. One or more tribes located near or far from the proposed
    project site may have treaty rights within lands ceded in treaties or
    interests in lands with cultural or religious significance outside of
    lands ceded in treaties.\15\
    ---------------------------------------------------------------------------
        \15\ Treaties between the U.S. government and Indian tribes are the
    supreme law of the land. Treaties often described the boundaries of the
    tribe's land ceded to the Federal Government and the boundaries of the
    lands reserved for habitation by the tribe. Treaties also often
    discussed the tribe's rights reserved by the treaty, such as the right
    to hunt, fish, and gather on specified lands they ceded to the Federal
    Government. As a result of these treaties and other Federal actions,
    many tribes have ancestral lands they ceded to the Federal Government
    distant from where they are located today. These ancestral lands may
    include sites that have religious and cultural significance for the
    tribe.
    ---------------------------------------------------------------------------
        Additionally, the Federal Permitting Improvement Steering Council--
    which was created to make the process for Federal approval for certain
    (large) infrastructure projects more efficient--has issued two annual
    reports that identified best practices for, among other things,
    consulting with tribes.\16\ These best practices include: training
    staff on trust and treaty rights; providing clear information on
    proposals in a consistent and timely manner; holding consultations on
    lands convenient to tribes when possible; compensating tribes for
    consultant-like advice; and working to build strong, ongoing dialogue
    between tribal authorities and agency decision makers, among others. In
    2017, Executive Order 13807 directed agencies to implement the
    techniques and strategies identified by the steering council as best
    practices, as appropriate.\17\
    ---------------------------------------------------------------------------
        \16\ Federal Permitting Improvement Steering Council, Recommended
    Best Practices for Environmental Reviews and Authorizations for
    Infrastructure Projects (Washington, DC: Jan. 18, 2017); and
    Recommended Best Practices for Environmental Reviews and Authorizations
    for Infrastructure Projects for Fiscal Year 2018 (Washington, DC:
    December 2017). In our March 2019 report, we identified the members of
    the steering council as: the Advisory Council on Historic Preservation,
    Council on Environmental Quality, Department of Agriculture, Department
    of the Army, Department of Commerce, Department of Defense, Department
    of Energy, Department of Homeland Security, Department of Housing and
    Urban Development, Department of the Interior, Department of
    Transportation, Environmental Protection Agency, Federal Energy
    Regulatory Commission, General Services Administration, Nuclear
    Regulatory Commission, and Office of Management and Budget.
        \17\ Exec. Order 13807, Establishing Discipline and Accountability
    in the Environmental Review and Permitting Process for Infrastructure
    Projects, Sec. 4(b)(iii), 82 Fed. Reg. 40463, 40465 (Aug. 24, 2017).
    ---------------------------------------------------------------------------
        For purposes of this testimony, Native American cultural resources
    means Native American cultural items as defined by NAGPRA,\18\
    archaeological resources that are remains of past activities by Native
    Americans,\19\ and historic properties to which Indian tribes attach
    cultural or religious significance.\20\
    ---------------------------------------------------------------------------
        \18\ NAGPRA defines Native American cultural items to mean human
    remains, funerary objects, sacred objects, and objects of cultural
    patrimony. 25 U.S.C. Sec. 3001(3).
        \19\ Archaeological resources as defined by ARPA and its
    implementing regulations are any material remains of past human life or
    activities which are at least 100 years old and capable of providing
    scientific or humanistic understandings of past human behavior,
    cultural adaptation, and related topics through the application of
    scientific or scholarly techniques such as controlled observation,
    contextual measurement, controlled collection, analysis, interpretation
    and explanation. 16 U.S.C. Sec. 470bb(1); 43 C.F.R. Sec. 7.3(a).
        \20\ Historic properties are prehistoric or historic districts,
    sites, buildings, structures, or objects included in, or eligible for
    inclusion in, the National Register of Historic Places maintained by
    the Secretary of the Interior. 36 C.F.R. Sec. 800.16(l)(1).

    Examples of Federal Laws and Regulations That Apply to Native American
    ---------------------------------------------------------------------------
            Cultural Resources

    ARPA and NAGPRA

        ARPA, NAGPRA, and section 106 of the NHPA are examples of Federal
    laws that apply to Native American cultural resources. These laws and
    their implementing regulations contain many different provisions
    applicable to Native American cultural resources, including
    requirements for Federal agencies to consult with Indian tribes in
    certain circumstances.
        ARPA and NAGPRA, among other things, prohibit trafficking of
    certain archaeological resources and Native American cultural items,
    respectively. In August 2018, we reported on Federal laws that address
    the export, theft, and trafficking of Native American cultural items
    and any challenges in proving violations of these laws.\21\ That report
    included a discussion of ARPA and NAGPRA.
    ---------------------------------------------------------------------------
        \21\ GAO-18-537.
    ---------------------------------------------------------------------------
        In addition, we reported in August 2018 that ARPA and NAGPRA
    contain provisions prohibiting the removal of archaeological resources
    and Native American cultural items from certain lands unless certain
    conditions are met, including consultation with Indian tribes.\22\
    Specifically, ARPA prohibits, among other things, the excavation or
    removal of archaeological resources from public \23\ or Indian \24\
    lands without a permit from the Federal agency with management
    authority over the land.\25\ If the Federal agency determines that
    issuance of such a permit may result in harm to, or destruction of, any
    religious or cultural site, the agency must notify any Indian tribe
    which may consider the site as having religious or cultural importance
    and meet, upon request, with tribal officials to discuss their
    interests.\26\
    ---------------------------------------------------------------------------
        \22\ GAO-18-537.
        \23\ Public lands are lands owned and administered by the United
    States as part of the national park system, national wildlife refuge
    system or national forest system and all other lands the fee title to
    which is held by the United States except lands on the Outer
    Continental Shelf and lands under the jurisdiction of the Smithsonian
    Institution. 16 U.S.C. Sec. 470bb(3).
        \24\ Indian lands are lands of Indian tribes or Indians, which are
    either held in trust by the United States or subject to a restriction
    against alienation imposed by the United States, except for any
    subsurface interests in lands not owned or controlled by an Indian
    tribe or Indian. 16 U.S.C. Sec. 470bb(4).
        \25\ The regulations implementing ARPA specify that the Department
    of the Interior is the agency with management authority for Indian
    lands. 43 C.F.R. Sec. 7.3(c)(2). ARPA does not require Indian tribes
    and their members to have a Federal permit for excavation or removal of
    any archaeological resource on Indian lands of such tribe unless the
    tribe does not have a law regulating the excavation or removal of
    archaeological resources. 16 U.S.C. Sec. 470cc(g)(2).
        \26\ If the Federal agency determines that a permit must be issued
    immediately because of an immediate threat of loss or destruction of an
    archaeological resource, the Federal agency must notify the appropriate
    tribe. 43 C.F.R. Sec. 7.7(a)(4).
    ---------------------------------------------------------------------------
        NAGPRA prohibits the intentional removal from, or excavation of,
    Native American cultural items from Federal \27\ or tribal \28\ lands
    unless an ARPA permit has been issued and other requirements are met.
    Specifically, regulations implementing NAGPRA require Federal agency
    officials to take reasonable steps to determine whether a planned
    activity on Federal lands may result in the excavation of human remains
    or other cultural items. Officials are also required to consult with
    certain tribes, including any tribe on whose aboriginal lands the
    planned activity will occur, about the planned activity. After
    consultation, the Federal agency official must complete and follow a
    written plan of action that includes, among other things, the planned
    treatment, care, and disposition of human remains and other cultural
    items recovered.\29\
    ---------------------------------------------------------------------------
        \27\ Under NAGPRA, Federal land is any land other than tribal lands
    which are controlled or owned by the United States, including lands
    selected by but not yet conveyed to Alaska Native Corporations and
    groups organized pursuant to the Alaska Native Claims Settlement Act of
    1971. 25 U.S.C. Sec. 3001(5).
        \28\ Tribal land is all lands within the exterior boundaries of any
    Indian reservation, all dependent Indian communities, and any lands
    administered for the benefit of Native Hawaiians pursuant to the
    Hawaiian Homes Commission Act. 25 U.S.C. Sec. 3001(15).
        \29\ NAGPRA specifies who has ownership or control of Native
    American cultural items excavated from Federal or tribal lands after
    NAGPRA's enactment on November 16, 1990. 25 U.S.C. Sec. 3002(a).
    ---------------------------------------------------------------------------
        NAGPRA and its implementing regulations also include provisions
    regarding inadvertent discovery of Native American cultural items on
    Federal and tribal lands. Specifically, the person making the discovery
    must notify the responsible Federal agency or tribal official, stop any
    activity occurring in the area of the discovery, and make a reasonable
    effort to protect the human remains or other cultural item discovered.
    The NAGPRA regulations specify procedures for the agency and tribal
    officials to take after receiving a notification and when the activity
    that resulted in the inadvertent discovery can resume.
    Section 106 of the NHPA
        In March 2019, we reported that under section 106 of the NHPA and
    its implementing regulations, Federal agencies are required to consult
    with Indian tribes when agency ``undertakings'' may affect historic
    properties--including those to which tribes attach religious or
    cultural significance--prior to the approval of the expenditure of
    Federal funds or issuance of any licenses.\30\ The implementing
    regulations require agencies to consult with Indian tribes for
    undertakings that occur on or affect historic properties on tribal
    lands or may affect historic properties to which Indian tribes attach
    religious or cultural significance, regardless of where the historic
    properties are located.\31\ In addition, these regulations establish
    the following four-step review process for Federal agencies, with
    tribal consultation required for each step: (1) initiating the section
    106 process, (2) identifying historic properties, (3) assessing adverse
    effects, and (4) resolving adverse effects.\32\
    ---------------------------------------------------------------------------
        \30\ An undertaking is a project, activity, or program that is
    funded in whole or in part by a Federal agency and under the agency's
    direct or indirect jurisdiction, including those carried out by or on
    behalf of a Federal agency; those carried out with Federal financial
    assistance; and those requiring a Federal permit, license, or approval.
        \31\ Regulations implementing section 106 of the NHPA define
    consultation as the ``process of seeking, discussing, and considering
    the views of other participants, and, where feasible, seeking
    agreement.''
        \32\ For more information, see Advisory Council on Historic
    Preservation, Consultation with Indian Tribes in the Section 106 Review
    Process: A Handbook (Washington, DC: December 2012).
    ---------------------------------------------------------------------------
    Examples of Factors Tribes and Selected Agencies Identified That Impact
            the Effectiveness of Federal Agencies' Consultation Efforts

        As we found in March 2019, tribes and selected Federal agencies
    identified a number of factors that hinder effective consultation on
    infrastructure projects, based on our review of the comments submitted
    by 100 tribes to Federal agencies in 2016 on tribal consultation and
    our interviews with officials from 57 tribes and 21 Federal
    agencies.\33\
    ---------------------------------------------------------------------------
        \33\ See GAO-19-22 for additional information.

        Tribes identified a variety of factors that hinder effective
    consultation. For the purposes of this testimony, we are highlighting
    those factors that more than 60 percent of the 100 tribes identified as
    ---------------------------------------------------------------------------
    concerns. For example:

         Agencies' timing of consultation. Sixty-seven percent of
                tribes that provided comments to Federal agencies in 2016
                identified concerns with agencies initiating consultation
                late in project development stages; according to one tribal
                official we interviewed, late initiation of consultation
                limits opportunities for tribes to identify tribal
                resources near proposed project sites and influence project
                design.

         Agency consideration of tribal input. Agencies often do
                not adequately consider the tribal input they collect
                during tribal consultation when making decisions about
                proposed infrastructure projects, according to 62 percent
                of tribes that provided comments to Federal agencies in
                2016. Tribes' comments included perceptions that agencies
                consult to ``check a box'' for procedural requirements
                rather than to inform agency decisions.

         Agency respect for tribal sovereignty or the government-
                to-government relationship. Other concerns were related to
                agencies' level of respect for (1) tribal sovereignty or
                (2) the government-to-government relationship between the
                United States and federally recognized tribes, according to
                73 percent of tribes that provided comments to Federal
                agencies in 2016. Comments included concerns that some
                agency practices are inconsistent with this relationship.
                For example, tribes cited agencies limiting consultation to
                tribal participation in general public meetings and sending
                staff without decision-making authority to represent the
                U.S. government in consultation meetings.
         Agency accountability. Sixty-one percent of tribes that
                provided comments to Federal agencies in 2016 raised
                concerns related to the extent of agencies' accountability
                for tribal consultation, stating that some agencies or
                officials are not held accountable for consulting
                ineffectively or for not consulting with relevant tribes.
                For example, comments included concerns that tribes may not
                have appeal options short of litigation when they believe
                that Federal officials did not adhere to consultation
                requirements.

        In addition, officials from 21 Federal agencies included in our
    March 2019 report identified factors that they had experienced that
    limit effective consultation for infrastructure projects.\34\ For the
    purposes of this testimony, we are highlighting those factors that more
    than 60 percent of the 21 agencies identified as concerns. For example:
    ---------------------------------------------------------------------------
        \34\ The 21 agencies include 3 independent regulatory agencies, 3
    departments, and 15 component agencies that are offices or bureaus
    within other departments. We selected these agencies because they or
    their departments (1) are, in general, members of the Federal
    Permitting Improvement Steering Council and (2) consult with tribes on
    infrastructure projects. See GAO-19-22 for more information.

         Maintaining tribal contact information. Officials from 14
                of 21 agencies (67 percent) cited difficulties obtaining
                and maintaining accurate contact information for tribes,
                which is needed to notify tribes of consultation
                opportunities. For example, ongoing changes or turnover in
                tribal leadership make it difficult to maintain updated
                tribal information, according to some agency officials we
    ---------------------------------------------------------------------------
                interviewed.

         Agency resources to support consultation. Officials from
                13 of 21 agencies (62 percent) cited constraints on agency
                staff, financial resources, or both to support
                consultation. Officials from these agencies said that they
                have limited funding to support consultation activities,
                such as funding for their staff to travel to in-person
                consultation meetings for infrastructure projects.

         Agency workload. Officials from 13 of 21 agencies (62
                percent) identified a demanding workload for consultation
                as a constraint, because of large numbers of tribes
                involved in consultation for a single project, high volumes
                of consultations, or lengthy consultations, among other
                reasons. Officials from some of these agencies said that it
                may be difficult to stay on project schedules when there
                are multiple tribes to consult with or multiple agencies
                involved.

        In March 2019, we also found that the 21 agencies in our review had
    taken some steps to facilitate tribal consultation, but the extent to
    which these steps had been taken varied by agency.\35\ For example:
    ---------------------------------------------------------------------------
        \35\ GAO-19-22.

         Developing information systems to help contact affected
                tribes. Eighteen agencies developed systems to help notify
                tribes of consultation opportunities, which generally
                include contact information for tribal leaders or other
                tribal officials. Three of these agencies also included
                information on tribes' geographic areas of interest. For
                example, the Department of Housing and Urban Development
                developed a system that aims to identify over 500 tribes'
                geographic areas of interest and includes their contact
                information. The Federal Permitting Improvement Steering
                Council identified developing a central Federal database
                for tribal points of contact as a best practice.\36\ We
                recommended that the council should develop a plan to
                implement such a database and consider how it will involve
                tribes to help maintain the information, among other
                actions.
    ---------------------------------------------------------------------------
        \36\ See Federal Permitting Improvement Steering Council,
    Recommended Best Practices for Environmental Reviews and Authorizations
    for Infrastructure Projects for Fiscal Year 2018 (Washington, DC:
    December 2017).
    ---------------------------------------------------------------------------
         Developing policies to communicate how they considered
                tribal input. Five agencies' tribal consultation policies
                specify that agencies are to communicate with tribes on how
                tribal input was considered. For example, the Environmental
                Protection Agency's policy directs the most senior agency
                official involved in a consultation to send a formal,
                written communication to the tribe to explain how the
                agency considered tribal input in its final decision.\37\
                However, 16 agencies did not call for such communications
                in their policies. We recommended that these agencies
                update their tribal consultation policies to better
                communicate how tribal input was considered in agency
                decision making.\38\
    ---------------------------------------------------------------------------
        \37\ Representatives from one tribal organization we interviewed
    said that in one example, the agency had approved a permit for an
    injection well that the tribes had opposed during consultation, but
    agency officials explained their rationale for the decision to the
    affected tribes. As a result, tribal officials considered the
    consultation a success, even though they disagreed with the final
    decision.
        \38\ GAO-19-22. The 16 agencies generally agreed with this
    recommendation and one agency--the Federal Emergency Management
    Agency--has implemented it.

         Addressing capacity gaps through training. Most of the 21
                selected Federal agencies have taken steps to facilitate
                tribal consultation for infrastructure projects by
                providing a range of training opportunities for staff
                involved in tribal consultation to help build agency
                officials' knowledge of tribal consultation topics. For
                example, the U.S. Army Corps of Engineers coordinates an
                immersive, 4-day training, hosted by a tribe on the tribe's
                land or reservation for agency staff and other
                participating agency officials, which focuses on cultural
    ---------------------------------------------------------------------------
                competency important for tribal consultation.

         Utilizing various approaches to address resource
                constraints. Some of the selected Federal agencies used
                various approaches to help address resource constraints
                agencies and tribes may face when consulting on
                infrastructure projects, according to agency officials. For
                example, the Bureau of Land Management's policies state
                that the agency may use its appropriated funds and
                designated accounts to reimburse tribal members' travel
                expenses to attend meetings in connection with some
                consultations.\39\ The Nuclear Regulatory Commission
                collects fees from project applicants to cover agency costs
                related to consultation.\40\
    ---------------------------------------------------------------------------
        \39\ Bureau of Land Management, Bureau of Land Management Manual
    1780 Tribal Relations, (Washington, DC: Dec. 15, 2016) and BLM Handbook
    1780-1: Improving and Sustaining Bureau of Land Management--Tribal
    Relations (Washington, DC: Dec. 15, 2016).
        \40\ The Nuclear Regulatory Commission is required by statute to
    charge fees to anyone who receives a service or thing of value from the
    commission to cover the commission's costs in providing that service or
    thing. In addition, the commission is required to recover approximately
    90 percent of its annual budget authority through fees on licensees and
    certificate holders. 42 U.S.C. Sec. 2214.

        In conclusion, effective consultation is a key tenet of the
    government-to-government relationship the United States has with Indian
    tribes, which is based on tribal sovereignty. Failure to consult, or to
    consult effectively, sows mistrust; risks exposing the United States to
    costly litigation; and may result in irrevocable damage to Native
    American cultural resources. In our March 2019 report, we made
    recommendations to 17 agencies to take steps to improve their tribal
    consultation practices, which agencies generally agreed with and in one
    case, have implemented.\41\ However, sustained congressional attention
    to these issues and the relevant factors impacting the effectiveness of
    agencies' consultation efforts may help to minimize the negative
    impacts on tribes' cultural resources, when relevant Federal laws and
    regulations apply.
    ---------------------------------------------------------------------------
        \41\ In March 2019, we made one matter for congressional
    consideration and 22 specific recommendations to 17 of 21 agencies and
    a Federal steering committee for permitting decisions on actions they
    can take to improve tribal consultation. The 17 agencies to which we
    made recommendations generally agreed with them, and one agency, the
    Federal Emergency Management Agency, has implemented our
    recommendation. GAO-19-22.
    ---------------------------------------------------------------------------
        Chairman Gallego, Ranking Member Cook, and members of the
    Subcommittee, this completes my prepared statement. I would be pleased
    to respond to any questions that you may have at this time.

                                     ______

     Questions Submitted for the Record to Dr. Anna Maria Ortiz, Director,
       Natural Resources and Environment, U.S. Government Accountability
                                     Office
                   Questions Submitted by Representative Soto
        Question 1. What are the impacts of not properly involving all
    necessary stakeholders when making infrastructure project decisions?

        Answer. GAO's prior work has identified several impacts from not
    including all the necessary stakeholders in infrastructure project
    decisions. Specifically, it:

         Increases the likelihood of irrevocable harm to tribal
                resources. Not involving tribal stakeholders may increase
                the likelihood of irrevocable harm to irreplaceable tribal
                cultural resources impacted by the project, according to
                work performed for our March 2019 report on tribal
                consultation.\1\ For example, one tribe told us that Fish
                and Wildlife Service (FWS) officials did not consult the
                tribe when approving county roadwork within a National
                Wildlife refuge. A burial mound was unearthed and
                desecrated during construction, but FWS would not allow
                tribal members to access ancestors' remains for a month
                because of a criminal investigation--leaving them exposed
                to damage from the elements. Another tribe told us that a
                Department of Energy (DOE) laboratory did not consult the
                tribe for a tree-thinning project near important
                archaeological sites on the tribe's ancestral lands. DOE
                signed an agreement with the state to study the sites and
                mitigate impacts, but they did not include the tribe.
                Ultimately, the project partially destroyed five of the
                archaeological sites.
    ---------------------------------------------------------------------------
        \1\ GAO, Tribal Consultation: Additional Federal Actions Needed for
    Infrastructure Projects, GAO-19-22 (Washington, DC: Mar. 20, 2019).

         Undermines the unique trust relationship between Federal
                agencies and tribes. Effective consultation is a key tenet
                of the government-to-government relationships the United
                States has with tribes, based on tribal sovereignty.
                Failure to consult, or to consult effectively, sows
                mistrust in the United States government's relationships
                that Congress recently affirmed have benefited the country
                for centuries. For example, 73 percent of tribes that
                provided comments to Federal agencies in 2016 on
                consultation efforts identified concerns about agencies'
                level of respect for (1) tribal sovereignty or (2) the
                government-to-government relationship between the United
                States and federally recognized tribes.\2\
    ---------------------------------------------------------------------------
        \2\ GAO, Native American Issues: Examples of Certain Federal
    Requirements That Apply to Cultural Resources and Factors that Impact
    Tribal Consultation, GAO-20-466T (Washington, DC: Feb. 26, 2020).

         Can result in project delays or cancellation due to public
                opposition and litigation. Public opposition and litigation
                due to insufficient stakeholder involvement in decision
                making can lengthen project time frames and even lead to
                the cancellation of a project, according to our June 2012
                report on state and Federal practices for highway
                projects.\3\ For example, we reported that a lawsuit
                against the Federal Highway Administration (FHWA) and the
                U.S. Forest Service regarding their compliance with Federal
                laws for a highway project in Alaska delayed the project
                for at least 5 years. We also reported that the Elizabeth
                Brady Road project in Orange County, North Carolina, was
                canceled by FHWA due to public and local government
                opposition to the project.\4\
    ---------------------------------------------------------------------------
        \3\ GAO, Highway Projects: Some Federal and State Practices to
    Expedite Completion Show Promise, GAO-12-593 (Washington, DC: June 6,
    2012).
        \4\ In April 2014, we reported that although the number of National
    Environmental Policy Act lawsuits is relatively low, one lawsuit can
    affect numerous Federal decisions or actions in several states, having
    a far-reaching impact. See GAO, National Environmental Policy Act:
    Little Information Exists on NEPA Analyses, GAO-14-369 and GAO-14-370
    (Washington, DC: April 15, 2014).
    ---------------------------------------------------------------------------
        Conversely, we and others have highlighted the benefits of
    involving all necessary stakeholders in infrastructure project
    decisions--whether it is required by law or not.\5\ This includes
    tribal consultation when tribes' natural or cultural resources may be
    negatively impacted. Effective stakeholder involvement can help
    minimize damage to important tribal resources, limit infrastructure
    project delays, reduce the risk of litigation, and demonstrate agency
    respect for tribal sovereignty.
    ---------------------------------------------------------------------------
        \5\ For example, see GAO-19-22 and Federal Permitting Improvement
    Steering Council, Recommended Best Practices for Environmental Reviews
    and Authorizations for Infrastructure Projects for Fiscal Year 2018
    (Washington, DC: December 2017).

    ---------------------------------------------------------------------------
                                     ______

        Mr. Gallego. Thank you.
        Now I welcome Mr. Cameron for his testimony.

        STATEMENT OF SCOTT CAMERON, PRINCIPAL DEPUTY ASSISTANT
     SECRETARY FOR POLICY, MANAGEMENT, AND BUDGET, U.S. DEPARTMENT
                    OF THE INTERIOR, WASHINGTON, DC

        Mr. Cameron. Chairman Gallego, Chairman Grijalva, Ranking
    Member Gosar and members of the Subcommittee, thank you for the
    opportunity to appear before you today to discuss the
    Administration's coordination and construction of barriers to
    address security and the humanitarian crisis at our Nation's
    southern border.
        My name is Scott Cameron. I am the Principal Deputy
    Assistant Secretary for Policy, Management, and Budget at the
    Department of the Interior. The southern border is a major
    entry point for criminals, gang members, and illicit narcotics.
    Along this border, cultural resources, wilderness areas,
    wildlife refuges, plants and animals are adversely impacted by
    land degradation and destruction from unauthorized vehicles,
    trash, fires, contaminated water, and other activities related
    to unlawful border activity.
        The Department manages lands that cover 40 percent of the
    southern border. The impacts of illegal activity along the
    border are evident on all of these lands. At Organ Pipe
    National Monument, for example, in the last 3 years alone,
    National Park Service rangers have arrested 71 people,
    apprehended more than 1,200 illegal aliens, and intercepted
    7,500 pounds of marijuana. People die trying to cross the
    border illegally here.
        Since 2010, the remains have been found of almost 200
    individuals suspected to have died attempting to cross the
    border illegally. Unfortunately, as it was mentioned earlier,
    at least one American, a National Park Service Ranger, Kris
    Eggle, has been murdered by criminals crossing the border.
    Without an effective barrier, there will be more deaths and
    more movement of drugs that ruin lives at a distance.
        Through implementation of President Trump's directives, the
    Department has made it a priority to work closely with the
    Department of Homeland Security, U.S. Customs and Border
    Protection, and the Department of Defense, among other
    agencies, to protect the wildlife, natural, and cultural
    resources that occur on Federal lands along the border. Our
    work with these agencies enhances the safety of those that
    live, work, and recreate in the region.
        At Organ Pipe, CBP has worked collaboratively with over 100
    local stakeholders, including Federal, state, and local
    government agencies and, of course, tribes. The National Park
    Service worked collaboratively with CBP during preconstruction
    planning processes to identify known archaeological sites and
    has worked to protect them. NPS has also recommended, and CBP
    has agreed, to having an archaeological monitor on site during
    construction activities with the authority, incidentally, to
    stop work as necessary to minimize loss of or damage to
    archaeological sites. As an example of this collaboration, NPS,
    in coordination with CBP, identified Quitobaquito Springs as a
    significant resource area.
        In order to protect the hydrology, wildlife, and cultural
    resources of this area, NPS established an agreement with the
    U.S. Geological Survey to provide real-time monitoring for
    Quitobaquito, notably, taking into consideration the concerns
    expressed by the tribes who requested a 5-mile buffer for any
    wells from Quitobaquito.
        CBP and the Army Corps of Engineers, therefore, placed the
    closest wells for this project 8 miles east and 7 miles west,
    with the latter being a pre-existing refurbished well to ensure
    protection of the water resources at Quitobaquito. In early
    October, NPS archaeologists discovered several bone fragments
    during an archaeological survey close to Quitobaquito Springs
    near the southwestern corner of the monument, but north of the
    Roosevelt Reservation Area, so outside of the project area.
        An osteologist viewed the fragments and determined one was
    human but many were not. Discussions with the Tohono O'odham
    Nation were initiated on October 24, 2019, regarding this
    discovery. In November, NPS crews identified three additional
    bone fragments during a data recovery project that consisted of
    the surface collection of artifacts, the same area, this time,
    within the Roosevelt Reservation and within the project area.
        An osteologist determined that these bone fragments
    consisted of animal remains and a rock. But during a subsequent
    site visit to the same area, two additional remains were found
    also within the reservation area. These remains could not be
    identified by the field archaeologist, but both were later
    confirmed as human.
        Along the southern border, the Department will continue to
    support interdepartmental partnerships. We will also continue
    our engagement with affected tribes. We are trying to work
    closely with the tribes. And when we find any artifacts or any
    human remains, we engage in a process to return those to the
    tribe. Thank you, Mr. Chairman, for letting me run over, and I
    apologize for that.

        [The prepared statement of Mr. Cameron follows:]
      Prepared Statement of Scott J. Cameron, Principal Deputy Assistant
     Secretary for Policy, Management and Budget, 1U.S. Department of the
                                    Interior
        Chairman Gallego, Ranking Member Cook, and members of the
    Subcommittee, thank you for inviting me to appear before you today to
    discuss the Administration's coordination in construction of barriers
    to address security and the humanitarian crisis at our Nation's
    southern border. My name is Scott J. Cameron and I am the Principal
    Deputy Assistant Secretary for Policy, Management and Budget at the
    Department of the Interior (Department).
                                  introduction
        The current situation at the southern border presents a security
    and humanitarian crisis that threatens core national security interests
    and constitutes a national emergency. The southern border is a major
    entry point for criminals, gang members, and illicit narcotics. Along
    this border, cultural resources, wilderness areas, wildlife refuges,
    plants and animals are adversely impacted by land degradation and
    destruction from trails, trash, fires and other activities related to
    unlawful border crossings.
        The Department manages lands that cover 40 percent of the southern
    border, including national parks, wildlife refuges, historic sites,
    public lands, and wilderness areas along with infrastructure including
    water delivery structures. The impacts of this crisis are evident on
    all of these lands. At Organ Pipe Cactus National Monument, for
    example, in the last 3 years alone, National Park Service (NPS) rangers
    have arrested 71 people, apprehended 1,231 illegal aliens, and
    intercepted 7,563 pounds of marijuana. This with an average of only 10
    full-time rangers. Since 2010, NPS staff have recovered the remains of
    184 individuals.
        The problem of large-scale unlawful migration through the southern
    border is long-standing and has worsened in certain respects in recent
    years. The impacts of this crisis are vast and must be aggressively
    addressed with extraordinary measures.
        Under President Trump's leadership, the Federal Government is not
    only tackling the national security and humanitarian crisis, but also
    addressing the environmental crisis impacting the character of the
    lands and resources under the Federal Government's care. Construction
    of border barriers will reduce or eliminate impacts from illegal entry
    and will help us maintain the character of these lands and resources
    under the Department's management that may otherwise be lost.
                            interagency cooperation
        Secretary Bernhardt has ensured that the Department supports
    stronger interagency and inter-departmental relationships to address
    risk management efforts along the southern border. Through
    implementation of President Trump's directives, the Department has made
    it a priority to work closely with the Department of Homeland Security
    (DHS), the U.S. Customs and Border Protection (CBP) and the Department
    of Defense, among other agencies, to protect the wildlife, natural, and
    cultural resources that occur on Federal lands along the border. Our
    work with these agencies provides the necessary tools to enhance the
    safety of those that live, work and recreate in this region. Through
    this collaboration, the Department maximizes safety and stewardship,
    benefiting all Americans in response to this crisis.
        At the Department, interdisciplinary experts coordinate with DHS,
    CBP, and Army Corps of Engineers to fully engage in the planning,
    construction and maintenance phases for barrier and infrastructure
    projects. For these projects, the Department also coordinates
    interagency and interdisciplinary review and consensus-based
    adjustments among Bureau of Land Management, Bureau of Reclamation, the
    U.S. Fish and Wildlife Service (FWS), the NPS, the Bureau of Indian
    Affairs, Tribes, and the U.S. International Boundary and Water
    Commission as appropriate. Coordination efforts often include site
    visits and strategic planning meetings to better clarify agency
    priorities, address complex natural resource issues and efficiently
    resolve challenges as they arise to the best of our abilities. On a
    regular basis, challenges are addressed at the local level. This
    includes recognizing and protecting cultural resources, protecting
    water sources, maintaining wildlife corridors and wilderness areas, and
    relocating sensitive plants that may be affected by construction
    activities. Last year, the Department worked with DHS and CBP to
    support barrier construction along 305 miles of the southern border
    adjacent to 244 miles of public lands.
                              tribal consultation
        In addition to the Department's responsibilities for ensuring
    coordination and resource conservation, the Department conducts tribal
    consultation for actions initiated by the Department's bureaus and
    offices that have tribal implications.
        In accordance with law and policy, all Federal agencies have
    accountable consultation policies. The Department's Tribal Consultation
    Policy is in the Departmental Manual (DM) at 512 DM 4, Policy on
    Consultation with Indian Tribes, and 512 DM 5, Procedures for
    Consultation with Indian Tribes. The DM provides that the Department
    will consult with Tribes whenever its ``plans or actions have tribal
    implications.''
        The Department remains committed to meaningfully consulting with
    Tribes on a government-to-government basis with regard to each plan and
    action the Department takes that has Tribal implications. Since the
    beginning of the Trump administration in January 2017, the Department
    has hosted almost 90 formal consultation sessions on 17 topics. In the
    spirit of ongoing dialogue, the Department has also held over 30
    informal listening sessions with Tribes for their input on actions
    taken by the Department.
      dhs border wall construction at organ pipe cactus national monument
        At Organ Pipe Cactus National Monument, CBP has worked
    collaboratively with local stakeholders in the construction of the Pima
    and Cochise Counties Border Infrastructure Project through the
    Monument. Stakeholders include over 100 entities, including Federal,
    state and local government agencies and tribes, among others.
        NPS worked collaboratively with CBP on siting and wall alignments
    to identify known archeological sites, ethnographic resources, and
    areas with a high potential for intact cultural resources. NPS also
    recommended using an archaeological monitor during construction
    activities to minimize loss of or damage to archaeological sites.
        The NPS also worked with CBP to identify sensitive plant species
    within the construction zone to salvage plants, when practicable. FWS
    similarly worked with CBP to discuss ways to avoid impacts to federally
    listed species' habitat, migration movements, and ability to travel and
    breed between Mexico and the United States (such as the endangered
    jaguar).
        As an example of this collaboration, NPS, in coordination with CBP,
    identified Quitobaquito Springs as a significant resource area. In
    order to protect the hydrology, wildlife, and cultural resources of
    this area, NPS established an agreement with the United States
    Geological Survey to provide real-time monitoring and alarm for the
    Quitobaquito spring hydrological system. This allows the NPS to work
    directly with DHS, CBP and the Army Corps of Engineers to address any
    reduction in water output. Notably, taking into consideration the
    concerns expressed by the Tribes, who requested a 5-mile buffer from
    Quitobaquito Springs, CBP and the Army Corps of Engineers placed the
    closest wells used for this project 8 miles east and 7 miles west (with
    the latter being a pre-existing, refurbished well) of the Springs, to
    ensure protection of this resource.
                 action taken by the department of the interior
        In the process of working with CBP on completing the border
    infrastructure process, the Department has honored its responsibility
    to consult with affected tribes on Departmental actions, although
    certain laws related to cultural resources have been waived for the
    purposes of this project. When the NPS discovered several bone
    fragments during archaeological surveys close to Quitobaquito Springs,
    the NPS voluntarily engaged in processes drawn from NAGPRA to mitigate
    or avoid potential impacts from the project.
        In mid-September, NPS archaeologists discovered several bone
    fragments during an archaeological survey close to Quitobaquito Springs
    near the southwestern corner of the monument just north of the
    Roosevelt Reservation and outside of the project area. An osteologist
    reviewed the fragments on October 4, and determined one was human.
    Consultation with the Tohono O'odham Nation was initiated on October
    24, 2019, regarding this discovery.
        In late November, NPS archaeological crews identified three
    additional bone fragments during a data recovery project that consisted
    of the surface collection of artifacts near the same area, this time
    within the Roosevelt Reservation and within the project area. Based on
    the archaeologist's assessment, two of the fragments were more
    consistent with animal remains, while the third showed qualities of
    being human. NPS informed the tribe that they will treat all three
    remains as if they are human remains.
        The NPS is currently working to repatriate the bone fragments to
    the Tohono O'odham Nation following the process of the NAGPRA.
        NPS and CBP met with the Tribe on December 11, 2019 at the Organ
    Pipe Cactus National Monument. And most recently, on January 16, 2020,
    Departmental employees including cultural staff of the Fish and
    Wildlife Service, the Cabeza Prieta National Wildlife Refuge Manager,
    the Superintendent of the Organ Pipe Cactus National Monument, Chief
    Ranger, and Chief of Natural and Cultural Resources met with the Tohono
    O'odham Nation Chairman and other representatives, along with
    Congressman Raul Grijalva. This meeting of Departmental employees with
    the Tribe resulted in a tour of the border area, and allowed the Tribe
    to inform FWS and NPS employees about concerns regarding CBP actions to
    secure the border.
                                   conclusion
        Along the southern border, the Department will continue to support
    inter-departmental partnerships. These efforts provide for effective
    collaboration and establish an avenue for the Department's land
    management interests to be considered in ongoing organizational border
    security efforts with DHS and the Army Corps of Engineers.
        Chairman Gallego, Ranking Member Cook, and members of the
    Subcommittee, thank you for the opportunity to testify. I am glad to
    answer any questions you may have.

                                     ______

      Questions Submitted for the Record to Mr. Scott Cameron, Principal
      Deputy Assistant Secretary for Policy, Management, and Budget, U.S.
                           Department of the Interior

    Mr. Cameron did not submit responses to the Committee by the
    appropriate deadline for inclusion in the printed record.

                 Questions Submitted by Representative Grijalva
        Question 1. In your testimony, you mention that the Department of
    the Interior (DOI) has strong interagency and inter-department
    relationships. For this situation, an inter-agency relationship would
    include working with the Department of Homeland Security (DHS).

        1a. Please provide the dates, and related documents, which
    demonstrate that Secretary Bernhardt has met with the Acting Secretary
    of Homeland Security, Chad Wolf, regarding the construction of the
    border wall.

        Question 2. During my tour of the border, the Tohono O'odham
    Nation's archeologist attempted to interact with the contractor that
    DHS had hired as its arborist. The tribal archeologist tried to ask the
    arborist about DHS' criteria for the removal of saguaro cacti, as the
    Nation has found DHS' internal policies for the removal and replanting
    of saguaro cacti to be very inconsistent in the past.

        2a. Rather than providing an answer, the DHS arborist said that he
    could not talk to the Nation because he was under an order to not speak
    with tribal officials or representatives. Are you aware of this ``gag
    order'' that prevents DHS contractors from speaking to tribal
    representatives?

        2b. What is DOI's internal policy regarding the agency's
    interactions with tribal officials and representatives?

        2c. How, if at all, does DOI provide input in DHS' internal
    policies about agency interactions with tribal officials and tribal
    representatives?

                 Questions Submitted by Representative Gallego
        Question 1. In December 2019, U.S. Customs and Border Protection
    and the National Park Service conducted a meeting with the Tohono
    O'odham Nation to discuss construction activities on the sites of
    Monument Hill and Quitobaquito Springs.

        1a. Please provide a record of communications and meetings between
    U.S. Customs and Border Protection; and the National Park Service (NPS)
    with the Tohono O'odham Nation regarding the border wall's construction
    activities within Organ Pipe National Monument, including the
    activities on Monument Hill and Quitobaquito Springs.

                 Questions Submitted by Representative Haaland
        Question 1. You mention in your testimony that the Department will
    strive to ``provide effective collaboration and establish an avenue for
    the Department's land management interests to be considered in ongoing
    border security efforts with DHS and the Army Corps of Engineers.''

        1a. By land management interests, do you mean national monuments
    and Federal lands held in trust for tribal nations?

        1b. What are the legal implications of waiving pertinent Federal
    laws to build on tribal trust land? In what ways would these
    implications affect Indian Country in the future?
                                     ______

        Mr. Gallego. Thank you to our witnesses for your testimony.
    We will now be moving on to the questions portion of it, and I
    will recognize myself for the first 5 minutes.
        Mr. Cameron, the Department of the Interior, along with
    other Federal agencies, is charged with upholding our trust
    responsibility to Native American tribes. Mr. Cameron, what
    does that responsibility entail?
        Mr. Cameron. There are a number of statutes, Mr. Chairman,
    as I know you are very much aware, that relate to the
    relationship between the tribes and the Federal Government. It
    fundamentally involves, I think, a communication, conversation,
    the Federal Government trying to understand what the concerns
    are of the tribes and the Federal Government figuring out, in
    light of that information, what is an appropriate course of
    action.
        Mr. Gallego. Mr. Cameron, to be more specific, is it the
    position of the Department of the Interior that protecting
    tribal sacred sites and cultural and historical artifacts is
    part of that responsibility, both on tribal and non-tribal
    land?
        Mr. Cameron. Yes, sir. As a general principal, I think that
    is true. I think it is less clear in terms of off tribal lands
    than it may be in terms of on Federal lands or certainly on an
    Indian reservation. But as a general principle, I think the
    Federal Government is responsible for working with the tribes
    to be concerned about their cultural heritage and helping them
    conserve that.
        Mr. Gallego. OK. In light of the evidence you have heard
    today, evidence showing the destruction of multiple sites,
    including burial sites that are sacred to Native people, how is
    it possible for you to argue that this activity is not a
    violation of that trust responsibility, then?
        Mr. Cameron. Mr. Chairman, I am not familiar with all
    activity going on across the entire border. I am aware of the
    fact that the Congress provided authority to the Federal
    Government.
        Mr. Gallego. Just specific to what you heard today and from
    the testimony of other witnesses is what I am referring to, not
    the grander border area.
        Mr. Cameron. Yes, sir. The way I would respond to that is
    that the National Park Service and, indeed, all of our bureaus,
    when in the conduct of any of our activities, we discover
    cultural resources or human remains, most certainly, we go
    through a process with the tribes to try to repatriate, if you
    will, those resources if they are interested in doing that.
        Mr. Gallego. Moving on, then, on the first panel, Chairman
    Norris discussed the fact that CBP expedited its construction
    on several sacred sites, including Monument Hill, after
    Chairman Grijalva visited and pointed out these places.
        Given your department's close working relationship with
    CBP, can you provide a concrete explanation to why the timeline
    and construction on these sites was moved up? Can you confirm
    the Department intended to pre-empt any opposition to the
    destruction of these places?
        Mr. Cameron. Mr. Chairman, I am unaware of what particular
    stretches of ground DHS was planning construction on. What I
    can tell you is none of the human remains that have been found
    were found from Monument Hill if that is at all helpful.
        Mr. Gallego. When was the last time you had consultation
    with DHS regarding this construction?
        Mr. Cameron. The Department has conversations almost on a
    daily basis with DHS in terms of our activities along the
    entire southern border.
        Mr. Gallego. And what was the last time there was
    coordinated meetings with the Tohono O'odham Nation or other
    tribes regarding the sacred sites?
        Mr. Cameron. Let's see. According to my records, most of
    the activity, certainly the most recent one that I am aware of
    was in December 2019 when CBP, the Park Service, conducted a
    meeting with the members of Tohono O'odham to discuss
    construction activities at Monument Hill and Quitobaquito. That
    is the last one I am aware of. There may have been ones
    subsequent, Mr. Chairman.
        Mr. Gallego. So, when Chairman Norris received, I think it
    is an e-mail or text that they are about to start blasting,
    when would that occur?
        Mr. Cameron. I don't know, sir.
        Mr. Gallego. Were you made aware prior to Chairman Norris
    getting that notification that they are about to start
    blasting?
        Mr. Cameron. I certainly was not. There is a possibility
    other folks at the Department may have been but I was not, no.
        Mr. Gallego. You can see how that isn't, according to what
    I believe the Tohono O'odham Nation sees and I think what many
    of us see, that that does not show a certain level of respect
    or tribal consultation or coordination when one of our trusted
    leaders and community leaders and tribal leaders is getting an
    e-mail about blasting to start.
        Last, I would like to make sure that we get a record of all
    the communications and meetings between CBP and Department of
    the Interior regarding the project and I yield back my time.
        Dr. Gosar. Mr. Cameron, in your testimony, you state, and I
    quote, ``cultural resources, wilderness areas, wildlife
    refuges, plant, and animals are adversely impacted by land
    degradation and destruction from trails, trash, fires and other
    activities related to the unlawful border crossings.'' Did you
    make that statement?
        Mr. Cameron. Yes, sir, I certainly did.
        Dr. Gosar. Now, you add in, ``Construction of border
    barriers will reduce or eliminate impacts from illegal entry
    and will help maintain the character of these lands and
    resources.'' Do you have things that back that up? I mean, do
    we see where a current fence is? We see a better area of
    vegetation?
        Mr. Cameron. Well, sir, I think it is very clear that if
    you don't have illegal vehicles driving willy nilly over an
    area, you are less likely to have destruction of archaeological
    resources, you are less likely to be running over endangered
    desert tortoises, you are less likely to be inflicting all
    sorts of damage on the land and the resources associated with
    it. And by creating a wall, if you are limiting the traffic,
    then those resources are easier to restore and less likely to
    be damaged, not to mention the fact that you won't have people
    trying to cross that area and end up dying as has happened.
        Dr. Gosar. In implementing this mandate, you outline legal
    requirements placed on the agencies that, despite the waiver
    authority being in place, must be carried out. You cover an
    extensive list of resource protection actions and stakeholder
    consultations performed by the Federal Government. Specific to
    border infrastructure in Organ Pipe Cactus National Monument,
    you cite consultation with over 100 entities, including
    Federal, state and local government agencies and tribes, among
    others.
        You stated these actions and requirements have resulted in
    siting and wall alignments to identifying known archaeological
    sites, ethnographic resources and areas with a high potential
    for intact cultural resources, identifying sensitive plant
    species and avoiding impacts to federally listed species
    habitat, real-time monitoring and alarm for Quitobaquito
    Springs hydrology system to ensure the protection of the
    resource. Mr. Cameron, my question to you, does the government
    of Mexico offer monitors to ensure the drug cartels or unlawful
    immigrants avoid these archaeological sites?
        Mr. Cameron. Sir, to the best of my knowledge, they do not.
        Dr. Gosar. As a followup, to your knowledge, do the drug
    cartels or unlawful migrants offer mitigation strategies to
    reduce their impacts on the cultural sites and environment?
        Mr. Cameron. I think it is fair to say, Mr. Gosar, that the
    drug cartels and other illegal people doing things on the
    border are oblivious to or don't care about our Endangered
    Species Act or NEPA, for that matter.
        Dr. Gosar. Do you know if they consult the tribes or other
    impacted stakeholders?
        Mr. Cameron. I would be really surprised if they did, Mr.
    Gosar.
        Dr. Gosar. Is there evidence that the border wall will
    impact listed species such as the Sonoran Pronghorn?
        Mr. Cameron. There is the possibility. What I would also
    point out is the Department, for a number of years, has
    undertaken mitigation activities to try to protect fish and
    wildlife populations in the border area and more generally. And
    I know there have been some efforts undertaken to help restore
    populations of Sonoran Pronghorn.
        Dr. Gosar. But in a wide-open aspect of which is frequently
    frequented by drug smugglers and cartel members, it seems to me
    like they would be very problematic to those species
    recoveries.
        Mr. Cameron. In fact, Mr. Gosar, if I were a drug smuggler
    with a gun and I was hungry, I would be tempted to shoot a
    desert pronghorn and have it for dinner.
        Dr. Gosar. Kind of what I was thinking. The border wall
    that currently exists there, we were just there last week--I
    mean, there is a barrier, the cross brace that is on the ground
    like the Normandy cross and stuff. Has that really mitigated
    and helped the area?
        Mr. Cameron. I don't have specific information on that. I
    think it is really clear that a low barrier or vehicle barrier
    is not nearly as effective as the sort of barrier that CBP is
    installing along the border at this point. Clearly, the
    existing barriers have not stopped illegal movement of people.
    They have not stopped drug trafficking.
        Dr. Gosar. I agree. But they stopped a lot of traffic. We
    have heard over a thousand different violations with vehicles
    who were actually stopped by putting the Normandy barrier but--
    --
        Mr. Cameron. Yes, sir. I think that is successful. They
    have also seen, as you have illustrated with some of the
    photographs we have shown earlier, there are abandoned vehicles
    perhaps just south of those barriers that are causing issues.
        Mr. Gallego. Thank you, Ranking Member. I now recognize
    Representative Haaland.
        Ms. Haaland. Thank you, Chairman. My first question will go
    to Dr. Ortiz. Those of us in Indian Country know that when
    Federal agencies fail or refuse to engage in tribal
    consultation on a project, mistrust can result. My first
    question is how do you see the relationship with the Interior
    and Tribal Nations developing under the current Administration
    after everything that has happened. And is the current
    situation at the border reversible?
        Dr. Ortiz. GAO has not done work specifically looking at
    that relationship. We do know that on occasions, like we have
    seen over the past couple of months, when consultations or
    other requirements are waived, it further exacerbates mistrust
    that may have already existed, and it really risks irreparable
    harm to sites.
        Sometimes these sacred sites and cultural resources could
    have been preserved with very modest adjustments. And GAO's
    research suggests that even outside the realm of formal
    consultation, developing a good ongoing relationship with
    tribal and local stakeholders will help you figure out ways to
    construct infrastructure with the minimal potential harm.
        Ms. Haaland. I understand. And when all of this occurs,
    what does the GAO recommend the Federal Government do to regain
    tribal trust?
        Dr. Ortiz. GAO recommends improvements to tribal
    consultation practices, specifically such as we have
    recommended to 15 agencies that they should tell tribes how
    their input was weighed. We are also recommending improvements
    to the Federal Permitting Improvement Steering Counsel in terms
    of centralizing information so that tribes can be consulted in
    a more timely fashion and that there is better coverage to
    recognize which tribes are concerned with the geographic area
    even if they don't live there.
        Ms. Haaland. Right, that is better than a text a few hours
    before the incident happens, I guess. Thank you, Dr. Ortiz.
        Mr. Cameron, with respect to your testimony regarding--and
    my colleague, Mr. Gosar, brought this up--the cultural
    resources, plants, animals, being adversely impacted from the
    various negative impacts, including trash and people driving
    through there, can trash be cleaned up?
        Mr. Cameron. Sorry.
        Ms. Haaland. I mean, it is a yes or no. Can trash be
    cleaned up?
        Mr. Cameron. Yes.
        Ms. Haaland. OK, good. But a sacred site that has been
    blasted, it can never be made whole again. I want you to
    understand that. And you know why? Because ancestors put those
    things in the ground with care and love and tradition and
    prayers. Those can never be regained again. And I want you to
    understand that you can't equate sacred sites and burial
    grounds with trash. You can't equate that with people walking
    through the desert or leaving their abandoned trucks there.
    That pales in comparison to what these ancestors of these
    people have done. They put those things there for a purpose,
    because they knew that, in the future, we would rely on that
    knowledge and knowing that those ancestors are there.
        I don't expect you to understand that, but I am trying to
    impart a little information on you so that you understand how
    they feel about this and why they cry when they see that place
    being blasted apart. You can't equate that with trash and with,
    oh, somebody--they burned up this tree or they--the damage that
    this Administration is doing to this area is irreparable. It is
    irreparable, and you didn't even ask. Nobody asked permission
    of these people to do any of that.
        It is shameful and it is immoral. Like I said during the
    last panel, this--we are having this hearing because we care
    deeply about what is happening with this land. But it is all
    over. It is happening all over the country with this
    Administration. And that is why I will say again I don't know
    how any of you sleep at night. Chairman, I yield.
        Mr. Gallego. Thank you, Representative Haaland. I now
    recognize Representative Garcia.
        Mr. Garcia. Thank you, Mr. Chairman, and to the two members
    of the panel. Before I make my remarks, I just have to preface
    this by saying that, for all of the talk of protecting
    religious freedom, I can't believe what the Administration and
    its representatives here are telling us and the exchange that
    is taking place and how sacrilegious it really is.
        Since taking office, Donald Trump has relentlessly tried to
    fund construction of an ineffective wall at the cost of
    taxpayers, the environment, and Indigenous peoples, as we see
    today, all while helping his friends make profits at the
    expense of our communities, such as in waiving the procurement
    process. It is beyond egregious and repugnant to think that
    this Administration, one that pushes for religious freedoms, is
    also violating the sanctity of the ancestral lands of
    Indigenous people in our country.
        The Administration continues to bypass environmental
    regulations and other laws in its efforts to construct a border
    wall. But it will not go unchecked, not while Democrats control
    the House. Dr. Ortiz, in what ways is it within the purview of
    the Federal Government to actively engage in tribal
    consultation, and why is that consultation important?
        Dr. Ortiz. Tribal consultation is a critical way in which
    we demonstrate the Federal respect for tribal sovereignty and
    the government-to-government relationship we have with tribes.
    When we act to protect archaeological, historical, cultural,
    natural resources that are of importance to Native Americans,
    we are acting consistent with the Federal trust responsibility.
        Mr. Garcia. Can you elaborate on the current barriers that
    hinder effective consultation with the tribes?
        Dr. Ortiz. There are several current barriers. And among
    those that came out most frequently in GAO's review were those
    dealing with the timeliness of notification and the adequacy of
    notification, whether or not a tribe that had ancestral or
    treaty rights in an area was actually notified. We have also
    noted there have been problems with whether or not agencies
    genuinely weigh tribal input. I think, as one Representative
    said earlier today, going through the motion of compliance
    rather than actually weighing input and acting with the respect
    that a government-to-government relationship merits.
        Mr. Garcia. Thank you. Mr. Cameron, do you feel that your
    agency has done an adequate job in consulting with the tribes?
        Mr. Cameron. Yes. Congressman, as a general principle, I
    know Assistant Secretary Sweeney has been involved in numerous
    tribal consultations around the country. In the particular
    instance we are talking about today, the Congress passed a
    statute that provides for an expedited process for construction
    of a border wall. And the Administration has chosen to exercise
    the authority that the Congress gave.
        Mr. Garcia. Is the consultation adequate?
        Mr. Cameron. Adequacy----
        Mr. Garcia. Your opinion.
        Mr. Cameron. Adequacy, I think, is probably in the eye of
    the beholder, Congressman. What I can tell you----
        Mr. Garcia. OK. Thank you. In your testimony, you note that
    the agency has conducted 90 formal consultation sessions on 17
    topics and 30 informal listening sessions with tribes. What is
    the difference between a formal consultation and an informal
    listening session?
        Mr. Cameron. I am afraid I am out of my legal depth to give
    you a precise answer. I am happy to do that for the record.
        Mr. Garcia. OK. Do you consider e-mails a form of
    consultation?
        Mr. Cameron. I consider e-mails a form of communication.
        Mr. Garcia. Are they consultation?
        Mr. Cameron. All I can tell you is that the Department and
    CBP have taken steps to communicate regularly with the affected
    tribes, in terms of activity on the border, and we have made a
    good-faith effort to understand the tribes' concerns and to try
    to address them.
        Mr. Garcia. Regardless of what you say, this Administration
    is bulldozing through and desecrating sacred sites with little
    to no consultation with the tribes. Thank you, Mr. Chairman. I
    yield back.
        Mr. Gallego. Thank you. I now recognize Chairman Grijalva.
        Mr. Grijalva. Mr. Cameron, when Interior effectively lost
    control of the public lands back in 2005 with the REAL ID Act
    and we ceded that responsibility to Homeland Security, much of
    the decision making that occurs around issues such as sacred
    sites, consultation, has been ceded to another agency. And you
    mentioned in your testimony how strong interagency cooperation
    and meetings occur.
        Let me ask you about one topic, if there was any
    discussion. The decision and the change, the administrative
    change to expedite and waive the procurement process so that
    the wall could be built more rapidly and the firms that came
    on, did Interior have any role in assessing whether they
    understood what a relationship with a tribal nation might be,
    that they understood what a sacred site might be, a burial
    site, a ceremonial site? Did you have any input into assessing
    that construction company's ability to work in the Southwest,
    to work adjacent to Indian land, and to be able to do that and
    still be respectful of the historic, cultural, and human issues
    that are involved with that? Did you have any input in that?
        Mr. Cameron. Mr. Chairman, what I can tell you is that
    Interior and CBP talked on a regular basis. There were
    archaeological surveys that the Park Service did.
        Mr. Grijalva. I am talking about the firms that got hired.
        Mr. Cameron. I am not aware of specific details in terms of
    briefings with the individual contractors. But I would be happy
    to try to find that information for the record, Mr. Chairman,
    if you would like.
        Mr. Grijalva. Yes, I think that would be important, or we
    can request it ourselves. But the other issue, Mr. Cameron,
    that I think is important, and it goes to the issue of
    consultation which separates what we are talking about here
    from the other issues that are going on relative to the wall.
    That trust responsibility is embedded in the work of Congress
    and in the Constitution. And, as such, I think it has pre-
    eminence in many of the discussions that we are having.
        And something as important, as enshrined as trust
    responsibility and nation-to-nation consultation gets routinely
    waived, ignored. Don't you think that creates a fundamental
    problem? You keep saying we have the right based on 2005 that
    we can waive whatever we want. Fine. But in terms of the
    Interior and its role and its jurisdiction and its relationship
    with Indian Country, don't you think you can't be that cavalier
    about that situation?
        Mr. Cameron. Mr. Chairman, I would suggest that Interior is
    not being cavalier at all. Interior is having conversations all
    the time with the Tohono O'odham Tribe and, not to mention,
    other tribes in the Southwest. We take our trust responsibility
    very seriously, which, at its core, is an open communication
    between the Federal Government and the tribes in trying to
    understand each other's mutual concerns and interests. I think,
    as you have observed, Mr. Chairman, it is rather an unusual
    statutory situation along the border with the Roosevelt
    Reservation. And the Congress has given the executive branch
    unusual authorities. And the Administration has determined that
    it is in the best interest of the national security----
        Mr. Grijalva. The last Congress gave them unusual
    authority. This Congress hasn't given them unusual authority.
    That is why you had to go to the Defense Department to get
    money to build a wall because this Congress didn't do it.
        But anyway, my other point is, Dr. Ortiz, different
    agencies and when you talk to tribal leaders, some agencies
    find the requirement of consultation burdensome. Tribes respond
    that it is subjective, that some do it well, like you gave
    examples. Is there a place for some level of uniformity and a
    legal mandate on how consultations should be done across the
    Federal Government, agency-to-agency, so that we don't have
    different boxes that are being checked off, that there is a
    criteria on how you interact and how you deal with tribes? Did
    you think there is a need for that that Congress should
    explore?
        Dr. Ortiz. GAO hasn't directly evaluated the need for that.
    We have looked specifically at different policies. Where we do
    see some agency policies really shine in terms of what they
    demand for those consultations in terms of what they expect
    agencies to do and in terms of the manner in which they treat
    the input and expertise of tribes.
        Mr. Grijalva. Thank you. I yield back. Thank you for your
    indulgence, Mr. Chairman.
        Mr. Gallego. Thank you. I would like to thank our witnesses
    for their insightful testimony and the Members for their
    questions. As I stated before, the members of this 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, and the
    hearing record will be held open for 10 business days for these
    responses. If there is no further business, without objection,
    the Committee stands adjourned.

        [Whereupon, at 4:48 p.m., the Subcommittee was adjourned.]

                [ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

     Powerpoint Presentation for the Opening Statement of the Hon. Raul M.
                Grijalva, Chair, Committee on Natural Resources

                  [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                T.O. Border Trip
                 Chairman Grijalva Briefing Notes and Locations
    Monument Hill
        Archeologists, Tribal elders were interviewed and identified this
    hill as sacred to the O'odham. This hill is mentioned in Father Kino's
    letters and there was no Sonoita. During Apache raids, if a body was
    found their body would be placed on this hill. Meaning there are bodies
    of other tribes among this Hill with bone fragments. DHS mentioned that
    they would back off on developing the Hill but the work is still being
    done (as you can see the road is widened in the photos/video) even
    after the tribe mentioned this area in a letter. Edward Abbey mentioned
    Monument Hill and its significance to the tribe in his archeology
    papers published in 1960s.
    Quitobaquito Springs
        There is a Hia-ced O'odham (Sand People) village next to the Spring
    that was mentioned in 1693-1695 by Father Kino. There is another
    mention of this area in 1908 that also recorded the village north of
    the Springs. In 1937, the Park Service purchased the land from the
    families in this area and that was the last time people habited the
    area. There is a Hia-ced O'odham cemetery \1/2\ mile north of the
    Springs.
    Ground water pumping
        Since the border wall construction includes ground water
    extraction, there is a white water monitoring tank that has been
    temporarily placed in the Springs for the benefit of the tribe and the
    park. The Border Patrol is digging water wells for the construction of
    the wall. The tribe is concerned about how the digging of the wells
    will affect the water tables of the sacred Springs. Archeologist noted
    that in the late 19th century a diversion of water into this area for
    fields. The tribe asked for a buffer area to allow for the animals to
    come back and forth through the area since the Springs is also
    considered a watering hole for some animals in the area.
    Wildlife Impacts
        Quitobaquito pupfish is an endangered species in this spring. The
    Sonora Mud Turtle is a candidate for the endangered species list and is
    only found in this spring. Other animals in this area include the
    Sonora Prong Horn and little animals--there are 150 species recorded
    drinking out of this Spring. The roadrunner will not be able to go
    through the fence. There will be an impact for wildlife--the fence
    construction includes lights for night construction crews, and this is
    a concern for migrating birds. The nearest water wells are being pumped
    7-8 miles away. The impacts of the water pumping and wildlife may not
    be seen for several years.
        Also, north of the Springs there is a graveyard the Tribe uses as a
    site for reburials. The spring head is also a sacred site for the
    O'odham. White clay is gathered from this area for ceremonies.

        Artifacts Area--Between the Springs and the current border fencing
    there is an area where artifacts have been found. This area will be in
    the proposed construction roadway. The proposed roadway may come up to
    60 ft from the current border fencing.
        Artifacts, seashells, and human bone fragments have been found in
    an area near Quitobaquito Springs for the Hia-ced O'odham (Sand
    People). Bones, artifacts, pottery and shells are found throughout the
    area leading to the Springs on both the U.S. and Mexico side of the
    border.
        There is an archeologist that DHS has contracted to be the monitor
    for the entire construction of the border wall, and he drives back and
    forth along the road. This is not the most efficient way to monitor the
    desecration of artifacts. At one point during our trip we saw him
    driving, the tribe's archeologist stopped him and asked about the new
    roadways constructed and the plants that were thrown on the side of the
    roads. He noted that they have hired another archeologist to monitor,
    but he was not allowed to talk to anyone.
    Saguaro Impact
        To prepare for the construction trucks, cranes and materials that
    will need to be transported the current roadway next to the border will
    be widened up to 60 ft. This means that plants within that area will be
    bulldozed or replanted. Cacti with stakes mean they have been
    transplanted away from the current construction area. From what
    archeologist know there are over 800 saguaros that have been
    transplanted. The DHS Contractor for the construction--Northland
    Research only listens to its own arborist and dose not coordinate with
    Parks or tribal archeologists. Photos and video indicate that folks on
    the ground were surprised to see the progress on the roadway there were
    areas of the roadway that were not bulldozed just a month ago that were
    flattened.
    Construction Roadways
        The Nation was told that the roads next to the current fencing and
    border structures would be widened for the border wall construction
    trucks and crew to put the wall up. The new road would be within 60
    feet of the current border structures. There are markers along the
    current roadway that show where the proposed roadway will be. Most of
    the plants in the area are supposed to be marked with a stake for re-
    planting or receive a red spray paint dot that indicates the plant is
    not re-plantable and is tossed aside.
        DHS has its own arborist that monitors the construction. The
    Arborist does not notify the NPS Archeologist of the plants that are in
    the way of the roadway construction.
    Las Playas--Intaglio Site
        Some rock piles date back over 2,000 years maybe even longer. Other
    rock piles are more recent and are at least 100 years old. Ceremonial
    dances were performed in this area which is as big as a football field.
    This site was known to exist for at least 10,000 years. Tribal elders
    have noted that this is an area used for ceremonies, and dances. The
    Hia-ced O'odham have a village across the border not too far from this
    location. DHS has not responded as to where the site of the proposed
    roadway would be--given is proximity to the border and the current
    roadway. The area where the rocks are placed falls within the 60 ft.
    Las Playas--Burial Site
        This was a burial site for the Hohokam around the 1700-1800s in
    this area there are artifacts that go back 10,000 years. The older
    sites are showing a continuity of the people living in this area, this
    is consistent with the oral traditions. This area was part of a walking
    area for people and is in the pathway that would lead to water. Across
    the border from this site, is another Hohokam village. This burial site
    may have been used by the people of that village. Bone fragments and
    shells were also found in this area. This burial site is next to the
    current Normandy style barriers that exist for the border. Current
    roadways go around the burial site, but a widening of that may disturb
    the burial site.

                                     ______

     Photo Submissions taken from Chairman Grijalva's Border Wall Tour on
                                January 20, 2020

                  [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                                   July 5, 2019

    Paul Enriquez, Environmental Branch Chief
    Border Patrol Facilities and Tactical Infrastructure Program Management
            Office
    1300 Pennsylvania Avenue NW
    Washington, DC 20229

    Carla L. Provost, Chief
    U.S. Border Patrol
    1300 Pennsylvania Avenue NW
    Washington, DC 20229

    Roy Villareal
    Border Patrol Tucson Sector Chief
    2430 S Swan Road
    Tucson, AZ 85711

    Re: Coalition Comments on Proposed Border Walls in Arizona's Pima and
            Cochise Counties

        Dear Mr. Enriquez,

        These comments on the proposed construction of 63 miles of border
    walls and the installation of lighting and technology in the United
    States Border Patrol (USBP) Tucson sector are submitted on behalf of
    the undersigned conservation, human rights, public interest, and faith-
    based organizations.
        We must note immediately that this comment process is deeply flawed
    and seemingly meaningless, as Customs and Border Protection (CBP) has
    already awarded a $646,000,000 construction contract for this project
    just days after sending the public a request for comment.\1\ This
    clearly illustrates that CBP has no intentions of modifying or changing
    the proposed course of action based on input received. CBP's attempt to
    exempt itself from 41 environmental, public health and cultural
    resource protection laws \2\ further demonstrates the agency's complete
    disregard for engaging with stakeholders and addressing concerns of
    communities that will be harmed by the project. Unless CBP immediately
    halts construction and rescinds the waiver of these laws, it appears
    there will be no analysis of the clear harm the project would inflict
    on communities, clean air, clean water, endangered species, cultural
    resources, and indigenous culture and heritage along the Arizona-Mexico
    Border.
    ---------------------------------------------------------------------------
        \1\ Department of Defense. 2019. Contracts for May 15, 2019.
    https://dod.defense.gov/News/Contracts/Contract-View/Article/1848882/.
        \2\ 84 CFR 21798. May 15, 2019. Pages 21798-21800 https://
    www.federalregister.gov/documents/2019/05/15/2019-10079/determination-
    pursuant-to-section-102-of-the-illegal-immigration-reform-and-
    immigrant-responsibility#print.
    ---------------------------------------------------------------------------
        While CBP has failed to provide adequate information for the public
    to comment on this project, it is clear from the vague information in
    the comment solicitation notice that the construction of 63 miles of
    border walls in the locations proposed would cause severe and
    irreversible damage to the environment and harm the culture, commerce,
    and quality of life for communities and residents located near the
    project areas. Similar border barrier projects have damaged and
    destroyed protected landscapes, interfered with binational conservation
    efforts, obstructed the movement of wildlife, and impacted nearby
    communities.
        Based on the limited information provided by CBP in the May 6
    notice, we gather that the area of proposed construction for this
    project would fundamentally alter or destroy portions of Organ Pipe
    Cactus National Monument, Cabeza Prieta National Wildlife Refuge,
    Coronado National Memorial, the San Pedro Riparian National
    Conservation Area, and the San Bernardino National Wildlife Refuge,
    among many other areas. The project would also damage or destroy
    designated critical habitat for dozens of endangered species including
    the jaguar, Quitobaquito pupfish, San Bernardino spring snail, Huachuca
    water-umbel, Mexican spotted owl, Yaqui catfish, Yaqui chub, and
    beautiful shiner. The project would also occur near homes, ranchlands,
    and recreational areas, and have negative impacts on the health and
    wellbeing of residents on both sides of the border.
        The proposed project and further militarization of the border would
    also damage commerce, trade, and tourism in the region. CBP's proposal
    to construct border walls through frequently visited tourist
    destinations would have significant repercussions on southern Arizona's
    ecotourism economy and cause economic harm to border communities. CBP
    must assess potential harms that the proposed project would have on the
    environment, the economy, endangered species, air quality, water
    quality, and public health before moving forward.
        CBP's notice to comment is replete with vagueness and devoid of
    site-specific details. The one thing that is clear from the limited
    information provided is that the scale of the project is massive,
    spanning the majority of Arizona's southern border. A project of this
    scale will undoubtedly result in the destruction of federally protected
    lands, and restrict the movement and migrations of myriad species of
    wildlife, interfering with their ability to access food, water, mates
    and habitat. This project clearly warrants an in-depth and transparent
    review of potential impacts, as would normally be required under the
    National Environmental Policy Act (NEPA).
        Before we discuss the potential harms caused by the proposed
    project, we must remind CBP that there is no evidence that the
    construction of additional border barriers would achieve the agency's
    stated goals to ``impede or deny illegal border crossings,'' as border
    walls of many designs have proven easily surmountable by people in a
    number of ways, including with a ladder or a rope.
        We request that CBP carefully review and respond to the numerous
    concerns raised within the following sections of this letter before
    moving forward with any aspect of border barrier construction.
    Inadequate Public Notice and Comment
        We strongly object to CBP's insubstantial and discriminatory public
    comment process for this project. CBP's failure to publish a Spanish
    language notice to comment is unacceptable and amounts to language-
    based public input suppression and discrimination. Based on the
    substantial inadequacies of the public comment process, it is almost
    certain that key stakeholders have been disregarded and federal
    requirements for coordination and/or consultation with other federal
    agencies, such as those required by the Endangered Species Act (ESA),
    NEPA, and other relevant federal laws, have been ignored.
        CBP has held just one public meeting in Ajo, Arizona, with only
    low-level, non-decision-making CBP staff in attendance. No additional
    public meetings have been scheduled for communities that will
    undoubtedly be harmed by the project. This denial of a transparent
    public process strongly suggests that CBP has no sincere interest in
    obtaining thoughtful comments and broadly engaging with the diverse
    constituencies affected by the project. To gather sufficient,
    meaningful public input, CBP must host public comment forums in English
    and Spanish in each of the affected areas including Tucson, Sells,
    Sierra Vista, Patagonia, Douglas, Nogales, and Yuma regarding the
    construction of border barriers through communities and protected
    lands.
        We note that CBP has already awarded a construction contract for
    the proposed project, which suggests that no amount of public input,
    scientific data, or new information provided to agency officials and
    decision-makers would actually alter the proposed action or inform the
    development of alternatives. CBP must cancel or at a minimum put the
    existing contract on hold until all relevant stakeholders have been
    consulted, public forums have been held, and public comments and
    concerns with the project--including the consideration of alternative
    courses of action--have been analyzed.
        We also note that the information provided within CBP's notice to
    comment is wholly inadequate to solicit meaningful public comment. The
    map contained in the notice lacks basic landmarks, simple cadastral
    data, and even a rudimentary map legend and scale. CBP says it intends
    to install lighting but gives no description whatsoever of the extent
    its intent, including how the lighting will be powered, how light
    pollution will be mitigated, and why lighting is even necessary when
    billions of tax dollars have been spent on surveillance technology that
    works in the dark. Similarly, CBP has provided no information about the
    critical issue of water. We have heard through informal sources that
    CBP plans on drilling wells every five miles along the border for this
    purpose. Such an action would be devastating to wildlife and border
    communities.
        To meaningfully comment on the impacts of this project, the public
    must first understand the specifics of the proposal, including a
    detailed and accurate description of where the proposed walls and
    associated infrastructure would be placed. It is CBP's responsibility,
    not the responsibility of the public, to compile and share detailed
    information on the proposed project before requesting the public to
    comment. CBP must provide detailed maps of the project area and extend
    the comment period to allow the public to make informed and specific
    comments after reviewing detailed and specific maps showing the extent
    of CBP's proposal.
        NEPA is a clear and well-established method of soliciting public
    comment, for which there is no substitute. Though CBP has elected to
    waive NEPA in its entirety, the public interest and the ultimate
    decision-maker would benefit from complying with NEPA and moving this
    process forward under NEPA with the completion of an Environmental
    Impact Statement (EIS). Importantly, a NEPA-compliant EIS would ensure
    that the process is transparent and publicly accessible by providing
    notice to comment via Federal Register publication, local newspapers,
    and other means that are necessary to reach the communities that the
    proposed action would impact. The NEPA process would also cure the
    numerous and significant shortfalls in CBP's effort to notify and
    invite public comment for this project, including the selective
    distribution of the notice to comment and the dismal lack of detail
    about the project included therein.
        Lastly, a NEPA-compliant EIS would allow CBP to analyze the true
    purpose and need for the project and consider alternatives to the
    proposed project, including a ``no action alternative'' and other
    alternatives that would be less costly to taxpayers and less harmful to
    the environment and neighboring communities. CBP has recently stated
    that the agency would conduct environmental planning and produce
    Environmental Stewardship Plans (ESPs) for border wall construction
    projects that would ``look exactly like Environmental Assessments
    (EAs)'' and ``mirror'' the intent of NEPA.\3\ We note, however, that
    ESPs are not and will never be an adequate substitute for the NEPA
    process. ESPs fail to meet the rigor set forth by NEPA in numerous
    ways. As stated in the Council on Environmental Quality's regulations
    implementing the procedural provisions of NEPA, alternatives are ``the
    heart of the environmental impact statement.'' \4\ Whether in the
    context of an EIS or an EA, NEPA requires agencies to ``study, develop
    and describe appropriate alternatives to recommended courses of action
    in any proposal which involves unresolved conflicts concerning
    alternative uses of available resources.'' \5\
    ---------------------------------------------------------------------------
        \3\ Paul Enriquez, U.S. Customs and Border Protection. 2018.
    Statement made during webinar on Rio Grande Valley border wall
    construction. October 30, 2018.
        \4\ 40 C.F.R. Sec. 1502.14.
        \5\ 42 U.S.C. Sec. 4332(E).
    ---------------------------------------------------------------------------
        Prior ESPs prepared by DHS and CBP do not examine alternatives, and
    instead have been used to justify decisions already settled on for
    projects that were undertaken before the drafting or release of an ESP.
    This is most clearly evidenced by DHS's August 1, 2017 decision to
    waive 37 environmental, public health, and cultural resource protection
    laws and break ground on 8 border wall prototypes and 16 miles of
    ``primary'' border wall in San Diego before conducting any sort of
    assessment on the potential harms of project. CBP did not complete an
    ESP for this project until 10 months after virtually all applicable
    environmental, public health, and cultural resource protection laws had
    been waived and construction was nearly complete.
        For these reasons, before CBP moves forward with the proposed
    construction, we request that CBP (1) immediately cancel or place on
    hold the $646,000,000 construction contract with Southwest Valley
    Constructors; (2) provide additional specific details about the project
    including accurate, detailed maps as would be required in an EIS to
    allow for informed public comment; (3) host public forums in English
    and Spanish in the Tucson, Sells, Sierra Vista, Douglas, Nogales,
    Patagonia, and Yuma communities; and (4) conduct this project in
    compliance with all relevant federal laws including, but not limited
    to, NEPA, ESA, the Clean Water Act, the National Historic Preservation
    Act, the Migratory Bird Treaty Act, the Clean Air Act, the Safe
    Drinking Water Act, the Archaeological and Historic Preservation Act,
    the Historic Sites, Buildings, and Antiquities Act, the Religious
    Freedom Restoration Act, the Native American Graves Protection and
    Repatriation Act, the National Wildlife Refuge System Administration
    Act, and the Administrative Procedure Act. CBP can start with the
    publication of a notice to comment on the proposal in the Federal
    Register that provides a 60-day scoping period after sufficient
    information has been made available to the public about the proposed
    actions.
    Destruction of Habitat and Impacts to Wildlife
        Border barriers--regardless of whether they are composed of mesh,
    bollards, solid steel, or concrete--are well understood to be
    ecological stressors that destroy habitat, prevent genetic interchange,
    and impede wildlife migration.\6\ In July 2018, more than 2,500
    scientists published a paper detailing the harms that border walls
    cause to habitat quality, stating: ``Physical barriers prevent or
    discourage animals from accessing food, water, mates, and other
    critical resources by disrupting annual or seasonal migration and
    dispersal routes.'' \7\ Existing border walls in Arizona and across the
    U.S.-Mexico borderlands have caused extensive and well-documented harm
    to wildlife and natural processes, including the destruction and
    fragmentation of habitat; interference with the flow of water and the
    exacerbation of flooding; and disturbances and harm to wildlife during
    construction.
    ---------------------------------------------------------------------------
        \6\ Flesch, A.D., C.W. Epps, J.W. Cain, III, M. Clark, P.R.
    Krausman, and J.R. Morgart. 2010. Potential effects of the United
    States-Mexico border fence on wildlife. Conservation Biology, 24, 171-
    181.
        \7\ Peters, R., W.J. Ripple, C. Wolf, M. Moskwik, G. Carreon-
    Arroyo, G. Ceballos, A. Cordova, R. Dirzo, P.R. Ehrlich, A.D. Flesch,
    R. List, T.E. Lovejoy, R.F. Noss, J. Pacheco, J.K. Sarukhan, M.E.
    Soule, E.O. Wilson, J.R.B. Miller. 2018. Nature Divided, Scientists
    United: US-Mexico Border Wall Threatens Biodiversity and Binational
    Conservation, BioScience.
    ---------------------------------------------------------------------------
        Existing border security infrastructure, including miles of border
    barriers built with no environmental review, already poses a
    significant threat to wildlife and conservation lands in and around the
    proposed project area in Arizona. CBP's operation of motor vehicles in
    wilderness, round-the-clock patrols, and helicopter flights are already
    persistent disturbances to wildlife in many of the project areas. The
    proposed walls will only exacerbate existing damage and further degrade
    the unique and irreplaceable habitats in the Arizona borderlands. Any
    potential harm caused by the proposed project must be considered
    cumulatively with the existing stressors on species and habitat caused
    by border militarization and associated infrastructure and operational
    activities.
        CBP's proposed project seeks to replace existing vehicle barriers
    with border walls in federally protected lands along the Arizona
    border. We remind CBP that the existing vehicle barriers, typically
    made of steel ranging from four to six feet in height, were installed
    as a result of collaboration, compromise, and much deliberation between
    federal land managers, border security officials, and environmental
    groups. We note that the National Park Service (NPS) even paid to
    install vehicle barriers in Organ Pipe Cactus National Monument out of
    its own budget, indicating the agency's investment in this less
    damaging alternative to a solid border wall.\8\ Since their
    installation, vehicle barriers have been touted as both effective at
    stopping smuggling and compatible with the environmental considerations
    inherent in protected federal lands.
    ---------------------------------------------------------------------------
        \8\ Congressional Research Service. 2009. Border Security: Barriers
    along The U.S. International Border. Prepared by Haddal C., Kim Y., and
    John Garcia, M. March 16, 2009. https://fas.org/sgp/crs/homesec/
    RL33659.pdf.

        A 2006 article in the Arizona Republic attested to the effective
    compromise that the newly installed vehicle barriers represented,
    ---------------------------------------------------------------------------
    noting:

            ``For now, barriers are the best compromise available for land
            managers who want to protect their battered parks, Border
            Patrol agents who want to keep illegal immigrants out and
            environmentalists who are concerned that solid border walls
            will destroy protected species and impede animal migration.
            They are proving effective, too, reducing illegal vehicle
            traffic by more than 90 percent in some areas . . . Vehicle
            barriers . . . seem to be an answer to one point on which
            environmentalists and Border Patrol agree: The success of a
            border wall on Arizona's public lands is doubtful.'' \9\
    ---------------------------------------------------------------------------
        \9\ Arizona Republic. 2006. New Fences Protecting Fragile Areas on
    Border. Corinne Purtill. August 26, 2006.

        The existing vehicle barriers in Organ Pipe Cactus National
    Monument and across the U.S.-Mexico border are the result of years of
    careful deliberation and compromise. CBP's new proposal to replace
    these effective and environmentally compatible barriers with a solid
    wall ignores decades of communication between federal land managers,
    border security officials, environmentalists, and the public. Indeed,
    CBP's proposal would steamroll all of these important concerns and
    cause severe damage not just to Arizona's protected natural resources,
    but to CBP's relationships with key local stakeholders, federal land
    managers, and the Arizona public at large.
        The disturbance of land, potential harms to air and water quality,
    and interference with natural water drainage and flow also has high
    potential to harm and alter southern Arizona's unique flora. Ground
    disturbance resulting from the proposed project also raises concerns
    about the introduction of nonnative plants and erosion. Without plant
    cover to slow water flow and stabilize soils, rain would likely cause
    gullying and loss of topsoil, further degrading ecosystems within and
    adjacent to the proposed project areas.
        Apart from the low-resolution and inadequate maps attached to CBP's
    notice to comment, no maps have been released that adequately detail
    the project area or assess the acreage of habitat that would be
    destroyed as a result of the project. Even based on the limited
    information CBP has provided, it is clear that the proposed project
    would harm native species and the natural environment. Despite this,
    CBP has not indicated that it would mitigate harm to wildlife,
    including threatened and endangered species, and their habitat. Even if
    CBP proposes mitigating actions, we are concerned by CBP's poor track
    record regarding promised mitigation.
        For instance, in the Lower Rio Grande Valley National Wildlife
    Refuge, where CBP erected many miles of border wall and upgraded patrol
    roads in 2008, CBP prepared an ESP which determined that the most
    appropriate mitigation for destroyed or fragmented habitat would be the
    purchase of 4,600 acres of land that could serve as ocelot habitat to
    be added to the U.S. Fish and Wildlife Service (USFWS) refuge system.
    To date, CBP has purchased only 1,100 acres of potential ocelot habitat
    in South Texas. This is less than a quarter of the habitat that CBP
    committed to purchasing in the 2008 ESP to offset habitat destruction.
    This demonstrates 1) that CBP does not take mitigation commitments
    seriously and 2) that mitigation strategies and conservation measures
    outlined in ESPs are not adhered to by the agency, further
    demonstrating how ESPs are an inadequate substitute for NEPA. We are
    concerned that similar pledges of mitigation that might be made in the
    course of this proposed project may also be left unmet or ignored.
        Given the massive scale of the proposed project and the importance,
    uniqueness, and sensitivity of many of the areas that would be harmed,
    it is impossible to condense all of our concerns into one short
    document. We have selected certain key species, areas and issues of
    concern that are expanded upon below.
    Endangered Species:
        To our knowledge, CBP has not initiated ESA formal consultation
    with USFWS to ensure that the proposed activities will not jeopardize
    the continued existence of endangered or threatened species or result
    in the destruction or adverse modification of endangered species
    habitat. There is no indication in the notice to comment or elsewhere
    that CBP intends to comply with the ESA or is taking into account the
    impacts of border wall construction on federally listed endangered
    species. If this project moves forward, failure to comply with the ESA
    would further endanger the recovery of numerous endangered species
    including the jaguar, cactus ferruginous pygmy owl, Sonoran pronghorn,
    Quitobaquito pupfish, San Bernardino spring snail, Yaqui topminnow,
    Yaqui catfish, beautiful shiner, willow flycatcher, lesser long-nosed
    bat, and many others.
        Despite the extremely vague description of the proposed project in
    notice to comment, it is clear that the proposed construction would
    result in the removal and degradation of habitat and could lead to
    direct wounding, harassment, killing, and/or other forms of ``take'' of
    listed species. The proposed construction would inevitably remove
    vegetation, create disturbances, and potentially restrict species'
    movement. CBP, like all other federal agencies, must also further the
    purposes of the ESA by ensuring its activities aid in the conservation
    and recovery of endangered and threatened species.\10\ We implore CBP
    to uphold its legal duties under the ESA and request that CBP engage in
    formal consultation with USFWS immediately.
    ---------------------------------------------------------------------------
        \10\ 16 U.S.C. Sec. 1531(c)(1).
    ---------------------------------------------------------------------------
    Night Lighting Harms Wildlife, Wilderness Character, Visitor
            Experiences:
        Many of the areas that would be harmed by the proposed projects are
    wild, rugged and largely free of development. Remoteness from urban
    centers, low humidity levels, and a lack of light pollution make places
    like Organ Pipe Cactus National Monument and Cabeza Prieta National
    Wildlife Refuge spectacular destinations for stargazing, largely free
    of anthropogenic light.
        CBP's notice to comment, while devoid of many details, does state
    that the proposed wall would include the ``installation of lighting.''
    This would severely detract from dark night skies and harm wilderness
    character in Organ Pipe Cactus National Monument, Cabeza Prieta
    National Wildlife Refuge, and any other areas where it is installed by
    emitting light pollution and marring the natural night skies with
    artificial light.

        NPS management policies identify preserving dark night skies as an
    important factor in preserving many park resources and values,
    including ``wildlife, wilderness character, visitor experience,
    cultural landscapes and historic preservation.'' \11\ A 2017 report
    compiled by resource managers at Organ Pipe Cactus National Monument
    noted the impacts of new security lighting installed along the border,
    stating:
    ---------------------------------------------------------------------------
        \11\ National Park Service. 2006. Wilderness Preservation and
    Management Policies 2006. Department of the Interior. Washington DC.

            ``Future border security developments also have the potential
            to significantly impact dark skies. If the existing vehicle
            barrier is converted into a full-on border wall, permanent
            security lighting could potentially be installed--a development
            that would be catastrophic for dark night skies in the
            region.'' \12\
    ---------------------------------------------------------------------------
        \12\ National Park Service. 2017. Organ Pipe Cactus Wilderness:
    Wilderness Character Narrative and Baseline Monitoring Assessment,
    Building Blocks for Wilderness Stewardship. Department of the Interior.
    March 2017.

        Organ Pipe Cactus National Monument is currently in the process of
    becoming an International Dark Sky Park and has undertaken a multi-year
    process to retrofit lighting fixtures and conduct renovations that
    minimize light emissions. This significant financial investment, as
    well as the monument's future designation as an International Dark Sky
    Park could be needlessly jeopardized by CBP's proposed project if
    construction moves forward and lighting is affixed to the border wall.
        Light pollution also has numerous and severe impacts to nocturnal
    and crepuscular wildlife species by disrupting natural rhythms,
    influencing predator-prey relationships, and hindering navigation.\13\
    High intensity lighting in many of the proposed project areas would
    affect birds, bats, and pollinators and disrupt natural movements.
    CBP's proposed night lighting is also a significant concern for
    endangered ocelots and jaguars, especially in the project areas that
    encroach into designated critical habitat for the jaguar and known
    occupied habitat for ocelot.
    ---------------------------------------------------------------------------
        \13\ National Park Service. 2015. Draft National Park Service Air
    Quality Analysis Methods. Air Resources Division, September 2015.
    Department of the Interior. Lakewood, Colorado.
    ---------------------------------------------------------------------------
        A 2004 paper on the effects of artificial night lighting on ocelot
    populations in Texas' Rio Grande Valley determined ``illumination and
    noise generated from diesel powered portable lights may cause ocelots
    to seek other travel corridors.'' \14\ The same paper concludes
    ``activity levels either cease entirely as the result of night
    luminance or shift to covered habitat that provides a shield from the
    effects of night lighting.'' \15\
    ---------------------------------------------------------------------------
        \14\ Grigione, M.M. & Mrykalo, R. 2004. Effects of artificial night
    lighting on endangered ocelots (Leopardus paradalis) and nocturnal prey
    along the United States-Mexico border: A literature review and
    hypotheses of potential impacts. Urban Ecosystems (2004) 7: 65.
        \15\ Ibid. P. 74.
    ---------------------------------------------------------------------------
        Most border wall construction to date, particularly in remote
    wilderness areas, has not involved the installation of night lighting.
    For this project, CBP has demonstrated no clear need for night
    lighting, especially considering the vast and severe harm such lighting
    would cause to wildlife, wilderness character, and tourism.
    Quitobaquito Springs:
        CBP's proposed project would be devastating for Quitobaquito
    Springs, a rare desert oasis just 150 feet north of the border at Organ
    Pipe Cactus National Monument. Construction activities like bulldozing,
    trenching, and clearing of vegetation will have catastrophic
    consequences for this desert spring and Organ Pipe Cactus National
    Monument as a whole. Quitobaquito is exceptionally rich in
    biodiversity, harboring the only population of the Quitobaquito pupfish
    and the only major population of the Sonoyta mud turtle in the United
    States. Despite the tiny fraction of area, it encompasses within Organ
    Pipe Cactus National Monument, it supports 45% of the flora found in
    the Monument \16\ and is home to at least 271 plant species, including
    locally rare wetland species found nowhere else in the country such as
    the desert caper.\17\
    ---------------------------------------------------------------------------
        \16\ Felger, R. and B. Broyles. 2007. Dry Borders, University of
    Utah Press (2007), p. 209.
        \17\ Nabhan, G. 2003. Destruction of an Ancient Indigenous Cultural
    Landscape: An Epitaph from Organ Pipe Cactus National Monument.
    Ecological Restoration 21 (4), 290-295. Retrieved from http://
    www.jstor.org/stable/43442711.
    ---------------------------------------------------------------------------
        Quitobaquito Springs is on the National Register of Historic Places
    and contains human cultural artifacts dating back 15,000 years, making
    it one of the oldest inhabited places in North America.\18\
    Quitobaquito is still visited and used by traditionally associated
    tribes, including for the Tohono O'odham ceremonial salt
    pilgrimage.\19\ Decades of persistent conservation efforts to restore
    and protect the oasis have allowed the spring to remain a thriving
    haven for endangered species as well as a global tourist destination
    and area of continued cultural use and significance. DHS's decision to
    waive the Native American Graves Protection and Repatriation Act, the
    National Historic Preservation Act, and the American Indian Religious
    Freedom Act is deeply troubling. Waiving these critical cultural
    resource protection laws imperils the incredible archeological record
    present in this area and constitutes a repugnant insult to indigenous
    peoples with deep cultural ties to the spring.
    ---------------------------------------------------------------------------
        \18\ National Park Service. 2016. Foundation Documents: Organ Pipe
    Cactus National Monument. Department of the Interior.
        \19\ Ibid. P. 6.
    ---------------------------------------------------------------------------
        Due to the waiver of all of the laws and requirements that would
    normally apply to rush border wall construction, it appears there will
    be no meaningful analysis on the impacts of wall construction at
    Quitobaquito before ground is broken. As a result of this reckless
    decision, the sensitive species, cultural resources, and even the
    hydrology of the Quitobaquito could be forever harmed.
        If border wall construction moves forward, it seems likely that the
    project would involve the use of a significant amount of water for
    concrete mixing. It is imperative that CBP refrain from taking any
    water from Quitobaquito or from wells connected to the regional
    aquifer, as any disturbance or extraction could jeopardize spring
    outflow and imperil the future of the spring. Regional ground water
    levels have been in consistent decline, exacerbated by climate change,
    and long-term drought.\20\ Any water taken from the aquifer by drilling
    new wells or reactivating existing wells in the region would increase
    water drawdown and pose a threat to future outflow of the spring.
    Because of such regional water scarcity, extraction from the regional
    aquifer should not be permitted under any circumstances.
    ---------------------------------------------------------------------------
        \20\ National Park Service. 2017. Organ Pipe Cactus Wilderness:
    Wilderness Character Narrative and Baseline Monitoring Assessment,
    Building Blocks for Wilderness Stewardship. Department of the Interior.
    March 2017.
    ---------------------------------------------------------------------------
        Quitobaquito Springs is one of the main visitor attractions at
    Organ Pipe Cactus National Monument and has seen an increase in public
    use and visitation in recent years.\21\ Quitobaquito is listed as one
    of the monument's Fundamental Resource Values ``essential to achieving
    the purpose of the park and maintaining its significance.'' \22\ CBP's
    proposed project would have significant impacts not just on the spring
    itself, but on the visitor experience traveling to and from this unique
    destination. The public access road to Quitobaquito parallels the U.S.-
    Mexico border for more than 10 miles. The vehicle barriers currently
    present on the border along this road pose a minimal visual
    obstruction, and are generally hidden by desert vegetation. As a
    result, the drive to and from Quitobaquito feels remote with few signs
    of human infrastructure or development. If CBP builds an 18-30-ft wall
    along the border here, it would be visible for the entirety of this
    drive and much of the southern reaches of the monument. This would
    severely detract from visitor experience. Such impacts must be analyzed
    before the project moves forward.
    ---------------------------------------------------------------------------
        \21\ Ibid. P. 19.
        \22\ Ibid. P. 6.
    ---------------------------------------------------------------------------
    Destruction to Rare Sky Island Ecosystems:
        A significant portion of the proposed border wall construction
    would occur along the eastern portion of the Arizona-Mexico border in
    an area known as the Sky Island region. Sky Islands are forested
    mountains surrounded by desert and grassland habitat. They serve as
    refuges for many plants and animals, providing cooler temperatures,
    flowing water and suitable habitat within the Sonoran and Chihuahua
    deserts. The Sky Island region encompasses approximately 22.7 million
    hectares (56.1 million acres) and over 55 individual Sky Island
    mountains, 23 in the U.S. and 32 in Mexico, that reach up to 3,000
    meters (10,000 feet) in elevation and support the most biodiverse oak
    and pine communities in North America.\23\ The Sky Island region is
    renowned for the highest mammal diversity in the United States,\24\ the
    highest bird diversity in the interior of North America, and the
    highest diversity of desert fish in the U.S. Southwest. Many of these
    species are in danger of extinction--for example, of 36 original
    species of native Arizona fish, one species is extinct and 20 more are
    threatened or endangered, including species near proposed wall
    construction like the Quitobaquito pupfish, Yaqui topminnow, Yaqui
    chub, Yaqui catfish, and beautiful shiner.\25\
    ---------------------------------------------------------------------------
        \23\ McLaughlin, S.P. 2015. An overview of the flora of the Sky
    Islands, southeastern Arizona: diversity, affinities, and insularity.
    In: DeBano, L.F.; Ffolliott, P.H.; Ortega-Rubio, A.; Gottfried, G.J.;
    Hamre, R.H.; and Edminster, C.B.; tech. coords. Biodiversity and
    management of the madrean archipelago: the sky islands of southwestern
    United States and northwestern Mexico. 1994 Sept. 19-23; Tucson, AZ.
    Gen. Tech. Rep. RM-GTR-264. Fort Collins, CO: U.S. Department of
    Agriculture, Forest Service, Rocky Mountain Forest and Range Experiment
    Station: 60-70.
        \24\ Warshall, P. 1995. Southwestern sky island ecosystems[1] . In:
    LaRoe, E.T.; Farris, G.S.; Puckett, C.E.; Doran, P.D.; Mac, M.J.
    editors. Our Living Resources: A Report to the Nation on the
    Distribution, Abundance, and Health of U.S. Plants, Animals, and
    Ecosystems. Washington, DC: U.S. Department of the Interior, National
    Biological Service. 318-322. https://pubs.er.usgs.gov/publication/
    70148108 [Accessed January 30, 2019].
        \25\ US Fish and Wildlife Service 2019. ``San Bernardino National
    Wildlife Refuge.'' https://www.fws.gov/refuge/san_bernardino/ [Accessed
    January 30, 2019].
    ---------------------------------------------------------------------------
        Wide-ranging wildlife such as black bear, jaguar, mountain lion,
    coati, white-tailed and Coues deer, javelina and many other species
    must be able to move between Sky Islands to reach food, water and
    mates. The proposed construction would sever the ecologically connected
    Sky Island region in two making it impossible for wildlife to move
    between Sky Islands in the U.S. and Mexico. Pathways for wildlife
    spanning the Arizona-Mexico border are vital to the recovery of jaguar
    and ocelot in the U.S. and the recovery and persistence of black bear
    in Sonora. These corridors provide critical connections for wildlife of
    the Sky Islands to move and respond to climate changes that are making
    water more scarce and bringing more extreme and prolonged heat waves.
        The unique nature of this region is reflected in the extensive
    network of public land along the border including the Coronado National
    Forest, the Coronado National Memorial, the San Pedro Riparian National
    Conservation Area, and the San Bernardino National Wildlife Refuge.
        For the past 23 months, from July 2017 to May 2019, Sky Island
    Alliance has monitored borderlands wildlife movement with 24 remote
    sensing cameras placed along the Arizona-Mexico border. The following
    species have been documented moving in borderlands pathways: antelope,
    jackrabbit, badger, bats, birds, black bear, black hawk, black-tailed
    jackrabbit, bobcat, cliff chipmunk, coyote, desert cottontail, great
    blue heron, great horned owl, grey fox, grey hawk, hog-nosed skunk,
    hooded skunk, javelina, Mexican jay, mountain lion, mule deer, northern
    flicker, raccoon, raven, reptiles, red-tailed hawk, ring-tailed cat,
    roadrunner, rock squirrel, striped skunk, turkey, turkey vulture,
    white-nosed coati, and white-tailed deer.\26\ CBP's proposed project
    would harm each one of these species and many more that have yet to be
    documented by severing critical movement corridors between sky island
    mountain ranges in Arizona and Mexico.
    ---------------------------------------------------------------------------
        \26\ Bethel, Megan. 2019. Sky Island Alliance's Border Camera
    Summary. Sky Island Alliance.
    ---------------------------------------------------------------------------
    San Pedro River, general flooding concerns:
        CBP's proposal includes a section of proposed barrier that would
    wall off the San Pedro River and floodplain. The San Pedro is the last
    free-flowing, undammed desert river in the southwestern United States.
    In 1988, Congress created the San Pedro Riparian National Conservation
    Area (SPRNCA) as the country's first National Conservation Area to
    protect this special resource. To date it is one of only two Riparian
    National Conservation Areas in the nation. The San Pedro is one of the
    most biologically diverse watersheds in the United States,\27\
    providing habitat for a host of wildlife and millions of songbirds that
    migrate through the area each year. According to the Bureau of Land
    Management (BLM), the San Pedro River is ``a rare remnant of what was
    once an extensive network of similar riparian systems throughout the
    Southwest.'' \28\ With about 90 percent of the Southwest's riparian
    ecosystems already degraded or destroyed, the San Pedro River is an
    outstanding example of a health riparian community \29\ and has been a
    focus area for conservation and restoration on both sides of the
    border. CBP's proposed project is a direct threat to the San Pedro
    River and the SPRNCA.
    ---------------------------------------------------------------------------
        \27\ Boykin, et. al. 2013. ``A national approach for mapping and
    quantifying habitat-based biodiversity metrics across multiple
    scales.'' In Ecological Indicators. October, 2013. pp. 139-147.
        \28\ Bureau of Land Management. 2019. San Pedro Riparian National
    Conservation Area. Department of the Interior. Accessed June 2019.
    https://www.blm.gov/visit/san-pedro.
        \29\ Sprouse, Terry. 2005. Water Issues on the Arizona-Mexico
    border. Santa Cruz, San Pedro and Colorado Rivers. University of
    Arizona Press.
    ---------------------------------------------------------------------------
        Once known as Beaver River, the San Pedro today supports but a
    small population of reintroduced beaver. This population is found in
    small pockets of habitat on both sides of the international border
    stretching from the headwaters of the San Pedro in Mexico to the Gila
    River in the U.S. The beaver were originally reintroduced in the U.S.
    portion of the Lower San Pedro River and then found their way across
    the border to Rancho Los Fresnos,\30\ where the dams of these once
    extirpated rodents retain water that soaks into the ground, raising
    water tables and nurturing trees and smaller plants.\31\ The presence
    of beaver is an example of years of effort on the part of people on
    both sides of the border working to enhance the ecosystem of the San
    Pedro River. An impenetrable barrier across this river will divide the
    beaver population in two and almost certainly lead to the decline of
    beaver on both sides of the border and prevent any future
    recolonization from one country to another.
    ---------------------------------------------------------------------------
        \30\ Smith, J. 2017. Up Against the Wall. BioGraphic.com. September
    6, 2017. https://www.biographic.com/posts/sto/up-against-the-wall
    [Accessed July 1, 2019].
        \31\ New Mexico Department of Game and Fish. 2017. Wildlife Notes.
    http://www.wildlife.state.nm.us/download/education/conservation/
    wildlife-notes/mammals/Beaver.pdf [Accessed on July 1, 2019].
    ---------------------------------------------------------------------------
        The San Pedro is also a known wildlife corridor. Half of all
    breeding bird species in North America are known to use the San Pedro
    River corridor, along with 82 species of mammals and 43 species of
    reptiles and amphibians.\32\ Camera monitoring of this river corridor
    for 3 years in a single spot just north of the international border has
    documented 1,165 instances of wildlife traveling this river pathway.
    This effort has proven the San Pedro's importance for numerous species
    including badger, bobcat, javelina, mountain lion, mule deer, raccoon,
    several skunk species, turkey, and white-tailed deer, as they roam in
    search of food, water, and mates.\33\
    ---------------------------------------------------------------------------
        \32\ Ibid. P. 16.
        \33\ Sky Island Alliance 2019. Unpublished research.
    ---------------------------------------------------------------------------
        We have made numerous requests to obtain more information about the
    type of structure planned for the San Pedro River section of the
    proposed project. Despite our repeated requests, CBP has provided no
    relevant information. While we know very little about the type of
    barrier proposed for the floodplain, it is all but certain that any
    structure installed here would pose an obstruction to the movement of
    wildlife and unavoidably alter or dam the flow of water.
        In 2007, DHS proposed a similar project to build a wall across the
    San Pedro River. Federal land managers objected strenuously to these
    plans, calling alarm to the environmental damage that would ensue and
    the public safety risk such a structure would create as a flood danger.
    In a memo dated October 4, 2007, the BLM evaluated DHS's prior proposal
    to build a wall across the San Pedro River and floodplain, raising many
    concerns, including the threat of debris build-up against the barrier
    and obstruction of streamflow during floods.\34\ The BLM noted that DHS
    entirely failed to consider debris buildup as a factor in their flood
    modeling--a factor which is almost certain to occur in any flood event.
    The 2007 memo stated, ``Existing structures (remarkably similar to
    proposed design) have considerable problems with debris build-up.''
    \35\
    ---------------------------------------------------------------------------
        \34\ Memo: 2007. BLM Hydrologic Issues and Concerns, Project: Dept.
    of Homeland Security (``DHS'') Pedestrian Fence, Location: San Pedro
    River Basin, BLM.
        \35\ Ibid. P. 2.
    ---------------------------------------------------------------------------
        The fact that DHS failed to consider the basic and predictable
    factor of debris build-up in flood modeling suggests a level of
    negligence or ignorance in project planning that could seriously harm
    wildlife and landowners in the area if the project moves forward.
    Environmental factors have not changed in the 12 years since this
    project was originally proposed; all of the concerns raised by the BLM
    in 2007 remain relevant today and are still entirely unanswered in the
    project proposal and communications with DHS/CBP staff.

        The same 2007 BLM memo also voices concern of how the proposed wall
    would alter streamflow, natural floods, and wildlife habitat on the San
    Pedro, stating,

            ``The timing and intensity of seasonal flood flows in the San
            Pedro River are essential for maintaining riparian function as
            well as recharging the alluvial aquifer. Regardless of the
            maintenance commitments by Border Patrol, the proposed/existing
            fence could inadvertently act as a flood control structure
            altering natural flood characteristics.'' \36\
    ---------------------------------------------------------------------------
        \36\ Ibid. P. 1.

        If DHS proceeds with this border wall proposal and installs a
    structure in the San Pedro River and floodplain, it seems all but
    unavoidable that the flow of the river would be altered. Such actions
    would create a dam-like structure that would dramatically increase the
    flood risk and degrade the natural riparian function of the San Pedro
    ---------------------------------------------------------------------------
    ecosystem.

        A 2012 government-contracted study examined the impacts of a border
    wall installed across ephemeral washes in Organ Pipe Cactus National
    Monument and Coronado National Memorial, determining that the barrier
    there was causing significant and consistent alterations to channel
    flow and geomorphology and harming native vegetation and wildlife. The
    report warned:

            ``The obstruction of flow and sediment transport may have major
            consequences for stream morphology including lateral and
            vertical stream instability, as well as increased risk of over
            bank flows. Changes in channel function can have direct impacts
            on riparian vegetation and wildlife communities within the
            affected area. In addition, changes in channel morphology may
            increase the risk of fence failure due to erosion or hydraulic
            forces.'' \37\
    ---------------------------------------------------------------------------
        \37\ Natural Channel Design, Inc. 2012. 2011 Monitoring Report:
    Channel Morphology Related to the Pedestrian Fence. Organ Pipe Cactus
    National Monument and Coronado National Memorial. April 2012.

        The report also warns of the continued maintenance and restoration
    burdens the border barrier places upon federal land managers, stating
    ``The fence will continue to disrupt stream function and create the
    need for long term maintenance of the channels near the fence.'' \38\
    ---------------------------------------------------------------------------
        \38\ Ibid. P. 57.
    ---------------------------------------------------------------------------
        If built across the San Pedro River and floodplain, the new wall
    would create a debris dam that could result in a structural collapse,
    as happened in Organ Pipe Cactus National Monument and near Nogales,
    Arizona. These prior flood events provide a concerning example of what
    could occur on the San Pedro if the proposed project is allowed to move
    forward. Prior border wall-caused flood events in Arizona paint a
    deeply troubling picture of how CBP has neglected to consider obvious
    public safety and environmental dangers despite explicit and direct
    warning from federal agencies and the public.
        On July 12, 2008, just months after a 5.5-mile stretch of border
    wall was installed in Organ Pipe Cactus National Monument, the new
    border barrier caused debris buildup and severe flooding during a
    summer monsoon. The amount of rainfall during that storm (1-2 inches)
    was typical of summer storms in southern Arizona,\39\ yet this normal
    storm resulted significant damage to government infrastructure and
    wildlife habitat due to the newly constructed border wall. This
    flooding occurred despite the fact that the wall was designed with
    grates across the wash intended to mitigate flood events. Clearly CBP's
    flood mitigation attempt failed.
    ---------------------------------------------------------------------------
        \39\ National Park Service. 2008. Effects of the International
    Boundary Pedestrian Fence in the Vicinity of Lukeville, Arizona, on
    Drainage Systems and Infrastructure, Organ Pipe Cactus National
    Monument, Arizona. Department of the Interior. Prepared August 2008. P.
    9.

        Before CBP installed the barrier at Organ Pipe Cactus National
    ---------------------------------------------------------------------------
    Monument in 2008, NPS managers expressed the following concerns:

         ``The fence would impede the conveyance of floodwaters
                across the international boundary.''

         ``Debris carried by flash floods would be trapped by the
                fence, resulting in impeded flow and clean-up issues.''

         ``Backwater pooling would occur due to impeded flow.''

         ``Lateral flow due to backwater pooling would cause
                environmental damage as well as damage to patrol roads.''

         ``Significant increase in surface water depths (or rise in
                water elevation) would occur as a result of impeded flow,
                causing adverse affects on downstream and upstream
                resources and infrastructure in [the monument] and
                Mexico.'' \40\
    ---------------------------------------------------------------------------
        \40\ Ibid. P. 7.

        In response, CBP issued a Finding of No Significant Impact (FONSI)
    stating that the barrier would ``not impede the natural flow of
    water,'' and would be ``designed and constructed to ensure proper
    conveyance of floodwaters and to eliminate the potential to cause
    backwater flooding on either side of the U.S.-Mexico border.'' \41\
    ---------------------------------------------------------------------------
        \41\ U.S. Border Patrol, Tucson Sector. 2007. Final environmental
    assessment for the proposed installation of 5.2 miles of primary fence
    near Lukeville, Arizona. U.S. Border Patrol, Tucson Sector, Tucson,
    Arizona.

        CBP's predictions in the 2008 FONSI have turned out to be patently
    false. In an analysis of the flooding that occurred as a result of the
    ---------------------------------------------------------------------------
    border barrier in Organ Pipe Cactus National Monument, NPS stated:

            ``The pedestrian fence impeded the natural flow of water and
            did not properly convey floodwaters during the July 12 storm. .
            . Debris blockages formed at the upstream side of the fence,
            restricting water flow and causing significant water elevation
            rise. . . The foundation wall of the pedestrian fence stopped
            subsurface sediment flow, which added to the water elevation
            rise. Backwater flooding occurred in most washes.'' \42\
    ---------------------------------------------------------------------------
        \42\ National Park Service. 2008. Effects of the International
    Boundary Pedestrian Fence in the Vicinity of Lukeville, Arizona, on
    Drainage Systems and Infrastructure, Organ Pipe Cactus National
    Monument, Arizona. Department of the Interior. Prepared August 2008. P.
    4.

        The analysis determined that the barrier CBP installed did not meet
    the requirements set by the FONSI. As a result, NPS managers concluded
    that a host of short- and long-term impacts would continue to occur,
    resulting in damage to wildlife habitat, channel morphology, and NPS
    ---------------------------------------------------------------------------
    infrastructure, including:

         ``Accelerated scour below the pedestrian fence will damage
                the structural integrity of the vehicle barrier.''

         ``Floodwaters will flow laterally along the pedestrian
                fence and on the patrol road. These flows will result in
                erosion and scour above and below the foundation wall of
                the fence, including areas hundreds of feet outside
                existing drainage channels. As a consequence, the need for
                routine maintenance and repairs of the patrol road and
                vehicle barrier will increase.''

         ``The patrol road associated with the pedestrian fence
                will change vegetation in OPCNM by changing rainfall
                retention or runoff along the northern road edge.''

         ``Riparian vegetation will change in response to increased
                sedimentation.''

         ``Channel morphology and floodplain function will change
                over time.''

         ``Channelized waters will begin a gullying process that
                has the potential to transform land surfaces in the
                affected watersheds.'' \43\
    ---------------------------------------------------------------------------
        \43\ Ibid. P. 16.

        All of these concerns are clearly relevant to the proposed project
    at the San Pedro and in other locations where the barrier would cross
    streams and washes. None of these concerns have been addressed in CBP's
    notice to comment or phone/email conversations with CBP staff.
        The damage that ensued at Organ Pipe Cactus National Monument is a
    clear example of what happens when border barriers are constructed
    across washes without proper planning, outreach and study. We note that
    the San Pedro River has a consistent history of much larger flood
    events than have ever occurred at Organ Pipe Cactus National Monument.
    According to a Federal Emergency Management Agency Flood Insurance
    Study, the 100-year peak flow of the San Pedro River just north of the
    border is estimated to be 22,300 cfs.\44\ Climate change is increasing
    both the frequency and intensity of flood events, making the threat of
    flooding even more severe.
    ---------------------------------------------------------------------------
        \44\ Federal Emergency Management Agency Flood Insurance Study.
    2016. Cochise County and incorporated areas.
    ---------------------------------------------------------------------------
        No structure built in the San Pedro Floodplain would be able to
    withstand a flood event of this magnitude. Such a flood would result in
    a structural collapse of the barrier, causing a wall of water to flood
    into the SPRNCA and downstream. This would be devastating for wildlife
    habitat, local landowners, and State and County infrastructure. In
    2014, just north of the border, San Pedro floodwaters washed over
    Arizona State Route 92, causing road damage and forcing its
    closure.\45\ This occurred just 3 miles downstream of the proposed
    project area. If future floods are amplified and exacerbated by CBP's
    proposed project, as data indicate they would be, State Route 92 may be
    washed out entirely. Building a wall across the San Pedro could result
    in a life-threatening public safety risk. This warrants careful study,
    including third-party flood modeling and a transparent process where
    local and state agencies and the public can provide meaningful comment.
    Anything less would result in significant harm to the environment and
    public safety.
    ---------------------------------------------------------------------------
        \45\ Arizona Department of Emergency and Military Affairs. 2014.
    High water in San Pedro River closes SR 92 south of Sierra Vista.
    Accessed June 2019. https://ein.az.gov/emergency-information/emergency-
    bulletin/high-water-san-pedro-river-closes-sr-92-south-sierra-vista.
    ---------------------------------------------------------------------------
    Failure to Respect Tribal Sovereignty, Consult with Tribal Governments
        CBP has failed to meaningfully consult with tribal governments in
    the planning process, despite the clear harms the proposed border wall
    construction would cause to cultural resources, ancient traditions,
    tribal sovereignty, and modern indigenous communities. Executive Order
    13175 requires federal agencies to consult and collaborate with
    affected tribes on federal policies and actions that have a substantial
    direct effect on tribes in a ``government-to-government''
    relationship.\46\ In this case, it is clear that CBP has failed to
    consult with tribal governments, and specifically the Tohono O'odham
    Nation, as sovereign and coequal entities. This is unacceptable and
    must be addressed before the project moves forward.
    ---------------------------------------------------------------------------
        \46\ Executive Order 13175. 2000. Coordination and Consultation
    with Indian Tribal Governments. November 6, 2000.
    ---------------------------------------------------------------------------
        The Tohono O'odham people and their ancestors have inhabited lands
    from the Gila River area south to the Sea of Cortez for thousands of
    years. Tribal members have experienced the negative consequences of a
    border imposed upon them for generations. The Tohono O'odham
    Legislative Council passed a formal resolution opposing border wall
    construction on February 8, 2017.\47\ The resolution condemned the
    Trump administration's plans to build a border wall on the grounds that
    a wall would prevent Tohono O'odham members from making traditional
    border crossings for ceremonial and religious purposes, prevent
    wildlife from conducting migrations essential for their survival, and
    destroy saguaro cactus and other culturally significant plants, among
    many other reasons.
    ---------------------------------------------------------------------------
        \47\ Tohono O'odham Legislative Council. 2017. Resolution No. 17-
    053, Border Security and Immigration Enforcement on the Tohono O'odham
    Nation. February 8, 2017.
    ---------------------------------------------------------------------------
        The Tohono O'odham government has clearly and unambiguously
    objected to border wall construction, yet CBP has made no apparent
    effort to work with the tribe to remedy these concerns. Instead, the
    agency has elected to waive laws like the Native American Graves
    Protection and Repatriation Act, the American Indian Religious Freedom
    Act, the National Historic Preservation Act, and the Archeological
    Resources Protection Act in order to further strip away any abilities
    that the Tohono O'odham and other indigenous nations would normally
    have to protect their cultural resources, traditional heritage, and
    sovereignty.

        Federal agencies, including DHS, have a demonstrably poor track
    record when it comes to tribal consultation, even under normal
    circumstances where laws and guidelines are followed. A 2019 Government
    Accountability Office (GAO) report found that most government agencies,
    including DHS,

            ``do not adequately consider the tribal input they collect
            during tribal consultation when making decisions about proposed
            infrastructure projects. These comments included perceptions
            that agencies consult to `check a box' for procedural
            requirements rather than to inform agency decisions.'' \48\
    ---------------------------------------------------------------------------
        \48\ U.S. Government Accountability Office (GAO). 2019. TRIBAL
    CONSULTATION Additional Federal Actions Needed for Infrastructure
    Projects. GAO-19-22. March 2019. https://www.gao.gov/assets/700/
    697694.pdf.

        In this case, DHS has waived each and every law that sets
    requirements for tribal consultation, indicating that even the
    consultation requirements found inadequate by the GAO will not be
    adhered to. DHS's insistence on waiving laws that protect cultural
    resources and tribal sovereignty suggests that CBP has no interest in
    meaningful consultation with indigenous nations like the Tohono
    O'odham, and certainly does not view them as sovereign and coequal
    governments. This is extremely concerning as most of the land along the
    U.S.-Mexico border is traditional territory for myriad indigenous
    tribes, full of rich cultural resources and archeological records as
    well as modern tribal nations and communities. CBP's ongoing failure to
    properly consult with indigenous nations and insistence on waiving the
    laws that protect these communities will result in irreparable damage
    to cultural and archeological resources along the border and serious
    harm to the U.S. government's relationships with coequal indigenous
    nations.
        We are specifically concerned about the proposed project's clear
    potential to impact the Tohono O'odham's access to traditional lands
    and sacred sites, including tribal members' ability to conduct the
    ceremonial salt pilgrimage--an ancient ritual that, according to the
    O'odham, has occurred since time immemorial.\49\ The ceremonial salt
    pilgrimage passes through Organ Pipe Cactus National Monument and
    crosses the border near Quitobaquito Spring, where currently only
    vehicle barriers exist. If the proposed wall is constructed,
    participants would be forced to scale the wall, or to cross the border
    through a Port of Entry many miles away. The proposed project would
    place an extreme and unacceptable burden on ceremony participants and
    threaten the future of this ceremony that has occurred for millennia.
    ---------------------------------------------------------------------------
        \49\ Tohono O'odham Legislative Council. 2007. Resolution No. 07-
    714, Authorizing Delegation to Explore Means of Preserving Salt
    Pilgrimage Sites. November 9, 2007.

        In 2007, the Tohono O'odham Legislative Council passed a resolution
    affirming unlimited and unrestricted access to sacred sites in the U.S.
    and Mexico for traditional purposes like the ceremonial salt
    pilgrimage.\50\ Just weeks ago, in a direct response to CBP's proposed
    project, the Traditional O'odham Leaders of Sonora passed a resolution
    opposing border wall construction proposed by CBP on the grounds that
    it would threaten the future of the ceremonial salt pilgrimage. The
    resolution states:
    ---------------------------------------------------------------------------
        \50\ Tohono O'odham Legislative Council. 2007. Resolution No. 07-
    714, Authorizing Delegation to Explore Means of Preserving Salt
    Pilgrimage Sites. November 9, 2007.

            ``The ceremonial salt pilgrimage is a central part of the
            O'odham himdag that has occurred since time immemorial. The
            salt pilgrimage passes through lands now considered the Organ
            Pipe Cactus National Monument, the EI Pinacate-Gran Desierto de
            Altar Biosphere Reserve, and the Alto Golfo del California
            Biosphere Reserve. . . On May 15th, before consulting with the
            Tohono O'odham or obtaining approval from tribal leaders, the
            U.S. Department of Homeland Security issued a $646,000,000
            construction contract to build border walls through these
            areas. . . Building a border wall through Organ Pipe Cactus
            National Monument and Cabeza Prieta National Wildlife Refuge
            would cut across the route of the ceremonial salt pilgrimage
            and damage Quitobaquito spring, a sacred desert oasis used
            during the pilgrimage. The plans for a new wall would make it
            impossible to carry out the salt ceremony and threaten to end
            this sacred tradition forever.'' \51\
    ---------------------------------------------------------------------------
        \51\ Traditional O'odham Leaders of Sonora. 2019 Acta/Resolution
    passed June 16, 2019.

        The NPS has identified the ``Continuum of Human History'' as one of
    the five key ``Fundamental Resources or Values'' of Organ Pipe Cactus
    National Monument.\52\ The salt pilgrimage and continued use of
    Quitobaquito spring is specifically mentioned in the Monument's
    foundation document, which states ``many of the monument's cultural
    sites, objects, landscapes, and natural resources remain important
    touchstones that contribute to group identity and heritage.'' \53\ A
    2017 report by the NPS states: ``continued use of these lands for
    spiritual and cultural purposes should be celebrated as an implicit
    value to wilderness character; facilitating these uses should never be
    considered a burden.'' \54\ Ancestors of the Tohono O'odham have
    inhabited these lands and participated in rituals like the ceremonial
    salt pilgrimage for thousands of years. CBP's proposed project could
    recklessly put an end to this sacred ritual forever.
    ---------------------------------------------------------------------------
        \52\ National Park Service. 2016. Foundation Documents: Organ Pipe
    Cactus National Monument. Department of the Interior.
        \53\ Ibid. P. 6.
        \54\ National Park Service. 2017. Organ Pipe Cactus Wilderness:
    Wilderness Character Narrative and Baseline Monitoring Assessment,
    Building Blocks for Wilderness Stewardship. Department of the Interior.
    March 2017.
    ---------------------------------------------------------------------------
    Economic Harm to Local Economies

        CBP's proposed project would result in irreversible damage to the
    borderlands environment, public lands, and wildlife enjoyed by millions
    of visitors every year. The damage inflicted by this project would
    detract from visitor experiences in a multitude of ways including the
    visual scar caused by such a massive structure, the noise and pollution
    produced during construction, the light pollution detracting from dark
    night skies, and of course the myriad harms caused to wildlife species
    that so many visitors flock to Arizona's public lands to see. The
    proposed project would damage or destroy numerous renowned Arizona
    tourist destinations including two national monuments, two national
    wildlife refuges, several wilderness areas, and a national conservation
    area. Many of these areas have received federal protection through
    Congressional designation specifically because of their spectacular
    values as natural resources, wildlife habitat, and wild places for
    public enjoyment.
        According to the NPS, 260,000 people visited Organ Pipe Cactus
    National Monument in 2018, contributing $23.4 million dollars to the
    local economy and supporting 226 jobs.\55\ Coronado National Memorial
    also received significant public visitation with 103,000 visitors
    contributing $7.7 million and 92 jobs to the economy of the surrounding
    area.\56\ While data were not available for wildlife refuges and
    wilderness areas that would be harmed by this project, these federally
    protected public lands also receive significant visitation that
    bolsters local economies and creates sustainable jobs. Before CBP moves
    forward with planning or construction, the agency must conduct a full
    assessment of how the proposed project would harm local economies and
    eliminate long-term sustainable jobs.
    ---------------------------------------------------------------------------
        \55\ National Park Service. 2019. 2018 National Park Visitor
    Spending Effects: Economic Contribution to Local Communities, States,
    and the Nation--Organ Pipe Cactus National Monument. U.S. Department of
    the Interior. Natural Resource Report NPS/NRSS/EQD/NRR--2019/1922.
        \56\ National Park Service. 2019. 2018 National Park Visitor
    Spending Effects: Economic Contribution to Local Communities, States,
    and the Nation--Coronado National Memorial. U.S. Department of the
    Interior. Natural Resource Report NPS/NRSS/EQD/NRR--2019/1922.

    Broad Public Opposition to Border Walls in Arizona and throughout the
    ---------------------------------------------------------------------------
            Borderlands

        It is also important to note that the overwhelming majority of
    borderland residents, the majority of Arizonans, and 60% of the
    American public oppose the border wall.\57\ Opposition to the border
    wall in border communities is even higher than in the rest of the
    country, with polls showing that 72% of borderland residents oppose the
    border wall.\58\ In an explicit rejection of CBP's proposed border wall
    construction, 39 cities, counties, and tribal nations across the
    borderlands have passed ``No Border Wall'' resolutions.\59\
    ---------------------------------------------------------------------------
        \57\ CBS News. 2018. Americans Continue to Oppose U.S.-Mexico
    Border Wall: CBS News Poll. March 12, 2018.
        \58\ Cronkite News. 2016. Border Residents: Don't Build a Wall
    Between Cities. July 17, 2016.
        \59\ No Border Wall Coalition. 2018. The Opposition webpage.
    Accessed January, 2019. https://noborderwalls.org/opposition/.

        Many Arizona communities that would be harmed by the proposed
    project have already passed resolutions opposing the construction of
    more border walls including Pima County, the Tohono O'odham Nation, the
    Tohono O'odham Leaders of Sonora, the Inter Tribal Association of
    Arizona, the City of Tucson, and the Town of Patagonia. Each one of the
    39 resolutions in opposition of the border wall should be considered by
    CBP as statements of direct opposition to the proposed project and all
    ---------------------------------------------------------------------------
    other border wall construction projects.

        CBP often argues that the border wall will benefit border
    communities the most. If that were true, then it would be expected that
    border communities and their elected officials would support border
    wall construction. The broad and vocal opposition from border
    communities demonstrates a different reality. The unambiguous
    opposition to the border wall expressed by communities across the
    borderlands shows that border communities neither want nor need
    additional miles of border walls. CBP has continually attempted to
    paint border communities as unsafe places while claiming that the
    construction of border barriers will reduce crime. We remind CBP that
    crime rates in border communities are consistently lower than the
    national average.\60\
    ---------------------------------------------------------------------------
        \60\ CATO Institute. 2019. Crime Along the Mexican Border Is Lower
    Than in the Rest of the Country. January 8, 2019. https://www.cato.org/
    blog/crime-along-mexican-border-lower-rest-country.

        The opposition to border wall construction from local elected
    officials and the public at large reflects just how damaging this
    project would be to local communities. Every single Congressional
    Representative in the U.S. House with a district on the border has
    taken a formal stance against the border wall.\61\ This includes
    Congresspersons Raul Grijalva and Ann Kirkpatrick, who represent the
    districts where the proposed Arizona projects would take place. A
    Tucson City Council representative even submitted his own letter of
    opposition to the project calling alarm to the damage the proposed
    border walls would cause to southern Arizona's natural resources and
    ecotourism economy.\62\
    ---------------------------------------------------------------------------
        \61\ CBS News. 2019. Every congressperson along the southern border
    opposes border wall funding. Kate Smith. January 8, 2019. https://
    www.cbsnews.com/news/trumps-border-wall-every-congressperson-along-
    southern-border-opposes-border-wall-funding-2019-1-8/.
        \62\ Tucson City Council Ward 3 Representative Paul Durham. May 17,
    2019. Letter to U.S. Customs and Border Protection.
    ---------------------------------------------------------------------------
        The fact that CBP has made no effort to host public forums or
    conduct meaningful or bilingual public outreach suggests that CBP is
    making an intentional effort to suppress public input on this project.
    At a bare minimum, CBP must consult extensively with local communities
    by preparing a full EIS complete with public meetings and ample
    opportunities for the public and elected officials to understand the
    impacts and weigh in on the implications of the project before it moves
    forward in the planning process.

    Unproven Purpose and Need, Inefficacy of Border Barriers

        CBP's notice to comment fails to describe a purpose and need for
    the project and supplies no language as to why such an expensive and
    destructive project is necessary in the first place. We remind CBP that
    at this point in time, there is no conclusive data to suggest that
    border barriers actually reduce levels of undocumented border
    crossings. In fact, a 2017 GAO report noted that there is currently no
    way of documenting the role of border barriers in impeding border-
    crossers. The report recommended that CBP

            ``develop metrics to assess the contributions of pedestrian and
            vehicle fencing to border security along the southwest border
            and develop guidance for its process for identifying, funding,
            and deploying [Tactical Infrastructure] TI assets for border
            security operations.'' \63\
    ---------------------------------------------------------------------------
        \63\ U.S. Government Accountability Office. 2017. Southwest Border
    Security: Additional Action Needed to Better Assess Fencing's
    Contributions to Operations and Provide Guidance for Identifying
    Capability Gaps. GAO-17-331.

        Until CBP develops these metrics to assess the efficacy of border
    barriers, it is inappropriate to suggest that the deployment of
    additional border barriers will have any meaningful impact on border
    ---------------------------------------------------------------------------
    crossings.

        Border barriers block most species of animals, impede natural flows
    of water, and even alter plant dispersal, but there is no evidence they
    stop people from crossing. A 2014 study of activity around border
    barriers in natural areas showed that terrestrial mammals were found in
    higher numbers in locations where no border barriers were present. The
    authors, however, found no difference in the number of border-crossing
    humans detected between areas with and without barriers, suggesting
    that barriers are not effective at deterring migrants, but do affect
    wildlife populations.\64\
    ---------------------------------------------------------------------------
        \64\ McCallum J.W., J.M. Rowcliffe, I.C. Cuthill. 2014.
    Conservation on International Boundaries: The Impact of Security
    Barriers on Selected Terrestrial Mammals in Four Protected Areas in
    Arizona, USA. PLoS ONE 9(4): e93679. doi:10.1371/journal.pone.0093679.

        The 2017 GAO report that establishes CBP has not proven border
    barriers to be an effective means for deterring border crossings also
    sheds light on CBP's overarching tactics of border barrier construction
    and border militarization. The report outlines CBP's strategy of border
    wall construction as a tactic employed not necessarily to stop border
    crossings, but as an attempt ``to divert illicit cross-border
    activities into more remote or rural environments, where illegal
    entrants may require hours or days to reach the nearest U.S.
    ---------------------------------------------------------------------------
    community.''

        This tactic has proven ineffective at deterring border crossings.
    It has also led to the deaths of thousands of migrants who have been
    pushed into remote reaches of borderland deserts and perished in the
    elements while attempting to cross the border. CBP's own statistics
    show that more than 7,000 people have died crossing the border between
    1998 and 2017,\65\ though this count only reflects bodies that have
    been found by Border Patrol and therefore is widely considered to be
    much lower than the actual number of deaths.\66\
    ---------------------------------------------------------------------------
        \65\ U.S. Border Patrol. 2017. Southwest Border Deaths by Fiscal
    Year. Southwest Border Sectors.
        \66\ Ortega, Bob. 2018. Border Patrol Failed to Count Hundreds of
    Migrant Deaths on U.S. Soil. CNN Investigates. Tuesday May 15, 2018.
    https://www.cnn.com/2018/05/14/us/border-patrol-migrant-death-count-
    invs/index.html.

        From its conception, the construction of border barriers and
    militarization of border communities has been a part of a larger
    strategy to intentionally push border-crossers into remote desert
    environments where many die due to harsh conditions. This policy has
    led to a crisis of death and disappearance on our southern border.
    While it is unlikely that CBP's proposed project will actually deter
    border crossings, it is conceivable that new miles of border walls and
    increased border militarization could push migrants into harsher
    ---------------------------------------------------------------------------
    terrain and lead to their deaths.

    Environmental Justice

        Environmental justice is defined by the Environmental Protection
    Agency (EPA) as ``The fair treatment and meaningful involvement of all
    people regardless of race, color, culture, national origin, income, and
    educational levels with respect to the development, implementation, and
    enforcement of protective environmental laws, regulations, and
    policies.'' Executive Order 12898 directs that ``each Federal agency
    shall make achieving environmental justice part of its mission by
    identifying and addressing, as appropriate, disproportionately high and
    adverse human health or environmental effects of its programs,
    policies, and activities on minority populations and low-income
    populations.'' \67\
    ---------------------------------------------------------------------------
        \67\ Executive Order 12898, Federal Actions to Address
    Environmental Justice in Minority Populations and Low-Income
    Populations. 59 Fed. Reg. 32 (Feb. 16, 1994).

        Significant environmental justice concerns have already arisen in
    the planning process of the proposed project though CBP's failure to
    send notices in Spanish in an area where a significant portion of the
    public are Spanish-speaking. Failure to disseminate Spanish language
    notices suggests an intentional attempt to exclude and discriminate
    against the very populations that CBP is obligated to engage. For this
    and other projects, CBP should strive to actively engage all community
    members, regardless of race, culture, national origin, income and
    educational levels, and minimize impacts on marginalized populations in
    ---------------------------------------------------------------------------
    accordance with Executive Order 12898.

        We ask that the planning process for this project proceed no
    further until CBP can demonstrate that a meaningful and transparent
    effort has been made to obtain public comment from a wide range of
    community members, including minority and low-income populations, the
    neighboring Tohono O'odham Nation, and any other indigenous nations
    that have traditional claims within or near the proposed project area.
    Because vast portions of the project area are within traditional Tohono
    O'odham lands, CBP must work extensively with Tohono O'odham Nation in
    a coequal government-to-government relationship before breaking ground.

        CBP's proposed project will likely impact air and water quality of
    neighboring communities. The proposed project is of significant scale
    and will involve extensive concrete batching, heavy machinery
    operation, and severe ground disturbance, all of which would likely
    emit particulate dust and pollutants into air and water and endanger
    the health of neighboring communities. These public health hazards
    would adversely and disproportionately impact human health of minority,
    low-income, and indigenous populations in violation of Executive Order
    12898.

        We remind CBP that without the preparation of an EIS under NEPA it
    is impossible to fully understand and analyze the true public health
    and environmental justice implications of CBP's proposed project. There
    is a clear framework for assessing environmental justice impacts within
    the NEPA process. The completion of a NEPA-compliant EIS for the
    proposed project would illuminate these concerns, mitigate potential
    harms, and help inform the best path forward.

        DHS's use of the REAL ID Act Section 102 waiver to exempt itself
    from laws like NEPA, the Clean Water Act, the Clean Air Act, and others
    has denied residents in border communities the same critical public
    health and environmental protections that communities everywhere else
    in the nation receive as a basic right. The very purpose of these laws,
    and of Executive Order 12898, is to protect communities most at risk
    and ensure they receive the same protections and rights as all other
    Americans. Each time DHS chooses to issue a waiver, it is low-income
    minority populations who suffer the most. As such, the May 15, 2019
    waiver of 41 laws for this project is profoundly undemocratic and
    raises significant environmental justice concerns. In this and other
    projects, DHS must work to actively engage stakeholders and respect our
    nation's laws, rather than using expired provisions of the REAL ID Act
    to deny legal rights to low-income, minority, and indigenous
    communities.

    Conclusion

        We urge CBP to carefully review and respond to all concerns raised
    within this letter and to comply with all applicable federal laws
    before moving forward with the planning and execution of this project.
    As discussed above, we are extremely concerned that CBP is not
    conducting this project in compliance with NEPA or other relevant laws.
    CBP's vague and inadequate notice to comment, which was sent only to
    select individuals of the agency's choosing, is no substitute for
    meaningful public comment and is wholly inadequate to meet public
    consultation and informed decision-making requirements. Because of
    this, and the additional reasons detailed within the contents of this
    letter, CBP must cease all efforts toward constructing border barriers
    in Arizona until these numerous and significant issues are resolved.

                Sincerely,

            American Bird Conservancy     ProgressNow New Mexico

            Center for Biological
            Diversity                     Rachel's Network

            Coalicion de Derechos
            Humanos                       Southern Border Communities Coal.

            Colibri Center for Human
            Rights                        Sierra Club

            Defenders of Wildlife         Sky Island Lodge

            Great Old Broads for
            Wilderness                    Sky Island Alliance

            Green Valley/Sahuarita
            Samaritans                    Southwest Environmental Center

            Northern Jaguar Project       St. Francis in the Foothills

            National Parks Conservation
            Assoc.                        Tucson Audubon Society

            National Wildlife Refuge
            Association                   Wildlands Network

            Nuestra Tierra Conservation
            Project

                                     ______

                NATIONAL PARKS CONSERVATION ASSOCIATION

                                                           July 3, 2019

    U.S. Customs and Border Protection
    U.S. Border Patrol Headquarters
    1300 Pennsylvania Ave 6.5E Mail Stop 1039
    Washington, DC 20229

    Public Comment Re: Pima and Cochise Counties Border Infrastructure
            Projects

        Dear Customs and Border Protection:

        Since 1919, National Parks Conservation Association (NPCA) has been
    the leading voice in protecting and enhancing our National Park System.
    On behalf of our more than 1.3 million members and supporters
    nationwide, we write to express our concerns with U.S. Customs and
    Border Protection's (CBP) proposed border barrier project in Pima and
    Cochise Counties, especially related to Organ Pipe Cactus National
    Monument and Coronado National Memorial. These national parks are
    connected to the lands and communities that surround them, and the
    impacts of border activities must be considered comprehensively.
        Throughout the planning of this project, it has been clear that
    little to no consideration has been given to the government's
    responsibility to our national parks. Congress created the National
    Park Service (NPS) in 1916 with a stated purpose ``to conserve the
    scenery and the natural and historic objects and the wild life therein
    and to provide for the enjoyment of the same in such manner and by such
    means as will leave them unimpaired for the enjoyment of future
    generations.'' \1\ CBP's proposal to build an 18-to-30 foot bollard
    wall through nearly the entire border of Organ Pipe and a portion of
    Coronado undermines the mission and purpose of the NPS, and does so
    without providing the Park Service and the public with meaningful
    opportunities to engage in the planning process.
    ---------------------------------------------------------------------------
        \1\ 16 U.S.C. Sec. 1.
    ---------------------------------------------------------------------------
    Irreplaceable Natural and Cultural Resources
    Organ Pipe Cactus National Monument
        Organ Pipe Cactus National Monument was created in 1937 to protect
    its namesake plant and a scenic, biologically rich portion of the
    Sonoran Desert. The park is home to 31 species of cactus, multiple
    vulnerable endangered species and centuries of human history. But this
    unique landscape is also unnaturally bisected by border barriers.
    Vehicular barriers run along Organ Pipe's 30-mile border and five miles
    of 15-foot pedestrian wall flank the Lukeville Port of Entry.
        The construction of a 30-foot wall, along with associated roads,
    lights and clearing, across the entirety of this park landscape will be
    devastating to the ecosystem. Dozens of wildlife species would be
    unable to move freely through the landscape in search of food, water
    and mates. Among the wildlife that may be affected are bobcats,
    coyotes, endangered desert tortoises, javelinas and mountain lions.
    Endangered bats and migrating birds will be disrupted by the clearing
    around the wall, which will eliminate cover and create a place where
    predators can easily capture prey. The proposed bright lights, which
    will likely be on all night, may further disrupt bat migration and
    confuse other wildlife.
        These impacts will be felt across the park ecosystem, however one
    important location to note specifically is Quitobaquito Springs, a
    desert oasis near the border that hosts two endangered species, the
    Quitobaquito pupfish and Sonoyta mud turtle. While it is difficult to
    determine based on the basic map provided for this comment period, the
    expanded wall will likely be within a couple hundred feet of this pond,
    changing flood patterns in the area and damaging water quality. In the
    desert, water is critical and additional wall would prevent wildlife
    species from using a water source they have relied on for millennia.
        Together with neighboring Cabeza Prieta National Wildlife Refuge,
    Organ Pipe also provides habitat for the endangered Sonoran pronghorn.
    Over time, human activity shrunk and disturbed their habitat and then a
    drought in 2002 brought the population in the U.S. down to around 20
    individuals. A captive breeding program by the Fish and Wildlife
    Service has helped the population successfully rebound but the Sonoran
    pronghorn remains on the endangered species list.\2\ While border
    activities were not the sole reason for the species decline, increased
    activities or construction may lead to increased negative impacts on
    the recovery of the species. And a wall will cut the US population off
    from their counterparts on the Mexican side of the border.
    ---------------------------------------------------------------------------
        \2\ U.S. Fish and Wildlife Service, ``Sonoran pronghorn
    (Antilocapra americana sonoriensis).'' https://ecos.fws.gov/ecp0/
    profile/speciesProfile?sId=4750.
    ---------------------------------------------------------------------------
        In addition to the impacts on wildlife and the desert ecosystem, a
    wall through Organ Pipe will significantly degrade the visitor
    experience. A drive to Quitobaquito from Lukeville along the road that
    parallels the monument's southern border is now a pleasant outing
    through the rich Sonoran vegetation of the desert with occasional
    interesting sights of human activity in Mexico just across the border
    and continuous views of the protected desert mountains further south.
    To be flanked by a continuous 30-foot wall with 60 feet of scraped
    desert in front of it would be a whole different, and much degraded,
    experience. Rather than the rich, peaceful traditions embodied in the
    U.S. Mexico-border region, monument visitors will instead experience
    the militarization policies the current administration is pushing
    across the region. From the major campground in Organ Pipe, overnight
    visitors can see Lukeville and a long stretch of the border. In the
    future, this view will be obstructed by 30 feet of wall during the day
    and bright lights in the middle of the desert at night. In 2018, park
    visitation drove $16.2 million in spending on hotels, food and other
    amenities.\3\ Declines in visitor experience will drive these numbers
    down and certainly negatively impact the local economy.
    ---------------------------------------------------------------------------
        \3\ National Park Service, ``Visitor Spending Effects--Economic
    Contributions of National Park Visitor Spending.'' https://www.nps.gov/
    subjects/socialscience/vse.htm.
    ---------------------------------------------------------------------------
    Coronado National Memorial
        Coronado National Memorial was established to commemorate and
    interpret an expedition led by Francisco Vazquez de Coronado. The
    arrival of the expedition--with its contingents of Europeans, Aztecs,
    Franciscan monks, servants and slaves--forever changed the cultural
    landscape of northwestern Mexico and the American Southwest.\4\ The
    park preserves a portion of the landscape the expedition is thought to
    have crossed and works to help visitors understand how that history is
    still felt today. It is a story that our two countries experienced
    together, a common ground that the border wall cuts straight through.
    ---------------------------------------------------------------------------
        \4\ National Park Service, ``Coronado National Memorial.'' https://
    www.nps.gov/coro/learn/historyculture/index.htm.
    ---------------------------------------------------------------------------
        In addition to protecting part of our cultural heritage, Coronado
    provides habitat critical for the endangered jaguar.\5\ Sightings of
    the jaguar in the United States are rare. The bulk of the population is
    in Mexico and while some individuals have made their way into the U.S.
    on their own, all of them have been male. Those males will need to
    return to Mexico to breed until a female establishes herself on the
    U.S. side of the border. Existing border barriers increase the
    challenge of transiting between the two countries and additional
    barriers or border activity will only impede the jaguar population's
    migration back into the U.S.
    ---------------------------------------------------------------------------
        \5\ U.S. Fish and Wildlife Service, ``Jaguar (Panthera onca).''
    https://ecos.fws.gov/ecp0/profile/speciesProfile?sId=3944.
    ---------------------------------------------------------------------------
        Located 90 miles from the closest major airport in Tucson, Arizona,
    Coronado's 103,000 park visitors spent an estimated $6.1 million in the
    local region in 2018.\6\ A trip to this monument usually includes a
    stop at Montezuma Pass for the amazing views both east and west, views
    that are already compromised by the permanent Border Patrol activity at
    the pass and seeing the current barriers along the border. Continued
    expansion of the wall through the park will not only decrease its
    environmental and cultural character, it will further degrade these
    views and undermine the economic power of the park.
    ---------------------------------------------------------------------------
        \6\ National Park Service, ``Visitor Spending Effects--Economic
    Contributions of National Park Visitor Spending.'' https://www.nps.gov/
    subjects/socialscience/vse.htm.
    ---------------------------------------------------------------------------
    Environmental Damage without Proof of Success
        The existing pedestrian wall at Organ Pipe was supposedly designed
    to accommodate a 100-year flood and would not impede the natural flow
    of water or cause backwater flooding. In July 2008, the wall was put to
    the test. A summer storm delivered up to two inches of rain to the park
    in about 1.5 hours. According to the Park Service,\7\ this type of
    storm occurs every three to five years. Washes in the park drained
    directly into the border barriers. Silt and debris were caught by the
    wire mesh wall, resulting in high water marks up to seven feet,
    flooding of local businesses and a disturbed habitat once the
    floodwaters receded--all impacts the wall was designed to prevent.
    ---------------------------------------------------------------------------
        \7\ National Park Service. Effects of the International Boundary
    Pedestrian Fence in the Vicinity of Lukeville, Arizona, on Drainage
    Systems and Infrastructure, Organ Pipe Cactus National Monument,
    Arizona. Ajo, AZ: 2008. https://www.nps.gov/orpi/learn/nature/
    loader.cfm?csModule= security/getfile&PageID=2147897.
    ---------------------------------------------------------------------------
        NPS has been protecting the landscape at Organ Pipe for over 80
    years. They know this place intimately. They are the experts. And yet
    their expertise had no role in the major construction project along the
    park's border. If the Park Service had been consulted, CBP would likely
    have received accurate information about the frequency and magnitude of
    flooding that can occur in the desert and could have made smarter
    decisions about wall construction.
        Such interagency cooperation did not occur then and is unlikely to
    occur moving forward due to the waiver authority provided to the
    Department of Homeland Security (DHS) through the Real ID Act of 2005.
    This authority has prevented NPS, other federal land managers and the
    public from participating in decision-making processes for construction
    along the border. DHS has already chosen to waive 41 laws--including
    the NPS Organic Act--to expedite the current construction project,
    ensuring CBP is under no obligation to make decisions that consider the
    park and the impact on its ecosystem.
        While our public lands and local communities are feeling the
    impacts of wall construction, CBP cannot prove that building a wall is
    helping the agency achieve their mission. According to a 2017 GAO
    report, CBP does not have metrics to determine border fencing's impact
    on diverting illegal entries or apprehension rates over time.\8\ A more
    recent report from DHS states that while the department is working on
    new estimation strategies to better model the flow of immigrants across
    the border, those models are a work in progress.\9\ More wall in the
    region will exacerbate the environmental damage--and potentially do
    nothing to impact migration across the border.
    ---------------------------------------------------------------------------
        \8\ U.S. Government Accountability Office. SOUTHWEST BORDER
    SECURITY: Additional Actions Needed to Better Assess Fencing's
    Contributions to Operations and Provide Guidance for Identifying
    Capability Gaps. GAO-17-331. Published: February 2017. https://
    www.gao.gov/products/GAO-17-331.
        \9\ Department of Homeland Security. Efforts by DHS to Estimate
    Southwest Border Security between Ports of Entry. Published: September
    2017. https://www.dhs.gov/sites/default/files/publications/
    17_0914_estimates-of-border-security.pdf
    ---------------------------------------------------------------------------
        If CBP's aim is to combat drug smuggling into the United States, as
    is the rationale provided to the Department of Defense to justify the
    transfer of funds not authorized by Congress, then CBP should look to
    their fellow federal agencies for direction. According to the U.S. Drug
    Enforcement Administration, the most common method for transporting
    illicit drugs into the country is through official ports of entry.\10\
    CBP's effort would be better spent working with Congress to use our
    country's limited financial resources to address this root problem.
    ---------------------------------------------------------------------------
        \10\ U.S. Drug Enforcement Administration. 2018 National Drug
    Threat Assessment. Published: October 2018. https://www.dea.gov/
    documents/2018/10/02/2018-national-drug-threat-assessment-ndta.
    ---------------------------------------------------------------------------
    Inadequate Public Comment Process
        CBP provided a paragraph of information and three basic maps when
    requesting input on a project that will cause significant and lasting
    damage to two of our national parks. It is an insult to park visitors
    and American taxpayers that places that belong to all of us--equally
    and in perpetuity--can be so willfully disregarded. The ``comment
    period'' provided is clearly not intended to have any impact on project
    decisions, as laws were waived, contracts awarded and construction
    scheduled to start before the allotted 60-day comment period had
    passed.
        Government construction projects of this scope and scale anywhere
    else in the country would have been subject to safeguards like the
    National Environmental Policy Act (NEPA), which would have provided for
    a public input process and ensured alternatives were at least
    considered. Instead, the public does know not how tall the wall will
    be, how wide the road will be, how bright the lights will be or any
    other detailed information about the Pima and Cochise Counties'
    project. CBP has made it impossible for the public to provide
    meaningful, substantive feedback on this project by forcing the public
    to read between the lines.
        Public process and planning transparency would have given the
    government a chance to consider various alternatives, including the
    NEPA-required no-build alternative, and provided information about
    design improvements that would allow the project to be more responsive
    to on the ground conditions. For instance, perhaps the wall would an
    effective deterrent but better for wildlife passage if the space
    between the bollards were just a few inches wider than the current
    project allows. At special places like Quitobaquito, perhaps it would
    be possible to maintain operational control without the wall if
    coordination with Border Patrol surveillance and on-the-ground
    activities were considered. In addition, where gates will be
    constructed at washes and left open during times of likely flooding, it
    might be possible to leave the gates open at various other times as
    well to allow for wildlife migration. There are likely other
    improvements to consider, but because NEPA and public engagement were
    waived, these possibilities will never be considered.
    Conclusion
        Without question, border security is vital to our country, which is
    why it's so important we get it right. Our nation must look for
    solutions that are as unique as our landscapes and communities and
    ensure the solutions we find don't destroy the national treasures we've
    committed to protecting.
        CBP has provided no justification for why expanding the border wall
    at Organ Pipe Cactus National Monument, Coronado National Memorial and
    adjacent landscapes is an effective solution for addressing either
    migration or drug smuggling. Quite simply, a border wall is not the
    answer, for our national parks or our border communities.

        Thank you for considering our comments.

                Sincerely,

                                              Christina Hazard,
                       Associate Director, Wildlife & Natural Resources

                                     ______

                            Statement for the Record
      Congressman Greg Stanton, a Representative from the State of Arizona

        Thank you Chairman Gallego and Ranking Member Cook for allowing me
    to share my thoughts on the egregious behavior taking place on the
    Tohono O'odham Nation in Arizona.
        Congress passed the REAL ID law in 2005, and among its provisions
    was the ability for the Department of Homeland Security to waive ``all
    legal requirements'' when constructing walls and roads along the
    Southwest border. Under the REAL ID law, Customs and Border Protection
    is actively destroying parts of the Tohono O'odham Nation for the
    construction of a 30-foot wall. Earlier this year, CBP used explosives
    on Monument Hill in Arizona's Organ Pipe Cactus National Monument to
    begin wall construction. This is a burial site sacred to the Nation
    that dates back more than 10,000 years. For the Trump administration to
    treat it with such disregard shows the lengths this Administration is
    willing to go to fulfill a wasteful campaign promise.
        In 1853, the Gadsden Purchase established the current southern
    border, disregarding that it would split the Tohono O'odham Nation
    across Arizona and Mexico. The reservation now spans 2.8 million acres
    with 62 miles along the border. There are currently 34,000 enrolled
    members, with more than 2,000 residing in the Sonora, Mexico.
    Construction of a wall negatively affects the Tohono O'odham people in
    various ways. A wall would disrupt the natural flow of water from
    critical sources on the southern side of the border. A wall would be
    culturally devastating as well. Every year, members make a pilgrimage
    to Magdalena, Sonora to visit the statute of Saint Francis, the patron
    saint of animals and the environment. This wall would be so detrimental
    to the Tohono O'odham's way of life that earlier this month the
    Nation's Legislative Council issued a resolution in opposition to its
    construction. Listening to and respecting the concerns of the Tohono
    O'odham Nation is the right thing to do.
        The United Nations Educational, Scientific and Cultural
    Organization (UNESCO) created the Organ Pipe Cactus Biosphere Reserve
    in 1976 due to its ``unique resources representing a pristine example
    of an intact Sonoran Desert ecosystem.'' The UNESCO biosphere program
    was started ``with the intention to test and outline how humans can
    strike a balance among the apparently conflicting issues of conserving
    biological diversity, promoting economic and social development, and
    maintaining associated cultural values.'' By disrupting the environment
    to construct a wall, CBP is affecting thousands of wildlife species
    unique to the Sonoran Desert.
        On all accounts, this Administration is failing the UNESCO
    biosphere program's vision and failing the Tohono O'odham Nation. It is
    destroying Arizona's biological diversity and erasing the cultural
    values sacred to the Native Americans who lived on this land first. I
    am against the construction of a wall on the Tohono O'odham Nation's
    land and am encouraged to see this Committee holding a hearing on this
    issue. We must do everything in our power to prevent the destruction of
    our environment and most importantly, the indigenous lands in the
    United States.

                                     ______

                            Statement for the Record
                     SOUTHERN BORDER COMMUNITIES COALITION
                         by Vicki B. Gaubeca, Director
                                      and
                    Jennifer Johnson, Border Policy Advisor

    Introduction
        Formed in 2011, the Southern Border Communities Coalition (SBCC), a
    project of Alliance San Diego, brings together networks from San Diego,
    California, to Brownsville, Texas, to ensure that border enforcement
    policies and practices are accountable and fair, respect human dignity
    and human rights, and prevent the loss of life in the region.
        As the Administration continues to deploy a record level of
    enforcement resources to the southern border region, including
    unaccountable agents, active-duty military troops and National Guard,
    surveillance and military technologies befitting theaters of war,
    border communities suffer as these deployments and programs jeopardize
    their human and civil rights, cause irreparable harm to the surrounding
    environment and wildlife, and erode quality of life and public safety.
    This escalated militarization comes with little to no accountability
    and oversight, which leads to increased abuse and impunity at Customs
    and Border Protection (CBP), ultimately undermining the safety of
    border communities and the nation.
        The Administration has also developed and implemented increasingly
    reckless and harmful policies that have intensified the suffering
    experienced by refugees at our southern border. Asylum seekers are
    returned to often dangerous and untenable situations in Mexico to await
    their immigration hearings or are subjected to an intensely rushed
    process where they are denied meaningful access to protection. Other
    cruel deterrence practices include blocking entry at southern ports of
    entry by engaging in ``metering'' or ``wait-listing'' for people
    seeking safety; ripping children away from the arms of parents so
    parents can be prosecuted; holding refugees in unsanitary, overcrowded
    holding cages that are more akin to dog kennels; and threatening to
    deport millions of people without regard to the harm it will cause to
    families and entire communities.
        Of deep concern to border communities is the Administration's
    persistent and dangerous obsession with building a border wall by any
    means possible and with complete disregard to the profound and
    irreparable harms of the border wall on the borderlands, in part
    demonstrated by the Administration's repeated waiver of bedrock laws
    established by Congress to protect public health, the environment,
    wildlife, cultural/religious landmarks, and the U.S. taxpayer to
    expedite wall construction.
        While the Subcommittee is carrying out this important hearing, the
    Administration is actively causing devastation to the borderlands and
    southern border communities--blasting away sacred burial sites,
    bulldozing precious natural resources, and tearing land away from
    private landowners and ranchers to build an ineffective and lethal
    border wall.
        SBCC submits this statement to provide the Subcommittee with an
    analysis that includes the perspectives of borderland residents on how
    the Administration policies and practices have damaged the quality-of-
    life and eroded the civil rights of the more than 15 million people who
    call the southern border region home.
    Status of Border Wall Construction, Transfers, Waivers and Costs
        According to U.S. Customs and Border Protection (CBP),\1\ as of
    Jan. 24, 2019, there were 655 miles of primary barriers on the
    Southwest border, which included about 301 miles of pedestrian fencing
    and about 254 miles of vehicle barriers built before January 2017.
    About 99 miles of these primary barriers are new barriers built in
    place of dilapidated ones (i.e., replacement walls) and approximately 1
    mile of new border wall built in locations where no barriers previously
    existed. An additional 10 miles of new ``secondary'' border wall system
    have also been built since January 2017, bringing the total to 110
    miles.
    ---------------------------------------------------------------------------
        \1\ Customs and Border Protection. ``CBP/USACE Border Wall Status''
    (Jan. 24, 2020). Available at: https://cdn.factcheck.org/UploadedFiles/
    CBP-Border-Wall-Status-Paper_as-of-01242020-FINAL.pdf.
    ---------------------------------------------------------------------------
        The 115th and 116th Congress have appropriated a total of nearly
    $5.1 billion in fiscal years 2017, 2018, 2019 and 2020 to fund the
    construction of approximately 272 miles of new and replacement barriers
    along the Southern border. In addition to these funds appropriated by
    Congress, the Administration has gone to unprecedented lengths to
    unlawfully raid other agencies to access billions beyond what Congress
    has appropriated for the construction of more border wall.
        In Feb. 2019, following the longest government shutdown in history
    and Congress's rejection of President Trump's full funding request for
    more border wall in the Fiscal Year 2019 appropriations bill, the
    Administration brazenly declared in a press conference a dubious
    ``national emergency'' (and has blatantly admitted this as a mechanism
    to circumvent Congress) to divert $3.6 billion from the Department of
    Defense's (DoD's) 10 U.S.C. Sec. 2808 Military Construction funds
    (effectively halting 127 military construction projects) \2\ and $2.5
    billion from 10 U.S.C. Sec. 284 Counter-Narcotics funding to construct
    another 304 miles of new or replacement barriers. The Administration
    also tapped into another $600 million from the U.S. Treasury Forfeiture
    Fund. Both U.S. congressional chambers have voted and passed
    resolutions of disapproval against the Administration's declaration of
    a national emergency, but--to date--have failed to obtain a veto-proof
    majority.
    ---------------------------------------------------------------------------
        \2\ Sisk, Richard. ``Pentagon Releases List of Military
    Construction Projects Paused to Fund Border Wall'', Military.com (Sept.
    4, 2019) Available at: https://www.military.com/daily-news/2019/09/04/
    pentagon-releases-list-military-construction-projects-paused-fund-
    border-wall.html.
    ---------------------------------------------------------------------------
        In mid-January 2020, the Administration indicated its intent to
    circumvent Congress again and transfer $7.2 billion from DoD funding,
    including $3.7 billion from military construction and $3.5 billion from
    counter-narcotics funding, to build more border wall. On Feb. 13, 2020,
    the Administration notified Congress that it intends to transfer $3.8
    billion of DoD funds to erect another 177 miles of border barriers.
    These funds were originally appropriated by Congress in the Fiscal Year
    2020 budget to purchase new military aircraft, vehicles, and weapons.
        The Administration has also requested another $2 billion
    \3\,\4\ to build another 82 miles of border wall in the
    Fiscal Year 2021 budget.
    ---------------------------------------------------------------------------
        \3\ Kanno-Youngs, Zolan. ``What's in President Trump's Fiscal 2021
    Budget? Steep cuts to domestic programs and more resources for the
    military and policing the border with Mexico.'' New York Times (Feb.
    10, 2020) Available at: https://www.nytimes.com/2020/02/10/business/
    economy/trump-budget-explained-facts.html.
        \4\ DHS Fiscal Year 2021 Budget in Brief, Available here: https://
    www.dhs.gov/sites/default/files/publications/
    fy_2021_dhs_bib_web_version.pdf.
    ---------------------------------------------------------------------------
        Influenced by presidential election year politics, the
    Administration is eager and determined to fulfill an uninformed and
    costly campaign promise to build a border wall. Of course, we must
    recall that candidate Trump promised that Mexico would pay for the cost
    of its construction, not the U.S. taxpayer. Instead, he is devastating
    the border region by constructing a harmful, vanity wall bankrolled by
    the American taxpayer and circumventing Congress by seizing funds
    outside the appropriations process.
        Thus far, the price tag for this Administration's border wall is
    more than $11 billion--or nearly $20 million a mile--and growing. It is
    the most expensive wall of its kind anywhere in the world.\5\
    ---------------------------------------------------------------------------
        \5\ Burnett, John. ``$11 Billion And Counting: Trump's Border Wall
    Would Be The World's Most Costly,'' NPR (Jan. 19, 2020) Available at:
    https://www.npr.org/2020/01/19/797319968/-11-billion-and-counting-
    trumps-border-wall-would-be-the-world-s-most-costly.
    ---------------------------------------------------------------------------
        Ultimately the costs of building this wall will be exorbitant. In
    2018, the Government Accountability Office issued a report \6\ that
    suggested that there is no way to verify wall construction costs
    because estimates do not not fully account for varied, and sometimes
    extreme, terrain along the borderlands, and how this could play a role
    in costs. A minority report \7\ by the Senate Committee on Homeland
    Security and Governmental Affairs suggested the costs of building
    Trump's border wall could rise up to almost $70 billion, or more than
    $200 for every man, woman and child living in the United States.
    ---------------------------------------------------------------------------
        \6\ GAO. ``SOUTHWEST BORDER SECURITY. CBP Is Evaluating Designs and
    Locations for Border Barriers but Is Proceeding Without Key
    Information'' July 2018 Highlights of GAO-18-614, a report to
    congressional requesters. Available at: https://www.gao.gov/assets/700/
    693488.pdf.
        \7\ HSGAC Minority Report. ``Southern Border Wall: Soaring Cost
    Estimates and Lack of Planning Raise Fundamental Questions About
    Administration's Key Domestic Priority.'' (April 18, 2017). Available
    at: https://www.hsgac.senate.gov/imo/media/doc/Southern%20Border%20
    Wall%20-%20HSGAC%20Minority%20Report.pdf.
    ---------------------------------------------------------------------------
        Walls also cost billions of taxpayer dollars to maintain. No
    physical structure is immune to natural wear and tear caused by
    exposure to the elements over the years. The same minority report
    referred to above also estimated that maintenance costs, based on
    current costs of maintaining the wall, could reach $150 million a
    year--that's billions of more dollars needed that our children will
    have to pay for. This figure does not include the costs for repairing
    walls that have been breached or damaged by other causes.
        To facilitate the construction of the wall at the expense of border
    community members, the environment and wildlife, the Administration
    continues to interpret the Real ID Act as giving the Department of
    Homeland Security complete and unhindered discretion in waiving any
    U.S. laws that might interfere with the construction of border wall. As
    a result, almost 50 laws that were passed by Congress to protect the
    public from government overreach and protect our water, air,
    environment and rights have been waived, including the Native American
    Graves Protection and Repatriation Act, the American Indian Religious
    Freedom Act, the Religious Freedom Restoration Act, the National
    Environmental Protection Act, the Endangered Species Act, the Clean Air
    Act and the Safe Drinking Water Act.
        To further speed up the construction of the border wall in Arizona,
    California, New Mexico and Texas, the Administration recently waived
    Federal procurement statutes and regulations,\8\,\9\
    including requirements for open competition and justifying selections.
    ---------------------------------------------------------------------------
        \8\ Spagat, Elliot. ``Homeland Security waives contracting laws for
    border wall,'' Associated Press (Feb. 18, 2020). Available at: https://
    apnews.com/1689fa48a2e177d1f397b95ff0cb97db.
        \9\ Statutes and regulations include: 10 U.S.C. Sec. 2304; 10
    U.S.C. Sec. 2304c; 10 U.S.C. Sec. 2306a; 10 U.S.C. Sec. 2305(a)-(c),
    (e)-(f); Section 813 of Public Law 114-328, as amended by Section 822
    of Public Law 115-91; 15 U.S.C. Sec. 657q; 48 C.F.R. Sec. 17.205; 48
    C.F.R. Sec. 17.207; 10 U.S.C. Sec. 2305a(b)-(e); 48 C.F.R. Sec. 22.404-
    5; and 48 C.F.R. Sec. 28.102-1(c).
    ---------------------------------------------------------------------------
    Border Wall Harms
        The consequences and harms of building border walls have been
    profound to border communities, the environment and wildlife. Since
    1994, when the first wall was built near San Diego under Border
    Patrol's Operation Gatekeeper, the remains of more than 7,800 migrants
    have been found in remote areas of the southern border, including on
    the Tohono O'odham Nation and in rural areas near Falfurrias, Texas.
    However, not all remains are found, and experts estimate that this
    number reflects only a third of the estimated migrants who lost their
    lives attempting to cross the border.
        Border walls jeopardize tribal sovereignty. The Tohono O'odham
    Nation, whose ancestral lands straddle the U.S.-Mexico border, already
    have a physical barrier with a gate bisecting their nation. Most tribal
    members oppose replacing this physical structure \10\ with a wall,
    because it would interfere with their ability to cross into Mexico to
    connect with other tribal members for sacred ceremonies and visits.
    ---------------------------------------------------------------------------
        \10\ Nanez, Dianna M. ``The Wall: A border tribe, and the wall that
    will divide it'' USA Today. Available at: https://www.usatoday.com/
    border-wall/story/tohono-oodham-nation-arizona-tribe/582487001/.
    ---------------------------------------------------------------------------
        As noted by Ned Norris, Jr. , Chairman of the Tohono O'odham
    Nation, ``A wall is extremely expensive for the American taxpayer, is
    ineffective in remote geographic areas like ours, and is highly
    destructive to the religious, cultural and environmental resources on
    which our members rely and which make our ancestral lands sacred to our
    people. Ongoing construction of the wall already has and will continue
    to disturb and destroy culturally significant sites and cultural
    resources, tribal archeological resources, and sacred sites and
    desecrate human remains.'' \11\
    ---------------------------------------------------------------------------
        \11\ The Tohono O'odham Nation of Arizona Testimony of The
    Honorable Ned Norris, Jr., to the U.S. House Of Representatives
    Committee On Natural Resources, Subcommittee for Indigenous Peoples of
    the United States, Hearing On Destroying Sacred Sites And Erasing
    Tribal Culture: The Trump Administration's Construction of the Border
    Wall (Feb. 26, 2020) Available at: https://naturalresources.house.gov/
    imo/media/doc/SCIP%2002.26%20-%20Chairman%20Norris. pdf.
    ---------------------------------------------------------------------------
        Current and proposed land seizures for border wall construction
    have deeply harmed property owners on the U.S. side of the border. In
    Texas, the vast majority of land adjacent to the border is privately
    owned, so the Administration has resorted to condemnation lawsuits
    against private landowners in many of the poorest communities in the
    United States to take land for the border wall by force. Hundreds of
    private property owners have been forced to give up their homes,
    businesses, farms and ranches--some of whom have held these lands in
    their families for generations--through eminent domain seizures.
        In some cases, DHS has used `quick take' condemnations to take
    possession of private property and start wall construction even before
    just compensation has been determined and the property owner paid. In
    case after case, DHS has completely discounted the hardships that the
    border wall will bring to these landowners, to include (1) the
    devaluation of contiguous property and land left after the taking, (2)
    problems accessing land and homes behind a 30-foot wall built on top of
    a levee, and (3) the effects on livelihood as the result of a wall
    interfering with farming, ranching, and maintaining renters.
        Any kind of physical barrier at the U.S.-Mexico border also
    interferes with the migration patterns and access to food and water of
    wildlife--many of which are endangered and protected species, like the
    Mexican grey wolf, ocelot, bighorn sheep and jaguar. More than 2,500
    scientists from 43 countries signed on to a study that illustrates the
    harm to wildlife \12\ and the environment that would be generated by
    this Administration's border wall. Even birds will be affected, like
    the cactus ferruginous pygmy owl \13\ which cannot fly higher than 4.5
    feet and would be unable to clear Trump's proposed 18- to 30-foot wall.
    Every day now, we witness more miles of border walls built every day,
    laying waste to our environment and placing our endangered and
    protected species on a runaway train toward extinction.
    ---------------------------------------------------------------------------
        \12\ Javorsky, Nicole. ``Scientists Decry the Border Wall's Harm to
    Wildlife,'' City Lab (July 24, 2018). Available at: https://
    www.citylab.com/environment/2018/07/scientists-decry-the-border-walls-
    harm-to-wildlife/565913/.
        \13\ Knowles, Cybele. ``5 Animals Threatened by the Border Wall,''
    Medium (Feb. 22, 2017). Available at: https://medium.com/center-for-
    biological-diversity/5-animals-threatened-by-the-border-wall-
    3160a6bbfd85.
    ---------------------------------------------------------------------------
        Border walls and infrastructure have exacerbated flooding in
    Arizona and Texas, causing millions of dollars in damage to the
    environment and local businesses and endangering the lives \14\ of
    border residents and wildlife. In 2008, a year after a National Park
    Service report warned the DHS that the border wall would cause
    flooding, two people drowned in Nogales from flooding intensified by
    the wall along the Arizona/Sonora border.
    ---------------------------------------------------------------------------
        \14\ Sadasivam, Naveena. ``The US-Mexico border wall's dangerous,
    costly side-effect: enormous floods,'' Quartz, (Aug. 17, 2018).
    Available at: https://qz.com/1353798/the-us-mexico-border-walls-
    dangerous-costly-side-effect-enormous-floods/.
    ---------------------------------------------------------------------------
    Conclusion and Recommendations
        Not only is the construction of a border wall costly and harmful,
    it is also not supported by a majority of voters, including communities
    directly impacted by the wall. A recent survey by the University of
    California Immigration Policy Center showed almost 60% of registered
    voters in California, Arizona, New Mexico and Texas oppose any
    additional funding for border wall.
        The southern border region--home to about 15 million people--is a
    place of hope, encounter and opportunity. It is one of the most vibrant
    and diverse places in the country with deep cross-border ties from San
    Diego, CA to Brownsville, Texas.
        But instead of embracing our dynamic communities, for decades our
    border policies have cast aside human rights, criminalized migrants and
    engaged in deadly and unaccountable border enforcement, undermining
    public safety for all.
        It's time to rethink how we do border and push for a new vision
    \15\ that introduces a 21st century border governance model that
    expands public safety to all, creates a welcoming system for newcomers
    and residents, and protects human rights and life.
    ---------------------------------------------------------------------------
        \15\ Southern Border Communities Coalition. ``A New Border Vision''
    (May 2019) Available at: http://d3n8a8pro7vhmx.cloudfront.net/themes/
    5c8a803c4764e89849b5753e/attachments/original/1557787799/SBCC-NBV-
    H.pdf?1557787799.

        We urge this subcommittee to consider introducing a legislative
    ---------------------------------------------------------------------------
    initiative that would:

         Rescind the vast and arbitrary powers seemingly granted to
                the Department of Homeland Security to waive all legal
                requirements to construct the border wall and related
                infrastructure at the southern border.

         Prohibit the Administration's ability to transfer funds or
                access resources for border wall construction in violation
                of the appropriations process or congressional intent.

         Halt existing wall construction and terminate contracts
                funded by illegally transferred and seized funds.

         Hold this Administration accountable for its failure to
                comply with consultation requirements in border wall
                construction efforts, including government-to-government
                consultation with Tribal governments, and strengthen
                consultation mechanisms.

         Prohibit DHS from taking physical possession of any
                acquired land unless and until all persons entitled to
                compensation for such acquisition have been compensated in
                full, and the court proceedings described in 40 U.S.C. Sec.
                3114(a) have concluded and the case terminated.

         Identify and fund programs to address harms and provide
                reparations for landowners, communities and public and
                private lands harmed by border wall construction.

                                     ______

                     U.S. Customs and Border Protection
                                                Tucson, Arizona

                                                       January 10, 2020

    Ned Norris, Jr., Chairman
    Tohono O'odham Nation
    P.O. Box 837
    Sells, AZ 85634

        Dear Chairman Norris,

        Thank you for your letter dated November 13, 2019 following up on
    our October 25 conference call regarding the border barrier projects in
    U.S. Border Patrol's (USBP) Tucson Sector. We are aware of your
    concerns regarding the border barrier construction projects and
    potential affects to the Tohono Nation's ancestral lands. Dialogue with
    the Nation is important to us as we execute these critical border
    security projects. The paragraphs below address the concerns noted in
    your letter.
    IIRIRA Waiver for Tucson Sector Projects
        As you know, Congress has provided the Secretary of Homeland
    Security with numerous authorities necessary to carry out DHS's border
    security mission. One such authority is section 102 of the Illegal
    Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
    In section 102(a) of IIRIRA, Congress provided that the Secretary
    ``shall take such actions as may be necessary 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.'' In section 102(c) of IIRIRA, Congress granted the
    Secretary the authority to waive all legal requirements that the
    Secretary determines necessary ``to ensure the expeditious construction
    of barriers and roads'' authorized by section 102 of IIRIRA.
        Pursuant to those authorities, the Acting Secretary waived various
    laws for the construction of border barriers in the vicinity of the
    United States Border in Cochise County and Pima County, Arizona. The
    waiver was published in the Federal Register on May 15, 2019. See 84
    Fed. Reg. 21798.

        With respect to the geographic scope of the waiver at issue, it
    covers certain project areas that are described in the text of the
    waiver. The waiver states: ``the following areas in the vicinity of the
    United States border located in the State of Arizona within the United
    States Border Patrol's Tucson Sector, are areas of high illegal entry
    (the ``project areas''):

         Starting approximately one-half (.5) mile west of Border
                Monument 178 and extending east to Border Monument 162;

         Starting at Border Monument 100 and extending east for
                approximately one (1) mile;

         Starting at Border Monument 98 and extending east to
                Border Monument 97; and

         Starting approximately one-half (.5) mile west of Border
                Monument 83 and extending east to Border Monument 74.''

        Regarding the activities covered by the waiver, as noted above, in
    Section 102(c) of IIRIRA Congress authorized the Secretary to use the
    waiver authority to ``ensure the expeditious construction of barriers
    and roads'' authorized by section 102 of IIRIRA. To this end, in the
    May 15th waiver, the Acting Secretary specifically noted that the
    waiver would apply to the ``construction of physical barriers and roads
    (including, but not limited to, accessing the project areas, creating
    and using staging areas, the conduct of earthwork, excavation, fill,
    and site preparation, and installation and upkeep of physical barriers,
    roads, supporting elements, drainage, erosion controls, safety
    features, lighting, cameras, and sensors) in the project areas.''
        Taken together, this means that the laws set forth in the May 15th
    waiver are inapplicable to the construction of physical roads and
    barriers and/or activities that are undertaken in furtherance thereof,
    within project areas that are described in the waiver (areas in the
    vicinity of the border within the descriptions noted above).
        In light of the above, simply providing a map, as you requested,
    would not capture the scope or application of the waiver. To be sure,
    the waiver described the project areas where it is to be applied.
    However, the waiver does not cover each and every federal action that
    is undertaken within those project areas. Rather, as explained above,
    the waiver applies to the construction of barriers and roads and/or
    activities undertaken in furtherance thereof, within those projects
    areas. To this end, to aid in your understanding of the waiver and how
    it is applied, CBP has enclosed a map that shows the planned project
    corridors and planned access roads for the projects covered by the
    waiver at issue. Please note that, as with any construction project, it
    is possible that the project corridors and/or the access roads could
    change depending on various circumstances.
        When planning for projects covered under an environmental waiver,
    CBP remains committed to responsible environmental and cultural
    stewardship, as is the case with these border barrier projects. As part
    of its commitment, CBP conducts biological, cultural, and natural
    resource surveys of each project area. In addition, CBP coordinates and
    consults with Federal, State, and local agencies, Native American
    Tribes, and other interested stakeholders to obtain information about
    the possible presence of environmental and other sensitive resources
    that may be present in each project area. Specifically, CBP met with
    the Nation on May 15 and May 16, 2019 regarding the border barrier
    projects within the Tucson Sector area of responsibility. CBP develops
    site-specific construction best management practices to be implemented
    by the construction contractor and identifies design elements when and
    where possible that avoid or minimize environmental impacts to the
    greatest extent possible. Survey data and information received by CBP
    are used to prepare an Environmental Stewardship Plan (ESP) for each
    project, which includes an analysis of potential environmental impacts
    from the implementation of the project. The ESP for the border barrier
    projects in Tucson Sector will be available at the link below. https: /
    / www.cbp.gov / about / environmental-management-sustainability / cbp-
    environmental-documents. Finally, CBP is continuing to coordinate with
    the National Park Service (NPS) regarding the areas of concern noted in
    your letter. In many instances, cultural resource surveys indicated
    that resources were either outside the project area limits or not
    eligible for listing. For those resources that are found within the
    project, area limits CBP, as it has done in the past, will coordinate
    with federal managers and, wherever possible, take steps to avoid or
    minimize impacts to historic and cultural resources.
    Buffer Zone
        CBP considered your request for a buffer zone of at least one mile
    east and west of Quitobaquito, Las Playas, Pinta Sands, the Tinaja
    Atlas Mountains, the San Pedro River Riparian area, and the San
    Bernardino National Wildlife Refuge and determined that the proposed
    gaps do not meet USBP's operational requirements to secure these areas
    of the border. Regarding disturbances related to road widening, CBP
    completed environmental due diligence despite the waiver of
    environmental laws and conducted cultural site surveys of the
    construction area to include the Roosevelt Reservation, access roads,
    material laydown areas, and vehicle turn arounds prior to ground
    disturbance activities. CBP identified several previously recorded and
    new archaeological sites within and adjacent to the Roosevelt
    Reservation. CBP completed an evaluation of each site's eligibility for
    listing in the National Register of Historic Places (NRHP). Of the
    sites identified, CBP determined they could be avoided by construction
    activities or were not eligible for listing in the NRHP and no further
    investigative of data recovery actions were necessary. Further, per
    your request, CBP coordinated with the USACE to deploy additional
    cultural resource subject matter experts to the project area that will
    provide additional monitoring. CBP also acknowledges and is considering
    the Nation's request for CBP to retain the Nation's tribal monitors for
    border barrier projects. In the interim, the Nation is welcome to
    coordinate with CBP and USACE to be present during border barrier
    construction activities.
    Groundwater Use
        With regard to your request to stop using groundwater, CBP
    coordinated with the NPS and the U.S. Fish and Wildlife Service (USFWS)
    to evaluate potential groundwater impacts to the springs at
    Quitobaquito. Based on this coordination, CBP, NPS, and USFWS agreed
    that the construction contractor would not use or drill new wells
    within five miles of either side of Quitobaquito Springs. The NPS is
    currently monitoring water levels at Quitobaquito to evaluate and
    identify significant changes in water levels. CBP is coordinating with
    NPS to continue this monitoring effort upon completion of NPS' initial
    activities. The construction contractor will continue to use
    groundwater in other areas of the project. The amount of water required
    will vary throughout the project and will depend on a number of factors
    such as final design specifications, dust control requirements, among
    other considerations. CBP and USACE continue to coordinate with USFWS
    to evaluate potential impacts to groundwater from the implementation of
    the project. CBP will monitor groundwater levels in existing wells and
    ponds and implement additional measures as needed.
    Wildlife Crossings
        Regarding your request to include large gaps to allow the movement
    of wildlife across the border, CBP worked with USFWS to identify and
    develop design elements that support both wildlife migration and border
    security that include implementing strategically placed passages to
    allow cross-border migration of small animals. CBP considered the
    placement of additional gaps for large mammals; however, these openings
    do not meet the operational requirements of USBP and compromise our
    efforts to patrol and secure these areas of the border.
    Consultation
        Moving forward, CBP recognizes the value of frequent communication
    between the Nation and USBP Tucson Sector leadership to discuss border
    barrier projects and other border security matters. Regular meetings
    with communities, districts and Nation leadership regularly inform
    Tucson Sector on tribal concerns about USBP operations and tactics in
    the Tucson Sector area of operations. From past meetings, Tucson Sector
    and the Nation have been able to deploy ten Integrated Fixed Towers
    along the U.S.-Mexico border, numerous rescue beacons and have started
    a road repair project on Federal Route 21. These projects were able to
    be accomplished by working closely together. USBP and CBP also recently
    conducted a site visit on December 11, 2019 to consult with
    representatives from the Nation to discuss concerns and potential
    strategies to address issues regarding border barrier projects. This
    meeting was specific to Monument Hill and we were able to hear the
    concerns from the Nation's Tribal Historic Preservation Officer. In
    addition to local efforts, CBP benefits from periodic meetings between
    CBP headquarters' leadership and the Nation's Chairman, Vice
    Chairwoman, members of the Legislative Council, and other tribal
    representatives. Regrettably, one such meeting was recently canceled at
    the request of the Nation, but we look forward to scheduling another
    meeting in the near future. Continuing this dialogue and communication
    will allow for Tribal voices and concerns to be heard at all levels of
    USBP and CBP.
        CBP hopes to continue the partnership your predecessor, Edward
    Manuel, established with us by routinely meeting with CBP senior
    leadership. These government-to-government engagements were an
    important opportunity to discuss topics of vital mutual interest
    including USBP operations on the Nation's land, border security, and
    border infrastructure projects. In an effort to assure continued and
    contemporary information, I suggest we establish a reoccurring
    teleconference to provide regular construction schedule updates and
    ensure continued dialogue throughout the project.
        I want to ensure you that CBP appreciates and values our continued
    partnership across all levels within the agency. We are committed to
    continued dialogue to keep you and other representatives from the
    Nation updated on the Tucson Sector border barrier projects as we
    continue to consider and address your concerns where and when possible.
        Thank you again for your feedback and we look forward to meeting
    with you soon.

                Honor First,

                                              Roy D. Villareal,
                                                   Chief Patrol Agent
                                                    Tucson Sector Chief

    Enclosure [MAP] (see below)

                  [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                     U.S. CUSTOMS AND BORDER PROTECTION

                                                      February 24, 2020
                                                 Contact: Tucson Sector
                                                  Public Affairs Office
                                                         (520) 748-3210
                                                    TCA-PAO@CBP.DHS.GOV
                                                            www.cbp.gov

                                 MEDIA ADVISORY

    Monument Hill Controlled Detonation and Briefing

    TUCSON, Ariz.--Tucson Sector Border Patrol, in collaboration with the
    Army Corps of Engineers and contracted border wall personnel (to
    include subject matter experts) are providing members of select
    credentialed media an opportunity to view a controlled detonation
    occurring on Monument Hill during border wall construction.

    Credentialed media I.D. will be verified upon entrance to the below
    location.
    This event features a briefing from USACE and USBP personnel. Media
    will be transported to a viewing area within the construction site,
    located a safe distance from where the charges are set to detonate.
    Long focal length lenses are recommended. Subject matter experts will
    be onsite and available to answer questions and provide interviews upon
    request.

    Dress appropriately and wear closed-toe footwear suitable for a desert
    environment. Cell phone coverage may be sporadic in this area. Expect
    the event to finish around 1 p.m.

    Date & Time:  Wednesday, February 26, 2020, at 10 a.m. Sharp

    Location:  Army Corps of Engineers Construction Site Headquarters, Mile
    post 79 on the east side of State Route 85

    RSVP Required:  Please email TCA-PAO@cbp.dhs.gov to R.S.V.P. no later
    than close of business Tuesday, February 25, 2020.

    --CBP--

    U.S. Customs and Border Protection is the unified border agency within
    the Department of Homeland Security charged with management, control
    and protection of our n ation's borders at and between official ports
    of entry. CBP's mission includes keeping terrorists and terrorist
    weapons out of the country while enforcing hundreds of U.S. laws.
    Follow us on Twitter @CBPArizona.

                                     ______

    Border fence construction could destroy archaeological sites, National
    Park Service finds

    The Washington Times

    September 17, 2019 by Juliet Eilperin and Nick Miroff

    Bulldozers and excavators rushing to install President Trump's border
    barrier could damage or destroy up to 22 archaeological sites within
    Arizona's Organ Pipe Cactus National Monument in coming months,
    according to an internal National Park Service report obtained by The
    Washington Post.

    The administration's plan to convert an existing five-foot-high vehicle
    barrier into a 30-foot steel edifice could pose irreparable harm to
    unexcavated remnants of ancient Sonoran Desert peoples. Experts
    identified these risks as U.S. Customs and Border Protection seeks to
    fast-track the construction to meet Trump's campaign pledge of
    completing 500 miles of barrier by next year's election.

    Unlike concerns about the barrier project that have come from private
    landowners, churches, communities and advocacy groups, these new
    warnings about the potential destruction of historic sites come from
    within the government itself.

    The National Park Service's 123-page report, obtained via the Freedom
    of Information Act, emerges from a well-respected agency within the
    Interior Department as the Department of Homeland Security and the
    White House push ahead with their construction plans. While the
    government scrambles to analyze vulnerable sites as heavy equipment
    moves in, the administration also faces external challenges seeking to
    block the use of eminent domain to seize land, as well as lawsuits
    asking courts to halt work in and around wildlife refuges and other
    protected lands.

    New construction began last month within the Organ Pipe Cactus National
    Monument, an internationally recognized biosphere reserve southwest of
    Phoenix with nearly 330,000 acres of congressionally designated
    wilderness. The work is part of a 43-mile span of fencing that also
    traverses the adjacent Cabeza Prieta National Wildlife Refuge.

    With the president demanding weekly updates on construction progress
    and tweeting out drone footage of new fencing through the desert,
    administration officials have said they are under extraordinary
    pressure to meet Trump's construction goals.
    The Department of Homeland Security has taken advantage of a 2005 law
    to waive several federal requirements--including the Archaeological
    Resources Protection Act, the National Historic Preservation Act and
    the Endangered Species Act--that could have slowed and possibly stopped
    the barrier's advance in the stretch in Arizona.

    Some archaeological features along the border already have suffered
    damage as Border Patrol agents zoom through in pursuit of migrants and
    smugglers in all-terrain vehicles, according to federal officials and
    two experts who have conducted research in the region.

    Environmental groups have fought unsuccessfully to halt construction in
    protected areas, arguing that more-imposing barriers could disrupt
    wildlife migration and threaten the survival of imperiled species.

    But there has been little mention of the potential damage to
    archaeological sites, where stone tools, ceramic shards and other pre-
    Columbian artifacts are extremely well-preserved in the arid
    environment. Desert-dwelling peoples have populated the area for at
    least 16,000 years, particularly around the oasis of Quitobaquito
    Springs in the national monument, one of the few places where the
    Quitobaquito pupfish and the endangered Sonoyta mud turtle still live
    in the wild.

    The oasis was part of a prehistoric trade route, the Old Salt Trail,
    where northern Mexican commodities including salt, obsidian and
    seashells were plentiful, according to the Park Service. The traders
    were followed by Spanish missionaries, Western settlers, and other
    travelers and nomads who came to drink.

    The springs and surrounding desert wetlands are just 200 feet from the
    border, where crews plan to bring in heavy earth-moving equipment to
    install the giant steel barriers. Scientists have raised concerns that
    the springs could dry up if crews pump ground water from the area for
    the barrier's concrete base.

    CBP officials said the agency has looked at ``most'' of the
    archaeological sites identified in the Park Service report and found
    just five that are within the 60-foot-wide strip of federal land on the
    U.S. side of the border where the government will erect the structure,
    an area known as the Roosevelt Reservation, which was set aside along
    the border in California, Arizona and New Mexico. Of those five,
    officials said, one had a ``lithic scatter''--remnants of stone tools
    and other culturally relevant artifacts.

    Construction crews do not yet have a plan to begin work at that
    location, CBP officials said, noting that the agency has had
    discussions with the Park Service about collecting and analyzing
    fragments of historic significance from that site.

    ``We've been working very closely with the park,'' said a CBP official,
    who spoke on the condition of anonymity to discuss the administration's
    plan for building near archaeological sites along the border.

    The officials said they have not delayed or otherwise altered their
    construction plans to conduct more detailed surveys or excavations in
    the area.

    Officials said crews with earth-moving equipment have started
    installing barriers in a two-mile section east of the border crossing
    at Lukeville, Ariz., a particularly busy stretch for illegal crossings.

    CBP officials acknowledged that trucks and earth-moving equipment
    driving through the fragile desert risk harming sites outside the
    specific construction zones. The officials said they are following Park
    Service guidance as to where workers can drive.

    President Trump has declared an emergency at the border. This photo
    shows why a wall won't stop asylum seekers from flooding into the
    United States.

    With CBP, the U.S. Army Corps of Engineers and their construction
    contractors under pressure from the White House, federal land in the
    West has become the easiest place to quickly add fencing. There are few
    private landowners in the desert terrain outside Texas, and it is a far
    easier place to build than along the winding riverbanks of the Rio
    Grande.

    At least a dozen Native American tribes claim connections to the lands
    within the Organ Pipe Cactus National Monument, especially near
    Quitobaquito. They include the Tohono O'odham Nation, which used to
    inhabit a large swath of the Sonoran Desert and whose reservation lies
    north and east of the park's boundaries. Members of the nation--who
    have revived the practice of following the Old Salt Trail--have
    protested the idea of any new construction in an area once inhabited by
    their ancestors, the Hohokam, who lived there between 200 and 1,400
    A.D.

    Tohono O'odham Nation Chairman Ned Norris Jr. said his tribe remains
    opposed to any new border fence construction.

    ``We've historically lived in this area from time immemorial,'' he
    said. ``We feel very strongly that this particular wall will desecrate
    this area forever. I would compare it to building a wall over your
    parents' graveyards. It would have the same effect.''

    Rick Martynec, an archaeologist who is conducting volunteer surveys of
    sites within the Cabeza Prieta National Wildlife Refuge along with his
    wife, Sandy, said researchers have not had time to properly evaluate
    the area now targeted for construction.

    ``Quitobaquito, as we know it, may be destroyed before anyone has had a
    chance to evaluate the consequences of the current actions,'' Martynec
    said. ``What's the rush?''

    He noted that relevant sites within the monument ``include evidence of
    hunting, farming and home sites'' along with ``historic cemeteries.''
    He added that the adjacent wildlife refuge has other archaeological
    artifacts, including a rare intaglio figure spanning several hundred
    yards that was probably created for a ritual.

    The Martynecs were doing research in the refuge at one point and saw a
    Border Patrol agent on a four-wheeler motoring up a road on which the
    agency was not authorized to drive, ``right over a huge roasting pit''
    used by an ancient community, he recalled. They later checked to see if
    an incident report had been filed--as would be required if the agency
    was traversing that land--but none had been, Martynec said.

    In the Park Service report summarizing the results of a survey of 11.3
    miles along the U.S.-Mexico border, the agency's archaeologists note
    that previous research had ``identified and recorded 17 archaeological
    sites which likely will be wholly or partially destroyed by forthcoming
    border fence construction.'' The park experts, who conducted their
    survey in June, identified five more archaeological sites that also
    would be imperiled and would deserve to be protected by a National
    Register of Historic Places designation.

    The report notes that staffers were unable to complete a survey of the
    entire length of the U.S. side of the border that lies within the
    monument's boundaries. Park Service archaeologists plan to survey
    another 1.7-mile section of the park's southern border later this
    month.

    Kevin Dahl, Arizona senior program manager for the National Parks
    Conservation Association, said that under normal circumstances, the
    agency would take steps to protect archaeological sites under its
    purview, including a lengthy excavation process if necessary.

    CBP has announced plans to complete this section of barriers through
    the national monument by January. Those plans call for new fencing in
    five or six ``non-contiguous areas,'' including places within the
    monument where the archaeological sites are found, agency officials
    said. The sections of new barrier are not necessarily contiguous
    because the terrain might be too steep or mountainous to install a
    single, unbroken span of fencing.

    The project within the monument includes a new steel bollard fence
    running continuously for 9.1 miles, reinforced with an 8- to 10-foot-
    deep concrete-and-steel foundation.

    ``Archaeology takes time, and they have a deadline,'' Dahl said,
    referring to CBP. ``Putting a wall there is insane. This is just one
    more reason why ramming this wall through, using illegal,
    unconstitutional money, is damaging to these public resources. We're
    destroying what the wall is supposed to protect.''

    National Park Service spokesman Jeremy Barnum said the agency's mission
    ``is to preserve unimpaired the natural and cultural resources and
    values of the National Park System for the enjoyment, education, and
    inspiration of this and future generations.'' But he noted that some of
    the parks along the U.S.-Mexico border have been subjected to ``cross-
    border illegal activities'' and that the agency has coordinated with
    the Department of Homeland Security to address the issue.
    In 2002, a park ranger at Organ Pipe was shot and killed as he pursued
    members of a drug cartel hit squad who had fled to the United States
    from Mexico. The Park Service closed more than half the monument to the
    public the following year but reopened it entirely in September 2014.

    ``The National Park Service appreciates the role of an integrated
    border security approach and values the ongoing interagency efforts to
    address the multidimensional issue,'' Barnum said.

    An archaeologist working for a CBP contractor, Northland Research, is
    on site every day when crews are working on the barrier fence,
    according to federal and tribal officials. The firm referred requests
    for comment to the government agency.

                                     [all]