[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.
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    \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 
[email protected] 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.
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    \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.
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    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.
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    \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).
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    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\
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    \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).
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    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.
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    \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.
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    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.
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    \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\
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    \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.
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    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\
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    \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).
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    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\
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    \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.
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    \21\ GAO-18-537.
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    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\
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    \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).
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    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\
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    \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\
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    \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).
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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.
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    \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.
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    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\
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    \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).
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    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.
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    \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\
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    \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.
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    \10\ 16 U.S.C. Sec. 1531(c)(1).
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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:
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    \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\
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    \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.
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    \13\ National Park Service. 2015. Draft National Park Service Air 
Quality Analysis Methods. Air Resources Division, September 2015. 
Department of the Interior. Lakewood, Colorado.
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    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\
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    \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.
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    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\
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    \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.
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    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.
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    \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.
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    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.
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    \21\ Ibid. P. 19.
    \22\ Ibid. P. 6.
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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\
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    \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].
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    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.
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    \26\ Bethel, Megan. 2019. Sky Island Alliance's Border Camera 
Summary. Sky Island Alliance.
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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.
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    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.
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    \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].
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    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\
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    \32\ Ibid. P. 16.
    \33\ Sky Island Alliance 2019. Unpublished research.
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    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\
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    \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\
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    \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\
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    \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.
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    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.
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    \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\
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    \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\
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    \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 
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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\
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    \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.
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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\
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    \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.
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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.
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    \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\
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    \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\
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    \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\
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    \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 
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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\
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    \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\
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    \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 
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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\
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    \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.
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    \1\ 16 U.S.C. Sec. 1.
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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.
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    \2\ U.S. Fish and Wildlife Service, ``Sonoran pronghorn 
(Antilocapra americana sonoriensis).'' https://ecos.fws.gov/ecp0/
profile/speciesProfile?sId=4750.
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    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.
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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.
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    \4\ National Park Service, ``Coronado National Memorial.'' https://
www.nps.gov/coro/learn/historyculture/index.htm.
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    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.
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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.
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    \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.
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    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
                                                [email protected]
                                                        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 [email protected] 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.

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