[Senate Report 114-150]
[From the U.S. Government Publishing Office]


                                                      Calendar No. 243
114th Congress     }                                    {       Report
                                 SENATE
  1st Session      }                                    {      114-150
______________________________________________________________________



          ARIZONA BORDERLANDS PROTECTION AND PRESERVATION ACT

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                         WITH ADDITIONAL VIEWS

                              to accompany

                                 S. 750

TO ACHIEVE BORDER SECURITY ON CERTAIN FEDERAL LANDS ALONG THE SOUTHERN 
                                 BORDER

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                October 1, 2015.--Ordered to be printed
                
                                   ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

59-010                         WASHINGTON : 2015                
                
                
                
                
                
                
                
                
                
                
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio                    CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky                  JON TESTER, Montana
JAMES LANKFORD, Oklahoma             TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming             HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire          CORY A. BOOKER, New Jersey
JONI ERNST, Iowa                     GARY C. PETERS, Michigan
BEN SASSE, Nebraska

                    Keith B. Ashdown, Staff Director
                  Christopher R. Hixon, Chief Counsel
             David S. Luckey, Director of Homeland Security
       William H.W. McKenna, Chief Counsel for Homeland Security
     Brooke N. Ericson, Deputy Chief Counsel for Homeland Security
              Gabrielle A. Batkin, Minority Staff Director
           John P. Kilvington, Minority Deputy Staff Director
               Mary Beth Schultz, Minority Chief Counsel
               Holly A. Idelson, Minority Senior Counsel
     Stephen R. Vina, Minority Chief Counsel for Homeland Security
                     Laura W. Kilbride, Chief Clerk
                     
                     
                     
                     
                     
                     
                     
                     
                     
                     
                     
                                                      Calendar No. 243
114th Congress     }                                    {       Report
                                 SENATE
  1st Session      }                                    {      114-150

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



 
          ARIZONA BORDERLANDS PROTECTION AND PRESERVATION ACT

                                _______
                                

                October 1, 2015.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 750]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 750) to achieve 
border security on certain Federal lands along the Southern 
border, having considered the same, reports favorably thereon 
with an amendment in the nature of a substitute and recommends 
that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................6
 IV. Section-by-Section Analysis......................................6
  V. Evaluation of Regulatory Impact..................................7
 VI. Congressional Budget Office Cost Estimate........................7
VII. Changes in Existing Law Made by the Bill, as Reported............8
VIII.Additional Views.................................................9


                         I. PURPOSE AND SUMMARY

    The purpose of S. 750, the Arizona Borderlands Protection 
and Preservation Act, is to enhance border security on certain 
Federal lands along the southwest border. This bill seeks to 
provide U.S. Customs and Border Protection (CBP) personnel with 
faster access to Federal lands in the Tucson and Yuma Border 
Patrol sectors for border security activities, including 
routine motorized patrols and the deployment of communications, 
surveillance, and detection equipment. The bill also requires 
the Government Accountability Office (GAO) to conduct a review 
and complete a report considering how this access has affected 
border security activities and the natural, cultural, and 
historic resources of Federal and Indian lands, as well as a 
sector-by-sector analysis of the probable impact if such access 
was expanded to other sectors.

              II. BACKGROUND AND THE NEED FOR LEGISLATION

    Various Federal land agencies have different missions, 
guidelines, and management plans regarding CBP access to 
Federal land under their respective jurisdictions, which has 
historically slowed or impeded some efforts by CBP--or its 
predecessor agency--to conduct border security operations on 
such land.\1\ Border Patrol agents can generally enter Federal 
lands in ``hot pursuit'' of suspected illegal entrants, but 
typically need permission for activities such as routine 
patrols, road building or to install surveillance equipment.\2\
---------------------------------------------------------------------------
    \1\E.g., Gov't Accountability Office, GAO-11-38, Southwest Border: 
More Timely Border Patrol Access and Training Could Improve Security 
Operations and Natural Resource Protection on Federal Lands 22 (2010) 
[hereinafter 2010 GAO Report], available at http://www.gao.gov/
new.items/d1138.pdf (``Patrol agents-in-charge of 17 of 26 stations 
along the southwestern border reported that they have experienced 
delays and restrictions in patrolling and monitoring portions of 
federal lands because of various land management laws.'').
    \2\See Memorandum of Understanding Among U.S. Department of 
Homeland Security and U.S. Department of the Interior and U.S. 
Department of Agriculture Regarding Cooperative National Security and 
Counterterrorism Efforts on Federal Lands along the United States' 
Border 6 (2006) [hereinafter 2006 Memorandum of Understanding].
---------------------------------------------------------------------------
    In 2006, in an attempt to resolve ongoing conflicts between 
Federal land managers and CBP over access to Federal lands, the 
U.S. Department of Homeland Security (DHS), the U.S. Department 
of the Interior (DOI), and the U.S. Department of Agriculture 
(USDA) entered into a Memorandum of Understanding (MOU) 
concerning border security operations on Federal lands.\3\ 
However, as discussed further below, some Border Patrol agents-
in-charge believe the MOU continues to allow for undue delays 
and impediments for routine access that threaten the security 
of our border.\4\ This bill seeks to provide Border Patrol with 
prompt access to Federal lands in the Tucson and Yuma Border 
Patrol sectors for a range of activities. The bill would remove 
or limit the authority of Federal land managers at USDA and DOI 
to conduct certain reviews or set conditions related to CBP 
access to Federal lands. While CBP would remain subject to the 
mandates of the National Environmental Policy Act (NEPA), the 
Wilderness Act, the Endangered Species Act, and any other 
environmental or cultural protection law, CBP personnel will 
now have immediate access to Federal lands for border security 
activities.
---------------------------------------------------------------------------
    \3\Id.
    \4\2010 GAO Report, supra note 1, at 22-33.
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                  A. APPLICATION TO THE WILDERNESS ACT

    Section 4(c) of the Wilderness Act prohibits the 
construction of temporary roads or the use of motorized 
vehicles or equipment within a congressionally-designated 
``Wilderness Area,'' except in emergency situations involving 
health and safety.\5\ The 2006 MOU makes clear that CBP can use 
vehicles inside a Wilderness Area routinely, but such access is 
limited to pre-approved administrative roads.\6\ The MOU 
permits off-road access inside a Wilderness Area only in 
emergency circumstances or after a written request and 
agreement with the relevant land manager, subject to terms and 
conditions that the land manager may require.\7\ If a dispute 
persists, the MOU outlines a process for line officers to 
elevate the matter to regional and national managers for 
resolution, if necessary.\8\
---------------------------------------------------------------------------
    \5\16 U.S.C. Sec. Sec. 1131-1136(4)(c) (2014).
    \6\2006 Memorandum of Understanding, supra note 2, at 4-5.
    \7\Id.at 5.
    \8\Id. at 3.
---------------------------------------------------------------------------
    In 2010, the GAO reviewed this issue and found that even 
with the 2006 MOU in place, the patrol agents-in-charge at 
three key CBP stations reported that the Wilderness Act 
continues to hamper their agents' abilities to access portions 
of Federal land.\9\ GAO also found examples of the U.S. Forest 
Service requiring, as a condition for access, that CBP fund a 
portion of its road maintenance needs.\10\
---------------------------------------------------------------------------
    \9\2010 GAO Report, supra note 1, at 28.
    \10\Id. at 20.
---------------------------------------------------------------------------
    In 2014, CBP, in its Fiscal Year 2014 Arizona Corridor 
Campaign Plan, cited vehicular access as an impediment to 
securing the border, stating:

          [T]he vast and remote area of the Cabeza Prieta 
        National Wildlife Refuge and Organ Pipe National 
        Monument aids criminals in their efforts to avoid law 
        enforcement personnel. The National Park Service has 
        restricted vehicular traffic in these areas, citing 
        wildlife preservation and environmental reasons. Agents 
        are forced to take long detours, severely impacting 
        response times, as well as crippling effectiveness. Ajo 
        Station uses the Horse Patrol Unit to work in these 
        restricted areas. The generally flat terrain 
        facilitates rapid travel for illicit activities.\11\
---------------------------------------------------------------------------
    \11\U.S. Customs and Border Protection, Fiscal Year 2014 Arizona 
Corridor Campaign Plan, Joint Field Command 83-84 (2013).

    S. 750 will ensure that DOI and USDA cannot delay or 
specify the terms and conditions under which CBP can conduct 
border security operations inside Wilderness Areas within the 
specified portions of the Tucson and Yuma Border Patrol 
sectors.

     B. APPLICATION TO ENVIRONMENTAL AND HISTORIC PRESERVATION ACTS

    Before land managers can grant permission for temporary 
road construction or installing surveillance equipment, they 
must complete environmental and historic property assessments, 
as required by the National Environment Policy Act (NEPA)\12\ 
and the National Historic Preservation Act (NHPA).\13\ Reliance 
on Federal land managers to complete these assessments can 
create delays that compromise border security.
---------------------------------------------------------------------------
    \12\42 U.S.C. Sec. 4321 et seq. (Pub. L. No. 91-190).
    \13\16 U.S.C. Sec. 470 (Pub. L. No. 89-665).
---------------------------------------------------------------------------
    A 2011 GAO Report entitled Southwest Border: Border Patrol 
Operations on Federal Lands (the 2011 GAO Report) found that 14 
of the 26 Border Patrol stations along the southwest border 
report interruptions in operations because of the time it took 
land managers to complete NEPA and NHPA assessments.\14\
---------------------------------------------------------------------------
    \14\Gov't Accountability Office, GAO-11-573T, Southwest Border: 
Border Patrol Operations on Federal Lands 10 (2011), available at 
http://www.gao.gov/assets/130/126072.pdf.
---------------------------------------------------------------------------
    GAO provided one example where CBP waited four months for 
land managers to approve the relocation of a mobile 
surveillance system to a different location.\15\ By the time 
the land manager completed the NEPA and NHPA assessments, the 
illegal traffic had shifted to another area.\16\ Moreover, 
during this delay, CBP had limited ability to detect 
undocumented aliens within a seven-mile range that could have 
been covered by the mobile surveillance system.\17\ GAO 
concluded that the particular Federal land management unit had 
limited staff and resources which delayed the CBP request.\18\
---------------------------------------------------------------------------
    \15\Id. 
    \16\Id.
    \17\Id.
    \18\Id. at 10-11.
---------------------------------------------------------------------------
    Under NEPA, a Federal agency is required to consider and 
publically disclose significant environmental impacts of a 
proposed agency action and evaluate alternatives.\19\ In some 
cases, it is determined that an Environmental Impact Statement 
(EIS) is required, meaning the agency believes there will be a 
significant environmental impact that warrants greater 
study.\20\ An EIS can take years, many work hours, and millions 
of dollars depending on the level of analysis and the potential 
for, or realized litigation by, environmental groups.\21\
---------------------------------------------------------------------------
    \19\U.S. Department of the Interior Bureau of Land Management, H-
1790-1, National Environmental Policy Act Handbook 2 (2008) 
[Hereinafter NEPA Handbook].
    \20\Id.
    \21\See Gov't Accountability Office, GAO-14-369, National 
Environmental Policy Act: Little Information Exists on NEPA Analyses 
(2014), available at http://www.gao.gov/assets/670/662546.pdf.
---------------------------------------------------------------------------
    In addition, when a Federal project involves multiple 
Federal agencies, a secondary agency may be elevated in the 
NEPA process to one of the following statuses: (1) joint lead 
agency, where the second Federal agency shares the lead 
agency's responsibility for management of the NEPA process, 
including public involvement and drafting documents; or (2) 
cooperating agency, in which the second Federal agency has 
jurisdiction by law or special expertise, and wants a decision-
making role in the NEPA process.\22\
---------------------------------------------------------------------------
    \22\NEPA Handbook, supra note 19, at 111-12.
---------------------------------------------------------------------------
    Under S. 750, DOI and USDA could no longer assert itself as 
the lead, joint, or cooperating agency in a NEPA analysis 
related to border security activities. Instead, CBP would 
perform environmental and other clearances, but would not be 
precluded from setting its own terms and conditions for 
inviting DOI and USDA to serve as a cooperating or joint lead 
agency.

              C. APPLICATION TO THE ENDANGERED SPECIES ACT

    Under Section 7 of the Endangered Species Act (ESA), CBP 
must consult with the U.S. Fish and Wildlife Service (USFWS) to 
ensure that border security operations do not jeopardize 
endangered species.\23\ This process is commonly referred to as 
``Section 7 consultation.''\24\ Adding land managers to the 
consultation process can impair border security activities.
---------------------------------------------------------------------------
    \23\16 U.S.C. Sec. 1536 (Pub. L. No. 93-205).
    \24\U.S. Fish and Wildlife Service, Section 7 Consultation, 
available at http://www.fws.gov/Midwest/endangered/section7/
section7.html.
---------------------------------------------------------------------------
    The 2011 GAO Report found that five Border Patrol stations 
reported that prolonged Section 7 consultation has changed the 
timing and location of ground and air patrols due to the 
presence of sensitive endangered species.\25\ GAO cited one 
example of a land manager padlocking gates to roads located 
inside San Bernardino National Wildlife Refuge because the road 
crosses a portion of an endangered species habitat.\26\ The 
gates are only opened on a case-by-case basis at the discretion 
of the land manager.\27\ By contrast, the Bureau of Land 
Management grants the CBP routine access, provided that CBP 
directly engages in Section 7 consultation with USFWS.\28\
---------------------------------------------------------------------------
    \25\2010 GAO Report, supra note 1, at 31.
    \26\Id. at 32-33.
    \27\Id.
    \28\Id. at 38 n.31.
---------------------------------------------------------------------------
    Under S. 750, the CBP must still comply with the ESA and 
participate in recovery plans. Informal and formal Section 7 
consultation would occur directly between CBP and USFWS but 
would not involve the land manager.

            D. APPLICATION TO USE PERMITS AND AUTHORIZATIONS

    In general, CBP must obtain permission or a permit from 
Federal land management agencies before building temporary 
roads or installing surveillance equipment on Federal lands. In 
2010, GAO found that ``patrol agents-in-charge for 14 of the 17 
stations reported that they have been unable to obtain a permit 
or permission to access certain areas in a timely manner 
because of how long it takes for land managers to conduct 
required environmental and historic property assessments.''\29\
---------------------------------------------------------------------------
    \29\Id. at 22.
---------------------------------------------------------------------------
    GAO noted that while the 2006 MOU helped to advance 
cooperation between the agencies in some cases, ``such 
cooperation has not always occurred.''\30\ For example, GAO 
cited a case where CBP needed to improve a road to allow a 
truck to move an underground sensor, but the Federal land 
agency took eight months performing a historic property 
assessment.\31\
---------------------------------------------------------------------------
    \30\Id. at 23.
    \31\Id. at 24.
---------------------------------------------------------------------------
    Under S. 750, DOI and USDA could not require the CBP to 
obtain a Special Use Permit for border security activities that 
require access to Federal land.

    E. APPLICATION TO TRIBAL CONSULTATION AND NATIVE AMERICAN LANDS

    Issues concerning tribal government consultation and access 
to Indian lands were not directly reviewed in the 2010 or 2011 
GAO Reports. In general, CBP is required to consult with Indian 
tribes on border security operations on Indian lands under 
Section 106 of the NHPA\32\ and Executive Order 13175 
(Consultation and Coordination with Indian Tribal 
Governments).\33\
---------------------------------------------------------------------------
    \32\
    \33\
---------------------------------------------------------------------------
    Under S. 750, CBP must still comply with existing tribal 
consultation policies under NHPA and Executive Order 13175.

                        III. LEGISLATIVE HISTORY

    Senators John McCain and Jeff Flake introduced S. 750 on 
March 17, 2015, and the bill was referred to the Committee on 
Homeland Security and Governmental Affairs on March 17, 2015. 
The Committee considered S. 750 at a business meeting on May 6, 
2015.
    During the business meeting, Senator McCain offered a 
substitute amendment that clarified that S. 750 applied to CBP 
activities in the Tucson and Yuma sectors within 100-miles from 
the border with Mexico, included a provision that the Secretary 
of Homeland Security shall make efforts to protect the natural 
and cultural resources on Federal lands, and made a technical 
correction. The McCain Substitute Amendment was adopted by 
unanimous consent with Senators Johnson, McCain, Portman, 
Lankford, Ayotte, Ernst, Sasse, Carper, Tester, Baldwin, 
Heitkamp, and Peters present.
    Senators Heidi Heitkamp and Tom Carper also offered an 
amendment during the business meeting. The proposed Heitkamp-
Carper amendment would: sunset the increased access to Federal 
lands in four years; require GAO to complete a comprehensive 
report that would describe the impact of the increased access, 
make recommendations on how best to improve the existing MOUs 
between DHS, DOI, and USDA, and analyze the need for increased 
access across the entire U.S. land border; and strike the 
bill's definition of ``border security.''
    After significant debate on the amendment by the Members, 
particularly with regard to the definition of ``border 
security,'' Senators Heitkamp and Carper agreed to modify their 
amendment. The modified amendment retained the four-year sunset 
originally proposed, but modified the required GAO report and 
amended, rather than deleted, the definition of ``border 
security.'' The Committee adopted the Heitkamp-Carper amendment 
as modified by voice vote, with Senators Johnson, McCain, 
Portman, Lankford, Ernst, Sasse, Carper, Tester, Baldwin, 
Heitkamp, and Peters present. Senator Tester was recorded as 
voting ``no.'' The Committee ordered the bill reported 
favorably, as amended by the McCain Substitute Amendment and 
the Heitkamp-Carper Amendment as modified, by voice vote, with 
Senators Johnson, McCain, Portman, Lankford, Ernst, Sasse, 
Carper, Tester, Baldwin, Heitkamp, and Peters present.

        IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED

Section 1. Short title

    This section provides the bill's short title, the ``Arizona 
Borderlands Protection and Preservation Act.''

Section 2. Definitions

    This section defines ``border security'' as ``the 
functioning and operational capability to conduct continuous 
and integrated manned or unmanned monitoring, sensing, or 
surveillance of 100 percent of Southern border mileage within 
the Tucson and Yuma sectors or the immediate vicinity of the 
Southern border within the Tucson and Yuma Sectors; and the 
apprehension or turn back of illegal entries across the 
Southern border in the Tucson and Yuma sectors.''
    This section also defines ``Federal lands'' to be those 
lands within 100 miles of the international border between the 
United States and Mexico that are within the Tucson and Yuma 
sectors.

Section 3. Support for border security needs

    Subsection (a) requires the Secretaries of Agriculture and 
the Interior to provide CBP personnel with immediate access to 
Federal lands for border security activities including routine 
motorized patrols and the deployment of communications, 
surveillance, and detection equipment. The Secretary of the 
Interior and/or Secretary of Agriculture may provide CBP 
personnel training on the natural and cultural resources on 
Federal lands. Outside of border security activities, CBP must 
continue to comply with existing laws with respect to 
environmental reviews or other requirements.
    In conducting these border security activities, CBP 
personnel must also take steps, the maximum extent practicable, 
to protect natural and cultural resources.
    This subsection does not apply to any private or state-
owned land and will sunset four years after the date of 
enactment.

Section 4. Report

    Not later than 90 days before the four-year sunset, GAO 
shall submit a report to the appropriate congressional 
committees that includes: an analysis of the effectiveness and 
impact of such access on border security activities and the 
natural and cultural resources on impacted Federal lands; an 
assessment of the 2006 MOU; and a sector-by-sector analysis of 
the expected impact of applying the requirements of the bill to 
the entire land border of the United States, as well as the 
impact of illegal traffic on wildlife and natural, cultural, 
and historic resources on Federal lands.

                   V. EVALUATION OF REGULATORY IMPACT

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

                                                     June 15, 2015.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 750, the Arizona 
Borderlands Protection and Preservation Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Jeff LaFave 
and Mark Grabowicz.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

S. 750--Arizona Borderlands Protection and Preservation Act

    Based on information provided by the affected agencies, CBO 
estimates that implementing S. 750 would cost $1 million over 
the 2016-2019 period, assuming the availability of appropriated 
funds. Because enacting the bill would not affect direct 
spending or revenues, pay-as-you-go procedures do not apply.
    The bill would require the Secretaries of Agriculture and 
the Interior to grant Customs and Border Protection (CBP) 
personnel immediate access to federal lands in Arizona within 
100 miles of the United States-Mexico border. That requirement 
would end four years after enactment of the legislation. The 
bill also would authorize the Secretaries to provide education 
and training to CBP personnel related to natural and cultural 
resources in the affected areas. Finally, the bill would 
require the Government Accountability Office (GAO) to study the 
effectiveness of actions taken under the bill and the effects 
of illegal human traffic on natural, cultural, and historic 
resources on federal lands.
    An existing memorandum of understanding between the 
affected agencies allows CBP personnel access to the affected 
federal lands and provides for certain training activities 
involving those agencies. Thus, CBO estimates that carrying out 
activities required under the bill that directly relate to 
border enforcement would have a minimal effect on the 
operations of the affected agencies and would not affect the 
federal budget.
    Based on information regarding the cost of similar 
activities and assuming the availability of appropriated funds, 
CBO estimates that GAO would spend $1 million over the 2016-
2019 period to conduct the study required under the bill. Those 
amounts would be used to cover personnel and travel costs 
associated with the study.
    S. 750 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contacts for this estimate are Jeff LaFave 
and Mark Grabowicz. The estimate was approved by H. Samuel 
Papenfuss, Deputy Assistant Director for Budget Analysis.

       VII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    Because this legislation would not repeal or amend any 
provision of current law, it would make no changes in existing 
law within the meaning of clauses (a) and (b) of paragraph 12 
of rule XXVI of the Standing Rules of the Senate.

                         VIII. ADDITIONAL VIEWS

                              ----------                              


           ADDITIONAL VIEWS ON S. 750 FILED BY SEN. HEITKAMP

    The Federal government has a unique trust responsibility, 
treaty obligations, and other requirements it must uphold when 
interacting with our nation's Indian tribes--in particular, as 
it concerns Federal laws or regulations that could or will 
impact Indian lands. These obligations and responsibilities do 
not cease or change from state-to-state. They guide any federal 
interaction with tribes or proposed actions that could impact 
Indian tribes or Indian lands--regardless of location. It is 
imperative the Federal government's fiduciary responsibility to 
tribes, which is built on the government-to-government 
relationship and respect for tribal sovereignty, is not only 
maintained and protected, but strengthened through mechanisms 
such as ongoing, timely and meaningful tribal consultation. As 
such, the Senate must always carefully consider anything that 
could diminish the federal responsibility or impinge upon a 
tribe's sovereign rights.
    The committee report accompanying S. 750 is misleading in 
its discussion of how S. 750 does or could impact U.S. Customs 
and Border Protection (CBP) access to Indian lands--and does 
not adequately address meaningful consultation requirements in 
relation to access to Indian lands. Section 3 of S. 750--the 
portion of the bill addressing CBP access to Federal lands--
does not apply to Indian lands. As such, Section II(E) of the 
Committee Report is not applicable to CBP access to Indian 
lands, and thus, shall extend no additional rights to any 
agency of the Federal government that would look to gain access 
to Indian lands under S. 750 and should not be misconstrued as 
reflecting the understanding of all Committee members who 
considered this bill.
    Section 2 of S. 750 is the definitions section of the bill 
and defines several terms in the underlying bill--including 
``Federal lands.'' It defines ``Federal lands'' as ``all land 
under the control of the Secretary concerned . . .'' with the 
``Secretary concerned'' defined to include both the Secretaries 
of Agriculture and Interior. A cursory search of legislation 
would show that if legislation is intended to include Indian 
lands, then the term ``Indian lands'' will be explicitly 
referenced in the plain language of the legislation--and 
oftentimes further defined in a definitions section. The term 
``Indian lands'' is not defined in Section 2 of S. 750, nor is 
it explicitly used anywhere in Section 3 of the bill when 
discussing lands to which this Section will apply. If Section 3 
was meant to include access to Indian lands, the term would 
have been explicitly used and/or defined in the appropriate 
sections. I therefore find that no reasonable reading of 
Section 3 of S. 750 would find that Indian lands were meant--or 
are--to be included in lands for which Section 3 is applicable.
    Section 4 of S. 750 offers additional clarity in this 
matter. In the requirement to do a sector-by-sector analysis of 
the impact of increased access for CBP border security 
activities, there is a clear statement that GAO should analyze 
how these activities would impact natural, cultural and 
historic resources on Federal and Indian lands. Section 4 
clearly demonstrates that the drafters of this bill understand 
the need to explicitly identify Indian lands as unique and 
distinct when delineating which lands this Section is 
applicable, demonstrating a clear distinction between Federal 
and Indian lands. This plain reading of the legislative 
language suggests that no reasonable reading of this bill could 
be seen to include Indian lands within the definition of 
``Federal lands'' in Section 2 or that Section 3 would be 
applicable to Indian lands. As a further note, the ``Purpose 
and Summary'' section of the committee report also references 
only Federal lands--thereby also failing to illustrate an 
explicit intent for Indian lands to be a necessary focus of the 
underlying bill.
    I would not support S. 750 if Section 3 of the bill--
providing CBP immediate and increased access to Federal lands--
was construed to include Indian lands. This would be an affront 
to tribal sovereignty and the ability of the Federal Government 
to uphold its trust responsibility to Indian tribes. This bill 
does not provide such access to Indian lands as currently 
written. As such, it was necessary I clarify and emphasize that 
point.

                                                    Heidi Heitkamp.

           ADDITIONAL VIEWS ON S. 750 FILED BY SENATOR TESTER

    In order to ensure the security or trade and migration into 
the United States, interagency cooperation is a key component. 
In order to better facilitate a cooperative environment that 
allows law enforcement agencies along the United States border, 
a 2006 memorandum of understanding (MOU)\1\ was reached between 
the Secretaries of Homeland Security, the Interior, and 
Agriculture, in order to provide uniform principles that guide 
their respective agencies' activities on Federal lands. While 
not perfect, this guidance has provided a useful means by which 
U.S. Border Patrol is enabled access to public lands for law 
enforcement purposes--by-and-large without delay.
---------------------------------------------------------------------------
    \1\Memorandum of Understanding Among U.S. Department of Homeland 
Security and U.S. Department of the Interior and U.S. Department of 
Agriculture Regarding Cooperative National Security and 
Counterterrorism Efforts on Federal Lands along the United States' 
Border 6 (2006).
---------------------------------------------------------------------------
    The committee report for S. 750 uses Government 
Accountability Office (GAO) reports to provide justification 
for the bill. For example, on pages 4 and 5 of the committee 
report, the Endangered Species Act (ESA) is cited as impeding 
timely access for Border Patrol agents by stating that: ``The 
2011 GAO Report\2\ found that five Border Patrol stations 
reported that prolonged Section 7 consultation has changed the 
timing and location of ground and air patrols due to the 
presence of sensitive endangered species.'' Yet, a GAO report 
upon which this report (testimony) is based, later states that 
``although some delays and restrictions have occurred, Border 
Patrol agents were generally able to adjust their patrols with 
little loss of effectiveness in their patrol operations.''\3\ 
Further, the committee report omits mention of the 2010 GAO 
findings that: ``Although 4 agents-in-charge reported that 
delays and restrictions have affected their ability to achieve 
or maintain operational control, they either have not requested 
resources for increased or timelier access or have had their 
requests denied by senior Border Patrol officials, who said 
that other needs were more important.''\4\
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    \2\This is a misattribution. This is in fact, testimony of Anu 
Mittal, Director of Natural Resources and Environment, Government 
Accountability Office Before the Subcommittee on National Parks, 
Forests, and Public Lands, Committee on Natural Resources, and the 
Subcommittee on National Security, Homeland Defense, and Foreign 
Operations, Committee on Oversight and Government Reform, House of 
Representatives, April 15, 2011. Text is available at http://
www.gao.gov/assets/130/126072.pdf.
    \3\Government Accountability Office, GAO-11-38, Southwest Border: 
More Timely Border Patrol Access and Training Could Improve Security 
Operations and Natural Resource Protection on Federal Lands 22 (2010), 
available at http://www.gao.gov/new.items/d1138.pdf.
    \4\Ibid Ppg. 34.
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    Moreover, the committee report cites the example from the 
same GAO report of a land manager padlocking gates to roads 
located inside San Bernardino National Wildlife Refuge because 
the road crosses a portion of an endangered species habitat. 
The GAO report, however, says, ``The patrol agent-in-charge 
told us that Border Patrol and the refuge manager agreed to 
place Border Patrol locks on refuge gates and to allow second-
level Border Patrol supervisors, on a case-by-case basis, to 
determine whether vehicle access to the refuge is critical. If 
such a determination is made, a Border Patrol supervisor 
unlocks the gate and contacts refuge staff to inform them that 
access was granted through a specific gate. The patrol agent-
in-charge told us that operational control has not been 
affected by these conditions for vehicle access.''\5\
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    \5\Ibid Ppg. 32-33.
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    Additionally, the report language confuses the application 
of current law. The report states that the bill would:
           ``Remove or limit the authority of United 
        States Department of Agriculture (USDA) and Department 
        of the Interior (DOI) land managers to conduct certain 
        reviews or set conditions;
           U.S. Customs and Border Protection (CBP) 
        would remain subject to the mandates of the National 
        Environmental Policy Act (NEPA), the ESA, the 
        Wilderness Act and all other environmental or cultural 
        protection laws but would have immediate access to 
        federal lands;
           Ensure that DOI and USDA cannot delay or 
        specify the terms and conditions under which CBP can 
        operate inside wilderness areas;
           Prohibit DOI and USDA from asserting itself 
        as a lead, join lead or cooperating agency under NEPA;
           Require CBP to still comply with the ESA and 
        participate in recovery plans and participate in 
        informal and formal Section 7 consultation but without 
        the participation of the land manager;
           Would prohibit DOI and USDA from requiring 
        CBP to obtain a special use permit for 
        infrastructure.''
    It is difficult to infer the drafters' intent of this 
language, but it appears to exclude DOI and USDA agencies from 
compliance with NEPA, ESA, etc., but purportedly to require CBP 
to comply with each of these statutes. If that is an accurate 
interpretation of intent, the bill does not reconstruct 
environmental law in a way to shift responsibilities from land 
managers to CBP. Instead, the bill states, ``notwithstanding 
any other provision of law,'' in which the Secretary concerned, 
such as DOI or USDA, shall provide immediate access to Border 
Patrol. Such language is ambiguous and confusing. According to 
a 2014 Congressional Research Service report: ``courts take 
into account this expressed intent to override the provisions 
specified in a ``notwithstanding'' clause, but when the clause 
purports to override `any other provision of law,' its 
preclusive scope is often unclear.''\6\ There has, in fact, not 
been any litigation about Border Patrol activities in Arizona 
under the environmental laws, whereas it is difficult to 
predict how a court would interpret the language currently 
included in the bill.
---------------------------------------------------------------------------
    \6\Eig, Larry M., ``Statutory Interpretation: General Principles 
and Recent Trends''. Congressional Research Service Report (97-589). 
September 24, 2014.
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    It is for these reasons that I oppose S. 750. While certain 
modifications or updates to the 2006 MOU may be in order, there 
is no evidence that a stringent statutory requirement is 
necessary to enable U.S. Border Patrol increased access to 
public lands. The GAO findings cited in the committee report 
for S. 750 instead provide evidence that most agents reported 
that land management laws have had no effect on Border Patrol's 
overall measure of border security and that border security 
status has instead been most affected by stark terrain 
features. Moreover, should this bill come into effect, it may 
make U.S. Customs and Border Protection vulnerable to potential 
lawsuits based on perceived violations of environmental laws. 
Such lawsuits would potentially cost valuable taxpayer money 
that could instead be used to enhance CBP's border security 
capabilities where it deems them most important.

                                                        Jon Tester.

                                  [all]