Against the Wall

Not even federal law can keep Bush's fence from ripping through natural areas along the Rio Grande.

Texas Observer
June 27, 2008

Melissa del Bosque

Ken Merritt dedicated 31 years of his professional life to protecting endangered wildlife for the U.S. Fish & Wildlife Service. He’d still be doing the job he loved if not for a fateful decision. In December 2007, his bosses presented Merritt with a choice: Adhere to longstanding federal law, or sign off on a plan by the Department of Homeland Security to build an 18-foot steel wall through a wildlife refuge under his charge.

Merritt oversaw 180,000 acres of federally protected land that comprises three national wildlife refuges: the Lower Rio Grande Valley, the Santa Ana, and the Laguna Atascosa. In an area where 95 percent of the native habitat has fallen prey to development, the value of the refuges cannot be overstated. Over three decades, the federal government invested more than $80 million in buying and restoring habitat along the Texas-Mexico border, creating 115 refuges along the Rio Grande. Merritt’s three-refuge complex is the largest tract. Volunteers and federal employees painstakingly restored native grasses and trees to fallow farmland, and endangered species such as ocelots and jaguarundis slowly returned. The refuges are home to 700 species of birds and animals, as well as 300 species of butterflies, including the rare Telea hairstreak butterfly, which caused a stir last year in scientific circles when it was spotted for the first time in 70 years. The wildlife refuges have been an economic boon for one of the poorest regions in the country. The median annual household income along the border is $15,000. The more than 200,000 birders and ecotourists who visit the region generate an estimated $150 million a year.

Merritt assumed his job was secure. “I really didn’t think it was a career-ending decision until they told me so last December,” he says. “I thought what I was doing was right. But it was a train wreck waiting to happen.”

Merritt says his boss, Benjamin Tuggle, the southwest regional director at Fish & Wildlife in Albuquerque, explicitly asked him to approve the engineering survey for a fence through the Lower Rio Grande Valley National Wildlife Refuge. It was implied through numerous conference calls and a visit from Tuggle that the Bush administration wanted badly to begin building the border fence. A private environmental consulting firm from Colorado, E2m Inc., had won the contract to do surveys for the fence, and needed access to the refuge. The National Environmental Policy Act, however, requires that a wildlife refuge manager answer a series of questions to determine whether construction projects—in this case a border fence—are appropriate and not detrimental to wildlife in the refuge.

Merritt’s findings indicated the opposite. “It had no benefit for the refuge and no relationship to why the refuge was established,” Merritt says. He denied permission to perform the survey.

Tuggle told him his choice was a “career-ending decision,” Merritt says. “He said some other things, which I won’t go into, but it was pretty ugly.” On January 3, Merritt retired.

Contacted by the Observer, Tuggle denied telling Merritt that his decision would end his career.

Merritt, 54, bemoans the politicization of wildlife protection under the Bush administration. He says political appointees with little background in wildlife management or biology have disregarded the agency’s mission, protecting the nation’s natural resources. “I put a lot of time and a lot of thinking into working through this issue on the border fence,” Merritt says. “And I came to the right conclusion about it, but nothing was done in the end because the waiver wiped everything out.”

The waiver in question stems from a provision Congress tucked into the Real ID Act in 2005 that allows the secretary of homeland security to ignore federal law in the name of national security. On April 1, Secretary Michael Chertoff used his authority to waive 36 federal laws, including the Clean Air Act, the Safe Drinking Water Act, the Antiquities Act, and the Native American Graves Protection Act. His waiver applies to 470 miles of southern border in California, Arizona, New Mexico, and Texas. The edict ended public input and interagency discussion on alternatives to the fence.

Yet, as Chertoff has admitted, building a fence through Texas’ wildlife refuges, while costly to taxpayers, will do little to solve America’s illegal immigration problems. The Government Accountability Office, a nonpartisan congressional watchdog, has estimated that building and maintaining fence segments along the southern border could cost $49 billion. Last July, Chertoff told CNN’s Late Edition that “fencing has a symbolic value, and it has usefulness in some parts of the border. And we’re going to use it where it is effective. The idea that you are going to solve the problem simply by building a fence is undercut by the fact that yesterday we discovered a tunnel. So the idea that fencing alone is a solution I think is overly simplistic.”

Despite complaints from congressional leaders about lack of public input, a class action lawsuit by several Texas border landowners and cities, and a lawsuit filed in the U.S. Supreme Court by Defenders of Wildlife and the Sierra Club, Chertoff expects private contractors to start building the fence in Texas by July or August.

In May, the Army Corps of Engineers began soliciting bids to build three segments of steel fence through the Lower Rio Grande Valley National Wildlife Refuge. Houston-based KBR Inc., formerly a subsidiary of Halliburton Co., is one of the companies bidding for the project.
Privatization of border security is a hallmark of the Bush administration’s effort to curb illegal immigration. At a January 2006 “Industry Day” in Washington, D.C., Deputy Director of Homeland Security Michael Jackson told more than 400 defense contractors, “We’re asking you, we’re inviting you to tell us how to run our organization.” Jackson, a former Lockheed Martin Corp. vice president, added, “This is an invitation to be a little bit aggressive, thinking as if you were owner and you were partners with CBP (U.S. Customs and Border Protection).”

In 2006, Boeing Co. won a multibillion-dollar contract to build and maintain “technology and tactical infrastructure projects” along the northern and southern borders. A Government Accountability Office report released in February indicated the contract runs for three years, with three one-year extension options. The GAO has repeatedly recommended that Homeland Security place a spending cap on the contract, to no avail.

Homeland Security’s Secure Border Initiative office, whose responsibility it is to oversee the Boeing contract and several other border-security projects, did not return six phone calls and four e-mails requesting comment.

Boeing drew the wrath of congressional leaders in February, when the company delivered a “virtual fence” to surveil the Arizona border near Tucson. It didn’t work. Under accelerated deadlines imposed by Congress and Homeland Security, the company used commercial software for police dispatchers. The company didn’t consult with Border Patrol agents as to what would work in the field. Congressional leaders threatened to take the project, called P-28, away from Boeing, but instead granted the company two more contracts worth $133 million to salvage the effort.

Democratic Congressman Raul Grijalva, whose district is on the Arizona border, has watched the P-28 debacle unfold over the past two years. “They screwed up the virtual fence, and $20.6 million was flushed down the toilet—no problem,” he says. “Now they’ve been given additional money to redo it. It’s nothing more than political symbolism.”

Chertoff announced this month that the technology would be operational in 2011.

In June 2007, Grijalva, who chairs the subcommittee on National Parks, Forests, and Public Lands of the House Natural Resources Committee, introduced the Borderlands Conservation and Security Act. His legislation requires, among other things, that Homeland Security publish full public notice and seek public input. And it repeals Chertoff’s waiver authority. Despite 49 co-sponsors, the legislation languishes in another House subcommittee—the equivalent of outer Siberia on Capitol Hill.

Grijalva has spent his whole life on the Arizona border, and he understands the complexities of the region. His Capitol office is decorated with Native American artwork and colorful southwestern décor. At times he slips into Spanish border slang. “The fence is not a deterrent for the high-level organized criminal organizations operating on both sides of the border,” he says. “Guns one way, dope the other way, human smuggling, stolen vehicles—those activities are now organized. And if you talk to Border Patrol agents who don’t have to carry the party line, they’ll tell you it’s not the poor pelado coming across to wash dishes in some restaurant that’s a threat. It’s the cartels that control Nuevo Laredo and Juarez in Texas and Naco, Nogales, and Agua Prieta in my state.”

Grijalva has been trying for months to get traction on his legislation. But it remains unacceptable to both Republicans and the Democratic leadership, the former for ideological reasons and the latter because it’s too controversial in an election year.

“When I first filed this bill, some of my colleagues thought it was a real pain in the ass,” Grijalva says. “Nobody thought the fence would be built. Then their communities started calling them.”
In April, he held a field hearing on his bill at the University of Texas campus in Brownsville. The hearing brought together seven committee chairs and a bipartisan panel of congressional members, including Republican Rep. Duncan Hunter of California, a primary architect of the Secure Fence Act. Colorado Republican Tom Tancredo, a staunch fence supporter, also took part. He had one of the more memorable lines of the day when he peevishly suggested that the border fence be built north of Brownsville since residents hated the plan so much.

One important witness was conspicuously absent. Grijalva had requested that a deputy or high-ranking member of Homeland Security be present to answer questions. Chertoff ignored Grijalva and the six other Democratic committee chairs, and didn’t send a high-level staffer.
“The administration is an animal unto itself,” Grijalva says.

Though Democrats have the majority in the House and the Senate, and control the administration’s purse strings, they have been reluctant to take on Homeland Security because they don’t want to be perceived as soft on security issues, Grijalva says.

“A lot of what we need to do as Democrats in Congress is not panic and stick our tails between our legs at the tactics that Homeland Security uses, such as ‘Oh, if you’re not for waiving 36 laws, building a fence, and putting the safety of the nation above a species, then you are obviously pro-terrorist, open borders, and don’t care about the security of our nation,’” he says. “It’s been a very convenient political hammer on both sides of the aisle.”

Grijalva’s hope is that Democrats can eventually reform Homeland Security, but he doesn’t see it happening until Bush has left the White House. “I think we can provide some real oversight over these agencies and at least minimize the damage and hold it until the new administration can come in and clean it up,” he says. “That’s the long-term strategy for me—holding the dogs at the gate until we can have a more rational look at border security and border policy. Because everything we are doing right now is in response to being perceived as a political advantage or disadvantage. And so when you create policy that way, like with the border fence, it is doomed to failure. Those policies have no lasting strength to them.”

Particularly galling to the congressman is Homeland Security’s plan to spend $1.3 billion to build a massive headquarters in Washington; the money will come from port of entry funding within the agency’s budget. Local officials, along with law enforcement personnel, have long begged for more money to beef up security at ports of entry along the border. “People are calling it the ‘Little Pentagon,’” Grijalva says of the new headquarters. “They squeezed port of entry funding, better security, and flow-of-traffic money slated for ports of entry to build it.”

He says he believes the agency never intended to follow federal law when building the fence segments across the southern border. “I think the waiver was always in the works,” he says.

“There is a military mentality toward this now in the Department of Homeland Security. They use words like ‘operational management, operational control.’ They didn’t want to deal with the National Environmental Policy Act. Because Homeland Security feels it is to some extent part of the Defense Department and that oversight should be minimal and secretive. The National Environmental Policy Act is an open and public process, and in that culture they feel it’s their prerogative to be closed about it for security reasons.”

Every year, Grijalva says, at least 400 dead migrants who have succumbed to the elements are routinely discovered in the desert in his district. He is frustrated that the administration won’t work with local communities and law enforcement to come up with a border policy that works. Instead, private contractors are making millions off U.S. taxpayers building pieces of fence that no one believes will work. “This administration has made sure their allies have found a way to make money out of it,” Grijalva says. “I find it very disturbing.”

The congressman hasn’t given up on his legislation. He hopes to hold another hearing in July. While he has gathered support from 49 Democrats, not one Republican has joined them.

Noah Kahn, federal lands associate with Defenders of Wildlife, says his group has repeatedly met with Republican congressional members to persuade them to join Grijalva. “Many of them show interest, but they always ask, ‘Have any other Republicans signed on to the bill?’ No one wants to be the first Republican to sign on,” Kahn says.

“I don’t think I will get bipartisan support,” Grijalva says. “So the point quite honestly is to continue to move the issue—you don’t want it to disappear. We want to put this in front of the American people and say, ‘OK, the border fence is not going to solve the problem you perceive because, (a) it is dividing communities and, (b) it’s a waste of money, and it’s affecting the environment and our constitutional principles, such as private property and sovereign rights for native people.” Ken Merritt, for one, would like to see a real debate about the fence. On a sweltering June afternoon, he sits under a tree at the Santa Ana Wildlife Refuge in a contemplative mood. Just last December he was the boss here.

“The border fence really threw the service for a loop,” he says of Fish & Wildlife. “They wrote this policy about appropriate uses to protect the refuges as much as possible from political decisions. They never thought about a fence coming in. It’s a tough one because the administration wants a fence, and they are telling everyone down the line in the executive branch, ‘Make this thing happen.’”

Merritt says the American people shouldn’t have to choose between saving endangered species and securing the border. “You hear about a wildlife refuge and the border fence on Fox News, and they always paint it as black and white,” he says. “Do you want to save an ocelot or have our border secure? It’s a ridiculous question, because we ought to be able to have both.”

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