Great Falls Tribune
November 19, 2011
by John S. Adams
HELENA — Sen. Jon Tester, D-Mont., and Rep. Denny Rehberg, R-Mont., continue to cast political stones over a controversial measure that would give the Department of Homeland Security "operational control" over federal lands along the United States' borders.
Tester and Rehberg are locked in what many political observers predict will be one of the toughest U.S. Senate races in the nation, and the so-called "border bill" has become one of the biggest issues of the campaign to date.
Tester believes Rehberg's co-sponsorship of House Resolution 1505 won't sit well with Montana voters who value public lands.
The measure would give U.S. Customs and Border Protection the authority to circumvent 36 federal environmental and wilderness laws in order to give the agency operational control over all federally owned lands within 100 miles of U.S. borders.
Supporters of the measure, including Rehberg, say it is a simple bill designed to break the bureaucratic gridlock and turf war between Customs and Border Protection and the federal agencies that manage public lands along the border. They say the measure gives Customs and Border Protection agents the tools necessary to track down and stop invaders, drug smugglers and other threats without getting mired in the red tape of environmental reviews and public comments.
The bill specifically authorizes Customs and Border Protection to engage in the following activities in remote areas — such as wilderness and national parks — where such activities currently are prohibited:
•Build and maintain roads
•Use motorized vehicles to patrol
•Install and operate surveillance equipment and sensors
•Build temporary tactical infrastructure, including forward operating bases.
Opponents of the measure, including a hunting-and-angling group with ties to Tester, are attacking Rehberg in television ads and on the Internet, calling HR1505 "a federal land grab of the highest order." Critics of the bill say it threatens the health of protected ecosystems and wildlife, and could be used to lock the public out of federal lands without public input.
Rehberg's supporters say such criticism is politically motivated hogwash designed to scare voters.
They also accuse Tester of being a hypocrite on the issue, since he didn't oppose a 2009 Senate amendment that contained nearly identical language to the language at the core of HR1505.
The Senate in 2009 passed by unanimous consent an amendment to the 2010 Interior appropriations bills containing the following language:
"None of the funds made available by this Act may be used to impede, prohibit, or restrict activities of the Secretary of Homeland Security on public lands to achieve operational control (as defined in section 2(b) of the Secure Fence Act of 2006 (8 U.S.C. 1701 note; Public Law 109-367)) over the international land and maritime borders of the United States."
Rehberg's bill, as amended by Rep. Rob Bishop, R-Utah, contains this language:
"The Secretary of the Interior or the Secretary of Agriculture shall not impede, prohibit, or restrict activities of U.S. Customs and Border Protection on land under the jurisdiction of the Secretary of the Interior or the Secretary of Agriculture to achieve operational control (as defined in section 2(b) of the Secure Fence Act of 2006 (8 U.S.C. 1701 note; Public Law 109—15 367)) over the international land borders of the United States."
Rehberg spokesman Jed Link said the 2009 amendment gives even broader, more sweeping authority to the Department of Homeland Security to do almost anything it wants. He said Rehberg's bill is an attempt to build on the work the Senate began in 2009, but that it specifically details what activities Customs and Border Protection is allowed to undertake in order to obtain "operational control."
"At the end of the day, we're still trying to do what the Senate was trying to do in 2009. We've learned a lot in the last few years and have a better idea about what works and what doesn't work, so the details of the legislation aren't exactly the same," Link said.
While the 2009 amendment prohibited the Department of the Interior from impeding, prohibiting or restricting Department of Homeland Security activities, it did not waive the agency's requirement to follow federal environmental laws when undertaking those activities.
Tester spokesman Aaron Murphy said the 2009 amendment was part of a one-year appropriations bill, and was aimed at addressing a specific, short-term problem.
Murphy said Congress concurred in 2009 that agreements between various federal land management agencies and Customs and Border Protection were not working, causing construction on a southern border fence to stall.
"The bill that passed the Senate was a short-term response to address a specific problem on the southern border back in 2009," Murphy said. "Congressman Rehberg's bill is a one-size-fits-all solution in search of a problem. His plan completely overhauls border security by giving one department total control over public land in Montana."
"The fact is, in 2009, Senator Tester agreed with Denny that this was a problem that needed to be solved," Link said. "Jon Tester is the only one who has changed his mind. This is about national security and keeping Montana families safe — the stakes are too high for political games."