Napolitano Blasts Border Access Bill

Congressional Quarterly
March 8, 2012
By Jennifer Scholtes

Homeland Security Secretary Janet Napolitano leveled pointed criticism Thursday at a House border security bill, in a rare divergence from the administration’s usual policy of refraining from passing judgment on pending legislation.

Several Democratic lawmakers have already voiced opposition to the measure (HR 1505), which would give Customs and Border Protection the authority to patrol and set up physical infrastructure on federally protected land within 100 miles of the United States’ southern and northern borders. Officials from the Border Patrol have also told lawmakers that they don’t feel such legislation is necessary, as they have worked out access deals with the environmental agencies that manage the lands.

But Napolitano and other Cabinet officials make it a practice to keep mum on specific measures pending in Congress, making it somewhat unusual that she told the Senate Appropriations Homeland Security Subcommittee the bill “is unnecessary, and it’s bad policy.”

“We don’t need it for our immediate Border Patrol needs,” she said. “We already have an agreement with the Department of Interior. If we’re doing a chase or there are exigent circumstances, we can go onto lands without having to seek prior approval or any of that.”

And given the nature of those areas, the secretary said she believes it is “highly appropriate” to consult with the Interior Department in carrying out those missions. Through interdepartmental cooperation, DHS has been able to address patrolling needs such as setting up surveillance towers and constructing roads on public lands, she said.

In 2006, the two departments signed a memorandum of understanding to ensure that border agents get the access they need to apprehend drug traffickers and illegal immigrants trying to enter the United States through protected lands. But the Government Accountability Office has reported that such coordination has not always been a smooth process.

A report GAO released last year said that Border Patrol access to some federal lands along the southwestern border has been limited because of land management laws, according to many of the agents surveyed. Agents have sometimes been unable to obtain permits or permission to access areas in a timely manner because of delays due to environmental and historic property assessments, the report said.

The bill’s sponsor, Rep. Rob Bishop, R-Utah, has argued that environmental laws should not take precedent over national security. Bishop’s measure, which the House Natural Resources Committee approved in October in a party-line vote, has attracted nearly 60 Republican cosponsors, but not a single Democratic supporter.

Lawmakers have introduced several related bills this Congress, including a measure (HR 1922) approved by the House Homeland Security Border and Maritime Subcommittee last June that would provide CBP access to federal lands for routine patrols and for deploying temporary tactical infrastructure.

A broad border security bill (HR 1507) introduced by Rep. Jeff Flake and a companion measure (S 803) being pushed by fellow Arizona Republican John McCain in the Senate include similar language. Their proposals stipulate that the Agriculture and Interior department would have to provide CBP personnel immediate access to federal lands for security activities.

Of those measures, Sen. Jon Tester, D-Mont., said he finds the Bishop bill “the most egregious.” The legislation, which would bar the Interior and Agriculture departments from impeding, prohibiting or restricting DHS activities, would give DHS “unprecedented power to do as it sees fit” on lands near the northern border Montana shares with Canada, Tester said.

“I think a one-size-fits-all approach in this particular instance — we both know the northern border and the southern border are two different borders — it doesn’t fit well,” Tester said. “I don’t think it’s about catching bad guys, I think it’s about allowing governmental agents to build roads and watch towers and buildings in places where other agencies, even tribal units, would not have any input.”