May 6, 2012
by Tristan Scott
WHITEFISH – A controversial bill that aims to shift authority over federal lands within 100 miles of the U.S. border to the Department of Homeland Security could be nearing a vote on the House floor, a development that has renewed debate over the measure’s applicability in places like Montana, where it would strip dozens of environmental protections from Glacier National Park and designated wilderness areas.
The proposed legislation, called the National Security and Federal Lands Protection Act, or H.R. 1505, would exempt Homeland Security from compliance with 36 federal environmental protection laws in order to expedite border security, including the National Environmental Protection Act, the Endangered Species Act, the Clean Air Act and the Safe Drinking Water Act.
The bill’s proponents say it is a critical step toward securing the nation’s borders and granting more control to U.S. Customs and Border Protection agents, who are frequently stymied by burdensome environmental regulations and uncooperative federal land managers.
Critics argue that the bill’s language is ambiguous and its intent unnecessary and overreaching. They say it would invite Homeland Security to disregard key environmental laws on cherished public lands, wilderness areas, national parks and wildlife refuges.
In Montana, the law would affect a 100-mile corridor that comprises nearly one-third of the state, including Glacier National Park and portions of the Kootenai and Flathead national forests. It would also apply to five of Montana’s Indian reservations, as well as the Charles M. Russell National Wildlife Refuge and broad swaths of Bureau of Land Management lands.
U.S. Rep. Denny Rehberg, R-Mont., is one of 59 legislators who have co-sponsored the measure, which was introduced in April 2011 by Rep. Rob Bishop, R-Utah.
On Friday, one year after attaching his name to the bill, Rehberg defended the legislation on a statewide radio talk show.
The bill is not a federal “land-grab” as some critics have asserted, he said, but a means to improve coordination between agencies that are charged with disparate missions, and that too often clash in a manner that compromises national security.
“We have a food fight going on between federal agencies,” he said, adding that the U.S. Forest Service and Bureau of Land Management are not cooperating with the U.S. Border Patrol, and calling the situation a “bureaucratic turf war.”
“People of America need to know that this lack of cooperation exists,” he continued. “They are hiding under environmental laws to keep our law enforcement agencies from stopping drug traffickers or human traffickers.”
Former superintendents and employees at Glacier National Park and the district ranger for the Hungry Horse-Glacier View District of the Flathead National Forest, both of which hug the U.S.-Canadian border, say they have found a great deal of ongoing cooperation between their staffs and the Border Patrol.
“I question what the bill actually seeks to fix, and what level of bureaucracy it is inviting,” said Mick Holm, who retired as superintendent of Glacier National Park in 2008. “When I was superintendent, we had a very good working relationship with the other agencies, be it the Forest Service or Border Patrol or our Canadian counterparts. Anytime there was a difference of opinion we were able to seek common ground and resolve it with discussions at the local level.”
Jimmy DeHerrera, district ranger in the Hungry Horse-Glacier View District of the Flathead National Forest for the past 14 years, echoed Holm on the subject of interagency cooperation.
“I would highlight that locally, working with the Whitefish office of the Border Patrol, we have a very good cooperative working relationship,” DeHerrera said. “We all respect each other’s missions and, even though we have separate missions, we do whatever it takes to accommodate the needs of Border Patrol agents in a way that still accomplishes our resource management objective.”
A 2009 memorandum of understanding signed between officials from the Interior and Homeland Security departments also addresses Border Patrol access to public lands and comports with the opinions of local land managers who praised interagency collaboration.
The cooperation was also affirmed by U.S. Customs and Border Protection officials who testified against the bill before Congress last July, saying the agency “enjoys a close working relationship with the Department of Interior and Department of Agriculture that allows us to fulfill our border enforcement responsibilities while respecting and enhancing the environment.”
Department of Homeland Security Secretary Janet Napolitano testified this March that the bill is “unnecessary, and it’s bad policy.”
The bill would “prohibit the secretaries of the Interior and Agriculture from taking action on public lands which impede border security on such lands.”
And without having to adhere to the National Environmental Protections Act, or the Wilderness Act, or the Endangered Species Act, or any number of other measures, the Border Patrol would not have to answer to the National Park Service before conducting six activities: building fences; cutting new roads to access federal lands (or opening existing roads to patrol vehicles and ATVs that are currently closed to motorized use); installation of surveillance equipment and sensors; use of aircraft; and deployment of “temporary tactical infrastructure, including forward operating bases.”
Jed Link, communications director for Rehberg, emphasized that land managers maintain control of the federal parcels and H.R. 1505 does not give Border Patrol agents unchecked power. It merely allows them to gain “operational control on a porous border where, in Montana, one out of every two miles crosses federal lands.”
“It does not allow them to do whatever they want, whenever they want and however they want. It allows them to gain operational control of a porous border,” Link said. “Nobody wants to hurt the environment or undermine wilderness. But we have a security problem that we know exists, and the solution is to get rid of this bureaucratic turf war.”
In a telephone interview Friday, Congressman Bishop said that critics of the bill are misguided in their strictures and misinformed about the measure’s intent. The memorandum of understanding between agencies is “inadequate,” he said.
“Right now, environmental laws and policies prohibit the Border Patrol from doing their job on federal lands, and that has become the avenue of choice for criminals and illegal immigrants,” he said.
“People are saying we are going to crisscross the land with new roads and asphalt, but most of the concern applies to existing roads that were gated and where Border Patrol agents are being restricted access,” Bishop continued. “The notion that Homeland Security is going to be building new roads and infrastructure is not based in reality.”
The bill is endorsed by the National Border Patrol Council (NBPC) which represents 17,000 Border Patrol Agents and the National Association of Former Border Patrol Officers (NAFBO).
Zack Taylor, vice chairman of NAFBO and a former Border Patrol agent in Arizona, said it is a mistake to allow environmental protection laws to supplant measures aimed at tightening national security and improving public safety.
“The Border Patrol is being shut out of the national forest land. It’s that simple,” he said.
Taylor said drug smuggling and human trafficking is a much larger problem along the southern border, but that smugglers are already established in areas along the Yaak and Kootenai river valleys.
“Those are ideal places for smugglers,” he said.
Democratic Sen. Jon Tester has vigorously opposed H.R. 1505, likening it to the Patriot Act and REAL ID in its unprecedented extension of powers to the federal government.
“Count me among the Montanans who have serious problems with this bill. But like the Patriot Act and REAL ID, this one can’t be fixed,” Tester said. “It needs to be scrapped altogether because no matter how you spin it, it gives the Department of Homeland Security total control over the land we all use.”
Doug Morris of Victor is a retired National Park Service employee who was superintendent at Saguaro National Park in Arizona and Shenandoah National Park in Virginia. He said the argument that a lack of cooperation exists between the Park Service and Border Patrol is “horribly untrue.”
“The agencies have all agreed to cooperate and support one another’s goals,” he said. “Whatever conflicts once existed between these agencies are gone, so there is no need to move forward with this legislation that will have real consequences to almost a third of the acreage of National Park Service lands. I don’t think that is understood by very many people.”
Steve Gniadek, a biologist who worked at Glacier National Park for 32 years, has staunchly opposed the bill because he says it would have deleterious effects on elk habitat, and access to federal lands has never been a problem.
“The bill assumes that there is this resistance and that federal land managers are preventing border patrol agents from doing their job. I just don’t see any evidence of this in Montana,” he said.