Lawmakers seek waiver for border lands

Helena Independent Record
October 28, 2011
by Mike Dennison

As a fight brews in Washington, D.C., over a bill giving the U.S. Border Patrol unfettered access on federal lands near international borders, the issue also has become a political football in the campaign between U.S. Sen. Jon Tester, D-Mont., and his Republican challenger, U.S. Rep. Denny Rehberg.

Rehberg is a co-sponsor of the House bill, which says the Department of Homeland Security shall have access to “any public land managed by the federal government” for activities to secure the border.

The bill also enables the department to “waive” a whole host of environmental protection laws, such as the Endangered Species Act, Clean Air Act, Wild and Scenic Rivers Act, Wilderness Act and more than two dozen others.

Rehberg says the bill is no big deal, and merely attempts to resolve a “turf battle” between Homeland Security and the departments of Interior and Agriculture, so the Border Patrol can have access to national forest, national park and other federal lands without having to ask permission.

“We’ve got pretty good access to the border on state and private lands, but face serious challenges on federal lands,” he says. “So, guess where the criminals set up their operations? On federal lands.”

Tester, as well as other Montana Democrats and Democratic groups, have roundly criticized the bill and Rehberg’s sponsorship, saying the measure gives too much power to Homeland Security, allowing the agency to use federal lands any way it chooses, with no public input or recourse.

“Rehberg’s proposal has very little to do with border security and everything to do with allowing the government to trample on rights, nullify existing laws and ignore public accountability in order to meet its own definition of homeland security,” says Aaron Murphy, a spokesman for Tester.

Murphy notes that the three agencies — Interior, Agriculture and Homeland Security — have had a “memorandum of understanding” in place since 2006, on cooperative security efforts on federal lands near the border. It’s working well and the bill isn’t needed, he says.

Rehberg and supporters of the bill, including groups that represent current and former Border Patrol agents, insist the bill is not an Orwellian takeover of public land, and say they don’t understand why Tester — a vocal proponent of border security — is taking a hard line against it.

They also say the U.S. Senate in 2009, with unanimous consent, supported a similar amendment that prohibited Interior Department funds from restricting Homeland Security’s enforcement of border laws or construction of a border fence.

Tester says the comparison isn’t accurate, because the 2009 amendment did not waive environmental laws, prevent public input or give Homeland Security a blank check to do whatever it wanted on public lands.

“If Homeland Security wanted to stop sales on Forest Service land, challenge tribal sovereignty, build watch-towers in Glacier Park or build roads across the Bob Marshall Wilderness, (Rehberg’s) bill allows it,” Murphy said.

Rehberg says these claims are overblown, and that he supported an amendment to the bill that would prevent Homeland Security from stopping approved uses of public land, such as grazing and recreation.

“Despite the hyperbole from environmental obstructionists, the Border Patrol is not empowered to strip-mine Glacier National Park or build eight-lane freeways through the wilderness,” he said. “We can strike a reasonable balance that acknowledges it’s better to allow access to law enforcement than leave our public lands and public safety at the mercy of criminals.”

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