[Senate Report 114-150]
[From the U.S. Government Publishing Office]
Calendar No. 243
114th Congress } { Report
SENATE
1st Session } { 114-150
______________________________________________________________________
ARIZONA BORDERLANDS PROTECTION AND PRESERVATION ACT
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
WITH ADDITIONAL VIEWS
to accompany
S. 750
TO ACHIEVE BORDER SECURITY ON CERTAIN FEDERAL LANDS ALONG THE SOUTHERN
BORDER
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
October 1, 2015.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
59-010 WASHINGTON : 2015
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky JON TESTER, Montana
JAMES LANKFORD, Oklahoma TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire CORY A. BOOKER, New Jersey
JONI ERNST, Iowa GARY C. PETERS, Michigan
BEN SASSE, Nebraska
Keith B. Ashdown, Staff Director
Christopher R. Hixon, Chief Counsel
David S. Luckey, Director of Homeland Security
William H.W. McKenna, Chief Counsel for Homeland Security
Brooke N. Ericson, Deputy Chief Counsel for Homeland Security
Gabrielle A. Batkin, Minority Staff Director
John P. Kilvington, Minority Deputy Staff Director
Mary Beth Schultz, Minority Chief Counsel
Holly A. Idelson, Minority Senior Counsel
Stephen R. Vina, Minority Chief Counsel for Homeland Security
Laura W. Kilbride, Chief Clerk
Calendar No. 243
114th Congress } { Report
SENATE
1st Session } { 114-150
======================================================================
ARIZONA BORDERLANDS PROTECTION AND PRESERVATION ACT
_______
October 1, 2015.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 750]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 750) to achieve
border security on certain Federal lands along the Southern
border, having considered the same, reports favorably thereon
with an amendment in the nature of a substitute and recommends
that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................6
IV. Section-by-Section Analysis......................................6
V. Evaluation of Regulatory Impact..................................7
VI. Congressional Budget Office Cost Estimate........................7
VII. Changes in Existing Law Made by the Bill, as Reported............8
VIII.Additional Views.................................................9
I. PURPOSE AND SUMMARY
The purpose of S. 750, the Arizona Borderlands Protection
and Preservation Act, is to enhance border security on certain
Federal lands along the southwest border. This bill seeks to
provide U.S. Customs and Border Protection (CBP) personnel with
faster access to Federal lands in the Tucson and Yuma Border
Patrol sectors for border security activities, including
routine motorized patrols and the deployment of communications,
surveillance, and detection equipment. The bill also requires
the Government Accountability Office (GAO) to conduct a review
and complete a report considering how this access has affected
border security activities and the natural, cultural, and
historic resources of Federal and Indian lands, as well as a
sector-by-sector analysis of the probable impact if such access
was expanded to other sectors.
II. BACKGROUND AND THE NEED FOR LEGISLATION
Various Federal land agencies have different missions,
guidelines, and management plans regarding CBP access to
Federal land under their respective jurisdictions, which has
historically slowed or impeded some efforts by CBP--or its
predecessor agency--to conduct border security operations on
such land.\1\ Border Patrol agents can generally enter Federal
lands in ``hot pursuit'' of suspected illegal entrants, but
typically need permission for activities such as routine
patrols, road building or to install surveillance equipment.\2\
---------------------------------------------------------------------------
\1\E.g., Gov't Accountability Office, GAO-11-38, Southwest Border:
More Timely Border Patrol Access and Training Could Improve Security
Operations and Natural Resource Protection on Federal Lands 22 (2010)
[hereinafter 2010 GAO Report], available at http://www.gao.gov/
new.items/d1138.pdf (``Patrol agents-in-charge of 17 of 26 stations
along the southwestern border reported that they have experienced
delays and restrictions in patrolling and monitoring portions of
federal lands because of various land management laws.'').
\2\See Memorandum of Understanding Among U.S. Department of
Homeland Security and U.S. Department of the Interior and U.S.
Department of Agriculture Regarding Cooperative National Security and
Counterterrorism Efforts on Federal Lands along the United States'
Border 6 (2006) [hereinafter 2006 Memorandum of Understanding].
---------------------------------------------------------------------------
In 2006, in an attempt to resolve ongoing conflicts between
Federal land managers and CBP over access to Federal lands, the
U.S. Department of Homeland Security (DHS), the U.S. Department
of the Interior (DOI), and the U.S. Department of Agriculture
(USDA) entered into a Memorandum of Understanding (MOU)
concerning border security operations on Federal lands.\3\
However, as discussed further below, some Border Patrol agents-
in-charge believe the MOU continues to allow for undue delays
and impediments for routine access that threaten the security
of our border.\4\ This bill seeks to provide Border Patrol with
prompt access to Federal lands in the Tucson and Yuma Border
Patrol sectors for a range of activities. The bill would remove
or limit the authority of Federal land managers at USDA and DOI
to conduct certain reviews or set conditions related to CBP
access to Federal lands. While CBP would remain subject to the
mandates of the National Environmental Policy Act (NEPA), the
Wilderness Act, the Endangered Species Act, and any other
environmental or cultural protection law, CBP personnel will
now have immediate access to Federal lands for border security
activities.
---------------------------------------------------------------------------
\3\Id.
\4\2010 GAO Report, supra note 1, at 22-33.
---------------------------------------------------------------------------
A. APPLICATION TO THE WILDERNESS ACT
Section 4(c) of the Wilderness Act prohibits the
construction of temporary roads or the use of motorized
vehicles or equipment within a congressionally-designated
``Wilderness Area,'' except in emergency situations involving
health and safety.\5\ The 2006 MOU makes clear that CBP can use
vehicles inside a Wilderness Area routinely, but such access is
limited to pre-approved administrative roads.\6\ The MOU
permits off-road access inside a Wilderness Area only in
emergency circumstances or after a written request and
agreement with the relevant land manager, subject to terms and
conditions that the land manager may require.\7\ If a dispute
persists, the MOU outlines a process for line officers to
elevate the matter to regional and national managers for
resolution, if necessary.\8\
---------------------------------------------------------------------------
\5\16 U.S.C. Sec. Sec. 1131-1136(4)(c) (2014).
\6\2006 Memorandum of Understanding, supra note 2, at 4-5.
\7\Id.at 5.
\8\Id. at 3.
---------------------------------------------------------------------------
In 2010, the GAO reviewed this issue and found that even
with the 2006 MOU in place, the patrol agents-in-charge at
three key CBP stations reported that the Wilderness Act
continues to hamper their agents' abilities to access portions
of Federal land.\9\ GAO also found examples of the U.S. Forest
Service requiring, as a condition for access, that CBP fund a
portion of its road maintenance needs.\10\
---------------------------------------------------------------------------
\9\2010 GAO Report, supra note 1, at 28.
\10\Id. at 20.
---------------------------------------------------------------------------
In 2014, CBP, in its Fiscal Year 2014 Arizona Corridor
Campaign Plan, cited vehicular access as an impediment to
securing the border, stating:
[T]he vast and remote area of the Cabeza Prieta
National Wildlife Refuge and Organ Pipe National
Monument aids criminals in their efforts to avoid law
enforcement personnel. The National Park Service has
restricted vehicular traffic in these areas, citing
wildlife preservation and environmental reasons. Agents
are forced to take long detours, severely impacting
response times, as well as crippling effectiveness. Ajo
Station uses the Horse Patrol Unit to work in these
restricted areas. The generally flat terrain
facilitates rapid travel for illicit activities.\11\
---------------------------------------------------------------------------
\11\U.S. Customs and Border Protection, Fiscal Year 2014 Arizona
Corridor Campaign Plan, Joint Field Command 83-84 (2013).
S. 750 will ensure that DOI and USDA cannot delay or
specify the terms and conditions under which CBP can conduct
border security operations inside Wilderness Areas within the
specified portions of the Tucson and Yuma Border Patrol
sectors.
B. APPLICATION TO ENVIRONMENTAL AND HISTORIC PRESERVATION ACTS
Before land managers can grant permission for temporary
road construction or installing surveillance equipment, they
must complete environmental and historic property assessments,
as required by the National Environment Policy Act (NEPA)\12\
and the National Historic Preservation Act (NHPA).\13\ Reliance
on Federal land managers to complete these assessments can
create delays that compromise border security.
---------------------------------------------------------------------------
\12\42 U.S.C. Sec. 4321 et seq. (Pub. L. No. 91-190).
\13\16 U.S.C. Sec. 470 (Pub. L. No. 89-665).
---------------------------------------------------------------------------
A 2011 GAO Report entitled Southwest Border: Border Patrol
Operations on Federal Lands (the 2011 GAO Report) found that 14
of the 26 Border Patrol stations along the southwest border
report interruptions in operations because of the time it took
land managers to complete NEPA and NHPA assessments.\14\
---------------------------------------------------------------------------
\14\Gov't Accountability Office, GAO-11-573T, Southwest Border:
Border Patrol Operations on Federal Lands 10 (2011), available at
http://www.gao.gov/assets/130/126072.pdf.
---------------------------------------------------------------------------
GAO provided one example where CBP waited four months for
land managers to approve the relocation of a mobile
surveillance system to a different location.\15\ By the time
the land manager completed the NEPA and NHPA assessments, the
illegal traffic had shifted to another area.\16\ Moreover,
during this delay, CBP had limited ability to detect
undocumented aliens within a seven-mile range that could have
been covered by the mobile surveillance system.\17\ GAO
concluded that the particular Federal land management unit had
limited staff and resources which delayed the CBP request.\18\
---------------------------------------------------------------------------
\15\Id.
\16\Id.
\17\Id.
\18\Id. at 10-11.
---------------------------------------------------------------------------
Under NEPA, a Federal agency is required to consider and
publically disclose significant environmental impacts of a
proposed agency action and evaluate alternatives.\19\ In some
cases, it is determined that an Environmental Impact Statement
(EIS) is required, meaning the agency believes there will be a
significant environmental impact that warrants greater
study.\20\ An EIS can take years, many work hours, and millions
of dollars depending on the level of analysis and the potential
for, or realized litigation by, environmental groups.\21\
---------------------------------------------------------------------------
\19\U.S. Department of the Interior Bureau of Land Management, H-
1790-1, National Environmental Policy Act Handbook 2 (2008)
[Hereinafter NEPA Handbook].
\20\Id.
\21\See Gov't Accountability Office, GAO-14-369, National
Environmental Policy Act: Little Information Exists on NEPA Analyses
(2014), available at http://www.gao.gov/assets/670/662546.pdf.
---------------------------------------------------------------------------
In addition, when a Federal project involves multiple
Federal agencies, a secondary agency may be elevated in the
NEPA process to one of the following statuses: (1) joint lead
agency, where the second Federal agency shares the lead
agency's responsibility for management of the NEPA process,
including public involvement and drafting documents; or (2)
cooperating agency, in which the second Federal agency has
jurisdiction by law or special expertise, and wants a decision-
making role in the NEPA process.\22\
---------------------------------------------------------------------------
\22\NEPA Handbook, supra note 19, at 111-12.
---------------------------------------------------------------------------
Under S. 750, DOI and USDA could no longer assert itself as
the lead, joint, or cooperating agency in a NEPA analysis
related to border security activities. Instead, CBP would
perform environmental and other clearances, but would not be
precluded from setting its own terms and conditions for
inviting DOI and USDA to serve as a cooperating or joint lead
agency.
C. APPLICATION TO THE ENDANGERED SPECIES ACT
Under Section 7 of the Endangered Species Act (ESA), CBP
must consult with the U.S. Fish and Wildlife Service (USFWS) to
ensure that border security operations do not jeopardize
endangered species.\23\ This process is commonly referred to as
``Section 7 consultation.''\24\ Adding land managers to the
consultation process can impair border security activities.
---------------------------------------------------------------------------
\23\16 U.S.C. Sec. 1536 (Pub. L. No. 93-205).
\24\U.S. Fish and Wildlife Service, Section 7 Consultation,
available at http://www.fws.gov/Midwest/endangered/section7/
section7.html.
---------------------------------------------------------------------------
The 2011 GAO Report found that five Border Patrol stations
reported that prolonged Section 7 consultation has changed the
timing and location of ground and air patrols due to the
presence of sensitive endangered species.\25\ GAO cited one
example of a land manager padlocking gates to roads located
inside San Bernardino National Wildlife Refuge because the road
crosses a portion of an endangered species habitat.\26\ The
gates are only opened on a case-by-case basis at the discretion
of the land manager.\27\ By contrast, the Bureau of Land
Management grants the CBP routine access, provided that CBP
directly engages in Section 7 consultation with USFWS.\28\
---------------------------------------------------------------------------
\25\2010 GAO Report, supra note 1, at 31.
\26\Id. at 32-33.
\27\Id.
\28\Id. at 38 n.31.
---------------------------------------------------------------------------
Under S. 750, the CBP must still comply with the ESA and
participate in recovery plans. Informal and formal Section 7
consultation would occur directly between CBP and USFWS but
would not involve the land manager.
D. APPLICATION TO USE PERMITS AND AUTHORIZATIONS
In general, CBP must obtain permission or a permit from
Federal land management agencies before building temporary
roads or installing surveillance equipment on Federal lands. In
2010, GAO found that ``patrol agents-in-charge for 14 of the 17
stations reported that they have been unable to obtain a permit
or permission to access certain areas in a timely manner
because of how long it takes for land managers to conduct
required environmental and historic property assessments.''\29\
---------------------------------------------------------------------------
\29\Id. at 22.
---------------------------------------------------------------------------
GAO noted that while the 2006 MOU helped to advance
cooperation between the agencies in some cases, ``such
cooperation has not always occurred.''\30\ For example, GAO
cited a case where CBP needed to improve a road to allow a
truck to move an underground sensor, but the Federal land
agency took eight months performing a historic property
assessment.\31\
---------------------------------------------------------------------------
\30\Id. at 23.
\31\Id. at 24.
---------------------------------------------------------------------------
Under S. 750, DOI and USDA could not require the CBP to
obtain a Special Use Permit for border security activities that
require access to Federal land.
E. APPLICATION TO TRIBAL CONSULTATION AND NATIVE AMERICAN LANDS
Issues concerning tribal government consultation and access
to Indian lands were not directly reviewed in the 2010 or 2011
GAO Reports. In general, CBP is required to consult with Indian
tribes on border security operations on Indian lands under
Section 106 of the NHPA\32\ and Executive Order 13175
(Consultation and Coordination with Indian Tribal
Governments).\33\
---------------------------------------------------------------------------
\32\
\33\
---------------------------------------------------------------------------
Under S. 750, CBP must still comply with existing tribal
consultation policies under NHPA and Executive Order 13175.
III. LEGISLATIVE HISTORY
Senators John McCain and Jeff Flake introduced S. 750 on
March 17, 2015, and the bill was referred to the Committee on
Homeland Security and Governmental Affairs on March 17, 2015.
The Committee considered S. 750 at a business meeting on May 6,
2015.
During the business meeting, Senator McCain offered a
substitute amendment that clarified that S. 750 applied to CBP
activities in the Tucson and Yuma sectors within 100-miles from
the border with Mexico, included a provision that the Secretary
of Homeland Security shall make efforts to protect the natural
and cultural resources on Federal lands, and made a technical
correction. The McCain Substitute Amendment was adopted by
unanimous consent with Senators Johnson, McCain, Portman,
Lankford, Ayotte, Ernst, Sasse, Carper, Tester, Baldwin,
Heitkamp, and Peters present.
Senators Heidi Heitkamp and Tom Carper also offered an
amendment during the business meeting. The proposed Heitkamp-
Carper amendment would: sunset the increased access to Federal
lands in four years; require GAO to complete a comprehensive
report that would describe the impact of the increased access,
make recommendations on how best to improve the existing MOUs
between DHS, DOI, and USDA, and analyze the need for increased
access across the entire U.S. land border; and strike the
bill's definition of ``border security.''
After significant debate on the amendment by the Members,
particularly with regard to the definition of ``border
security,'' Senators Heitkamp and Carper agreed to modify their
amendment. The modified amendment retained the four-year sunset
originally proposed, but modified the required GAO report and
amended, rather than deleted, the definition of ``border
security.'' The Committee adopted the Heitkamp-Carper amendment
as modified by voice vote, with Senators Johnson, McCain,
Portman, Lankford, Ernst, Sasse, Carper, Tester, Baldwin,
Heitkamp, and Peters present. Senator Tester was recorded as
voting ``no.'' The Committee ordered the bill reported
favorably, as amended by the McCain Substitute Amendment and
the Heitkamp-Carper Amendment as modified, by voice vote, with
Senators Johnson, McCain, Portman, Lankford, Ernst, Sasse,
Carper, Tester, Baldwin, Heitkamp, and Peters present.
IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED
Section 1. Short title
This section provides the bill's short title, the ``Arizona
Borderlands Protection and Preservation Act.''
Section 2. Definitions
This section defines ``border security'' as ``the
functioning and operational capability to conduct continuous
and integrated manned or unmanned monitoring, sensing, or
surveillance of 100 percent of Southern border mileage within
the Tucson and Yuma sectors or the immediate vicinity of the
Southern border within the Tucson and Yuma Sectors; and the
apprehension or turn back of illegal entries across the
Southern border in the Tucson and Yuma sectors.''
This section also defines ``Federal lands'' to be those
lands within 100 miles of the international border between the
United States and Mexico that are within the Tucson and Yuma
sectors.
Section 3. Support for border security needs
Subsection (a) requires the Secretaries of Agriculture and
the Interior to provide CBP personnel with immediate access to
Federal lands for border security activities including routine
motorized patrols and the deployment of communications,
surveillance, and detection equipment. The Secretary of the
Interior and/or Secretary of Agriculture may provide CBP
personnel training on the natural and cultural resources on
Federal lands. Outside of border security activities, CBP must
continue to comply with existing laws with respect to
environmental reviews or other requirements.
In conducting these border security activities, CBP
personnel must also take steps, the maximum extent practicable,
to protect natural and cultural resources.
This subsection does not apply to any private or state-
owned land and will sunset four years after the date of
enactment.
Section 4. Report
Not later than 90 days before the four-year sunset, GAO
shall submit a report to the appropriate congressional
committees that includes: an analysis of the effectiveness and
impact of such access on border security activities and the
natural and cultural resources on impacted Federal lands; an
assessment of the 2006 MOU; and a sector-by-sector analysis of
the expected impact of applying the requirements of the bill to
the entire land border of the United States, as well as the
impact of illegal traffic on wildlife and natural, cultural,
and historic resources on Federal lands.
V. EVALUATION OF REGULATORY IMPACT
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
June 15, 2015.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 750, the Arizona
Borderlands Protection and Preservation Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Jeff LaFave
and Mark Grabowicz.
Sincerely,
Keith Hall.
Enclosure.
S. 750--Arizona Borderlands Protection and Preservation Act
Based on information provided by the affected agencies, CBO
estimates that implementing S. 750 would cost $1 million over
the 2016-2019 period, assuming the availability of appropriated
funds. Because enacting the bill would not affect direct
spending or revenues, pay-as-you-go procedures do not apply.
The bill would require the Secretaries of Agriculture and
the Interior to grant Customs and Border Protection (CBP)
personnel immediate access to federal lands in Arizona within
100 miles of the United States-Mexico border. That requirement
would end four years after enactment of the legislation. The
bill also would authorize the Secretaries to provide education
and training to CBP personnel related to natural and cultural
resources in the affected areas. Finally, the bill would
require the Government Accountability Office (GAO) to study the
effectiveness of actions taken under the bill and the effects
of illegal human traffic on natural, cultural, and historic
resources on federal lands.
An existing memorandum of understanding between the
affected agencies allows CBP personnel access to the affected
federal lands and provides for certain training activities
involving those agencies. Thus, CBO estimates that carrying out
activities required under the bill that directly relate to
border enforcement would have a minimal effect on the
operations of the affected agencies and would not affect the
federal budget.
Based on information regarding the cost of similar
activities and assuming the availability of appropriated funds,
CBO estimates that GAO would spend $1 million over the 2016-
2019 period to conduct the study required under the bill. Those
amounts would be used to cover personnel and travel costs
associated with the study.
S. 750 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contacts for this estimate are Jeff LaFave
and Mark Grabowicz. The estimate was approved by H. Samuel
Papenfuss, Deputy Assistant Director for Budget Analysis.
VII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
Because this legislation would not repeal or amend any
provision of current law, it would make no changes in existing
law within the meaning of clauses (a) and (b) of paragraph 12
of rule XXVI of the Standing Rules of the Senate.
VIII. ADDITIONAL VIEWS
----------
ADDITIONAL VIEWS ON S. 750 FILED BY SEN. HEITKAMP
The Federal government has a unique trust responsibility,
treaty obligations, and other requirements it must uphold when
interacting with our nation's Indian tribes--in particular, as
it concerns Federal laws or regulations that could or will
impact Indian lands. These obligations and responsibilities do
not cease or change from state-to-state. They guide any federal
interaction with tribes or proposed actions that could impact
Indian tribes or Indian lands--regardless of location. It is
imperative the Federal government's fiduciary responsibility to
tribes, which is built on the government-to-government
relationship and respect for tribal sovereignty, is not only
maintained and protected, but strengthened through mechanisms
such as ongoing, timely and meaningful tribal consultation. As
such, the Senate must always carefully consider anything that
could diminish the federal responsibility or impinge upon a
tribe's sovereign rights.
The committee report accompanying S. 750 is misleading in
its discussion of how S. 750 does or could impact U.S. Customs
and Border Protection (CBP) access to Indian lands--and does
not adequately address meaningful consultation requirements in
relation to access to Indian lands. Section 3 of S. 750--the
portion of the bill addressing CBP access to Federal lands--
does not apply to Indian lands. As such, Section II(E) of the
Committee Report is not applicable to CBP access to Indian
lands, and thus, shall extend no additional rights to any
agency of the Federal government that would look to gain access
to Indian lands under S. 750 and should not be misconstrued as
reflecting the understanding of all Committee members who
considered this bill.
Section 2 of S. 750 is the definitions section of the bill
and defines several terms in the underlying bill--including
``Federal lands.'' It defines ``Federal lands'' as ``all land
under the control of the Secretary concerned . . .'' with the
``Secretary concerned'' defined to include both the Secretaries
of Agriculture and Interior. A cursory search of legislation
would show that if legislation is intended to include Indian
lands, then the term ``Indian lands'' will be explicitly
referenced in the plain language of the legislation--and
oftentimes further defined in a definitions section. The term
``Indian lands'' is not defined in Section 2 of S. 750, nor is
it explicitly used anywhere in Section 3 of the bill when
discussing lands to which this Section will apply. If Section 3
was meant to include access to Indian lands, the term would
have been explicitly used and/or defined in the appropriate
sections. I therefore find that no reasonable reading of
Section 3 of S. 750 would find that Indian lands were meant--or
are--to be included in lands for which Section 3 is applicable.
Section 4 of S. 750 offers additional clarity in this
matter. In the requirement to do a sector-by-sector analysis of
the impact of increased access for CBP border security
activities, there is a clear statement that GAO should analyze
how these activities would impact natural, cultural and
historic resources on Federal and Indian lands. Section 4
clearly demonstrates that the drafters of this bill understand
the need to explicitly identify Indian lands as unique and
distinct when delineating which lands this Section is
applicable, demonstrating a clear distinction between Federal
and Indian lands. This plain reading of the legislative
language suggests that no reasonable reading of this bill could
be seen to include Indian lands within the definition of
``Federal lands'' in Section 2 or that Section 3 would be
applicable to Indian lands. As a further note, the ``Purpose
and Summary'' section of the committee report also references
only Federal lands--thereby also failing to illustrate an
explicit intent for Indian lands to be a necessary focus of the
underlying bill.
I would not support S. 750 if Section 3 of the bill--
providing CBP immediate and increased access to Federal lands--
was construed to include Indian lands. This would be an affront
to tribal sovereignty and the ability of the Federal Government
to uphold its trust responsibility to Indian tribes. This bill
does not provide such access to Indian lands as currently
written. As such, it was necessary I clarify and emphasize that
point.
Heidi Heitkamp.
ADDITIONAL VIEWS ON S. 750 FILED BY SENATOR TESTER
In order to ensure the security or trade and migration into
the United States, interagency cooperation is a key component.
In order to better facilitate a cooperative environment that
allows law enforcement agencies along the United States border,
a 2006 memorandum of understanding (MOU)\1\ was reached between
the Secretaries of Homeland Security, the Interior, and
Agriculture, in order to provide uniform principles that guide
their respective agencies' activities on Federal lands. While
not perfect, this guidance has provided a useful means by which
U.S. Border Patrol is enabled access to public lands for law
enforcement purposes--by-and-large without delay.
---------------------------------------------------------------------------
\1\Memorandum of Understanding Among U.S. Department of Homeland
Security and U.S. Department of the Interior and U.S. Department of
Agriculture Regarding Cooperative National Security and
Counterterrorism Efforts on Federal Lands along the United States'
Border 6 (2006).
---------------------------------------------------------------------------
The committee report for S. 750 uses Government
Accountability Office (GAO) reports to provide justification
for the bill. For example, on pages 4 and 5 of the committee
report, the Endangered Species Act (ESA) is cited as impeding
timely access for Border Patrol agents by stating that: ``The
2011 GAO Report\2\ found that five Border Patrol stations
reported that prolonged Section 7 consultation has changed the
timing and location of ground and air patrols due to the
presence of sensitive endangered species.'' Yet, a GAO report
upon which this report (testimony) is based, later states that
``although some delays and restrictions have occurred, Border
Patrol agents were generally able to adjust their patrols with
little loss of effectiveness in their patrol operations.''\3\
Further, the committee report omits mention of the 2010 GAO
findings that: ``Although 4 agents-in-charge reported that
delays and restrictions have affected their ability to achieve
or maintain operational control, they either have not requested
resources for increased or timelier access or have had their
requests denied by senior Border Patrol officials, who said
that other needs were more important.''\4\
---------------------------------------------------------------------------
\2\This is a misattribution. This is in fact, testimony of Anu
Mittal, Director of Natural Resources and Environment, Government
Accountability Office Before the Subcommittee on National Parks,
Forests, and Public Lands, Committee on Natural Resources, and the
Subcommittee on National Security, Homeland Defense, and Foreign
Operations, Committee on Oversight and Government Reform, House of
Representatives, April 15, 2011. Text is available at http://
www.gao.gov/assets/130/126072.pdf.
\3\Government Accountability Office, GAO-11-38, Southwest Border:
More Timely Border Patrol Access and Training Could Improve Security
Operations and Natural Resource Protection on Federal Lands 22 (2010),
available at http://www.gao.gov/new.items/d1138.pdf.
\4\Ibid Ppg. 34.
---------------------------------------------------------------------------
Moreover, the committee report cites the example from the
same GAO report of a land manager padlocking gates to roads
located inside San Bernardino National Wildlife Refuge because
the road crosses a portion of an endangered species habitat.
The GAO report, however, says, ``The patrol agent-in-charge
told us that Border Patrol and the refuge manager agreed to
place Border Patrol locks on refuge gates and to allow second-
level Border Patrol supervisors, on a case-by-case basis, to
determine whether vehicle access to the refuge is critical. If
such a determination is made, a Border Patrol supervisor
unlocks the gate and contacts refuge staff to inform them that
access was granted through a specific gate. The patrol agent-
in-charge told us that operational control has not been
affected by these conditions for vehicle access.''\5\
---------------------------------------------------------------------------
\5\Ibid Ppg. 32-33.
---------------------------------------------------------------------------
Additionally, the report language confuses the application
of current law. The report states that the bill would:
``Remove or limit the authority of United
States Department of Agriculture (USDA) and Department
of the Interior (DOI) land managers to conduct certain
reviews or set conditions;
U.S. Customs and Border Protection (CBP)
would remain subject to the mandates of the National
Environmental Policy Act (NEPA), the ESA, the
Wilderness Act and all other environmental or cultural
protection laws but would have immediate access to
federal lands;
Ensure that DOI and USDA cannot delay or
specify the terms and conditions under which CBP can
operate inside wilderness areas;
Prohibit DOI and USDA from asserting itself
as a lead, join lead or cooperating agency under NEPA;
Require CBP to still comply with the ESA and
participate in recovery plans and participate in
informal and formal Section 7 consultation but without
the participation of the land manager;
Would prohibit DOI and USDA from requiring
CBP to obtain a special use permit for
infrastructure.''
It is difficult to infer the drafters' intent of this
language, but it appears to exclude DOI and USDA agencies from
compliance with NEPA, ESA, etc., but purportedly to require CBP
to comply with each of these statutes. If that is an accurate
interpretation of intent, the bill does not reconstruct
environmental law in a way to shift responsibilities from land
managers to CBP. Instead, the bill states, ``notwithstanding
any other provision of law,'' in which the Secretary concerned,
such as DOI or USDA, shall provide immediate access to Border
Patrol. Such language is ambiguous and confusing. According to
a 2014 Congressional Research Service report: ``courts take
into account this expressed intent to override the provisions
specified in a ``notwithstanding'' clause, but when the clause
purports to override `any other provision of law,' its
preclusive scope is often unclear.''\6\ There has, in fact, not
been any litigation about Border Patrol activities in Arizona
under the environmental laws, whereas it is difficult to
predict how a court would interpret the language currently
included in the bill.
---------------------------------------------------------------------------
\6\Eig, Larry M., ``Statutory Interpretation: General Principles
and Recent Trends''. Congressional Research Service Report (97-589).
September 24, 2014.
---------------------------------------------------------------------------
It is for these reasons that I oppose S. 750. While certain
modifications or updates to the 2006 MOU may be in order, there
is no evidence that a stringent statutory requirement is
necessary to enable U.S. Border Patrol increased access to
public lands. The GAO findings cited in the committee report
for S. 750 instead provide evidence that most agents reported
that land management laws have had no effect on Border Patrol's
overall measure of border security and that border security
status has instead been most affected by stark terrain
features. Moreover, should this bill come into effect, it may
make U.S. Customs and Border Protection vulnerable to potential
lawsuits based on perceived violations of environmental laws.
Such lawsuits would potentially cost valuable taxpayer money
that could instead be used to enhance CBP's border security
capabilities where it deems them most important.
Jon Tester.
[all]