Position on S. 750, the Arizona Borderlands Protection and Preservation Act

S. 750, the “Arizona Borderlands Protection and Preservation Act” purports to provide “100 percent” access for the functioning and operations of the United States Border Patrol on national parks, national monuments, national forests, national wildlife refuges, and other public lands administered by the Secretaries of Interior and Agriculture within 100 miles of the border in Arizona by eliminating the rule of law on those lands. This includes the iconic Saguaro National Park right outside of Tucson, Arizona, as well as millions of other acres of national wildlife refuges, national forest, and national monuments. The bill does this in the name of achieving the unachievable goal of 100% surveillance, apprehension, and enforcement. In response to similar provisions in a House bill earlier this year, DHS Secretary Johnson stated that, “The bill is extreme to the point of being unworkable; if enacted, it would actually leave the border less secure. The bill sets mandatory and highly prescriptive standards that the Border Patrol itself regards as impossible to achieve, undermines the Department of Homeland Security’s capacity to adapt to emerging threats, and politicizes tactical decisions.”

The Department of Homeland Security and its agencies already have unprecedented authority to operate on federal public lands along the Southwest border. In many cases, their actions already fall under what the Congressional Research Service has characterized as the largest waiver of law in American history under the sweeping and unprecedented authority provided by the REAL ID Act of 2005. This waiver of federal, state, and local environmental and archaeological protection, historic preservation, and various administrative authorities already applies to, and continues to apply to, a number of activities at or near the border (i.e., construction, operation and maintenance of fixed and mobile barriers, sensors, lighting, roads, surveillance, communication, detection equipment of all types, radar and radio towers). There is no expiration date on this waiver and it is still in use in southern Arizona.

The use of this waiver has already cost taxpayers millions of dollars, damaged natural resources, and harmed Border Patrol assets. For example, in several areas, portions of the border wall have fallen down due to southern Arizona’s heavy summer rains. In other areas, it has been necessary to remove, redesign, and rebuild the wall to avoid such damage. This is the type of issue that would have normally been considered and dealt with prior to construction during the course of compliance with environmental and other administrative laws.

S. 750 would broaden the existing waiver by extending it to a waiver of all laws within 100 miles of the border and broadening the scope to “all border security activities.” Such a measure would lead to further damage on the ground and would undermine the increasingly effective and efficient coordination occurring between land management agencies and the Border Patrol and threaten the quality of life of border communities. Significantly, it would also deprive residents of Arizona and the nation the opportunity to systematically access information and provide input on proposed actions such as the construction of major tactical infrastructure. This Congress’ Homeland Security Committee has held no hearings to take input from the millions of Arizonans affected by the bill’s drastic proposed changes to public lands management.

On public lands areas north of the immediate vicinity of the border in southern Arizona, Border Patrol agents not only operate and patrol but live and work in a forward operating base and camps in Organ Pipe Cactus National Monument and in Cabeza Prieta National Monument, both of which are substantially federally designated wilderness areas. There are numerous surveillance and communication towers and other infrastructure now throughout southern Arizona’s public lands. Where the waivers do not apply, the Border Patrol has utilized environmental laws, including public involvement. No project has been blocked. The Border Patrol has stated on the record that as a law enforcement agency, it can achieve its mission while working in compliance with public land laws. In southern Arizona, there has been a significant increase in cooperation and leveraged resources under the auspices of the 2006 Memorandum of Agreement between the Departments of Homeland Security, Interior.

S. 750 is a bill looking to resolve a non-existent problem in a broad and heavy-handed manner. It harms the integrity of our laws, special places, wildlife, and does not protect the safety of southern border communities. We urge you to oppose this legislation.