Wednesday, September 21, 2011

House measure would expand Homeland Security powers, waive environmental laws

I decided to post this article on my blog since I’ve received so much feedback on it. It appears there’s a lot of interest in this topic. This version will stay live after the original story has been archived on the Tribune’s website. – JSA

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A controversial bill that would give the Department of Homeland Security unprecedented authority over federal lands within 100 miles of the United States' border is making its way through Congress.

The proposed measure, called the "National Security and Federal Lands Protection Act," would let Homeland Security waive 36 major federal environmental protection laws in order to facilitate border patrol activities on public lands.

Supporters of the bill say it would give U.S. Customs and Border Protection agents more control in securing the nation's borders. Opponents argue that the measure is overly broad and would give Homeland Security unchecked authority to disregard major environmental laws on public lands, including wilderness areas, national parks and wildlife refuges among others.

Congressman Denny Rehberg, one of the 49 50 Republican co-sponsors of the measure, said the bill is aimed at giving border patrol agents the tools they need to secure the border.

"This bill is about ending a dangerous turf war being waged between various federal government agencies - and it's a turf war that is threatening America's national security," Rehberg said. "The simple idea of the bill is to provide the border patrol with the same access on federal land that it currently has on state and private land. There is nothing about this bill that creates any new authority to intrude into the lives of Americans."

Critics, including Democratic Sen. Jon Tester, say House Resolution 1505 is on par with the Patriot Act and REAL ID, in terms of granting the federal government unprecedented and overreaching powers.

"It's a federal land grab at its worst," Tester said. "I just can't see how any lawmaker would think it's a good idea to allow the Department of Homeland Security to make sweeping decisions about our land and ignore our rights without any public accountability."

The bill would give the secretary of homeland security total operational authority over all federal lands within 100 miles of the U.S. international and maritime borders. Under the proposed law, DHS would have immediate access to, and control over, any public land managed by the federal government for "purposes of conducting activities that assist in securing the border (including access to maintain and construct roads, construct a fence, use vehicles to patrol and set up monitoring equipment)."

In Montana, the law would impact nearly the entire northern third of the state, including Glacier National Park; portions of the Kootenai and Flathead national forests; The Flathead, Blackfeet, Rocky Boy's, Fort Belknap and Fort Peck Indian reservations, the Upper Missouri River Breaks National Monument, the Charles M. Russell National Wildlife Refuge, and tens of thousands of acres of Bureau of Land Management lands.

The measure also waives 36 major environmental laws, including the National Environmental Policy Act, the Endangered Species Act, the National Park Service Organic Act, the Federal Water Pollution Control Act, the National Historic Preservation Act and the Clean Air Act.

Homeland Security spokesman Matt Chandler said the agency does not comment on the specifics of pending legislation.

Kim Thorsen, deputy assistant secretary for law enforcement, security and emergency management at the U.S. Department of Interior, testified to the House Subcommittee on National Parks, Forests and Public Lands that the Obama administration opposes the measure.

"We recognize the significant ecological and cultural values of the extensive lands Interior agencies manage near the borders, and we strive to maintain their character and fulfill our mission to protect and preserve these assets on behalf of the American people," Thorsen said in written testimony to the committee. "We also believe that these two objectives - securing our borders and conserving our federal lands - are not mutually exclusive; we are not faced with a choice between the two, instead, we can - and should - do both."

According to Thorsen, HR 1505 would have a significant impact on the Interior Department's ability to carry out its mission to protect natural and cultural resources on federally managed and trust lands.

"As drafted, this bill could impact approximately 54 units of the national park system, 228 national wildlife refuges, 122 units of the National Wilderness Preservation System managed by Interior, and 87 units of BLM's National Landscape Conservation System, resulting in unintended damage to sensitive natural and cultural resources, including endangered species and wilderness," Thorsen wrote.

John Leshy, a University of California - Hastings, law professor and a former committee staffer, told the committee that compared with other legislation he has seen, HR 1505 is "the most breathtakingly extreme legislative proposal of its kind."

"I have grave concerns, not only about its wisdom as a matter of policy, but also its constitutionality as a matter of law," Hastings told the committee.

He also said that under the bill, Homeland Security's actions would be immune from court review, except for constitutional claims.

Supporters of the measure say that's exactly the point.

Zack Taylor, vice chairman of the National Association of Former Border Patrol Officers, said the foundational components of border security are national security and public safety. He said no other laws - including environmental protection laws - should ever supersede those foundational principles.

"What has happened is the importance on the environment has come to rule everything else," Taylor said in an interview last week. "In our view, the people are more important than the porcupine or the wolverine or the wolf or the grizzly bear."

Jane Danowitz, director of U.S. Public Lands for the Pew Environment Group, said the measure is part of a "disturbing trend" in Congress to undo environmental regulations in the name of public safety or national security.

"Anti-environmental bills that would never pass under their own merits are now being recast as solutions to some of the country's most pressing problems," Danowitz said. "We all care about national security and protecting our borders, but waiving core conservation measures is not the way to do it."

Supporters say the criticisms of the bill are overblown.

"HR 1505 isn't about creating new enforcement authority. Rather, it's about making existing laws actually work as intended by alleviating the regulatory burden of certain environmental laws," Rehberg said.

Rehberg said the bill is not just about preventing terrorists from entering this country, it also is about stemming the flow of illegal immigrants, drug smuggling and the abuse of public lands by criminals and drug cartels.

"At the end of the day, I never want to have to tell a Montana family that their loved one was killed by someone on drugs that got into our state because some federal bureaucrats couldn't work together to control the border," Rehberg said.

Tester said the bill has far greater implications than its supporters acknowledge.

"This is a whole lot worse than just granting agents access to certain federal lands. It gives one federal department the ability to run roughshod over the rights of law-abiding Americans and seize vast swaths of land we all own and use - with no public accountability," Tester said. "This nation is very capable of fighting terrorism without turning into a government police state, but that's exactly what this unpopular plan would do."

According to the bill's sponsor, Utah Republican Rep. Rob Bishop, the measure could see a mark-up before the end of the year.

7 comments:

Jed Link said...

NOTE: As Congressman Rehberg's Communications Director, I wanted to share with you the full responses Congressman Rehberg provided to questions posed about this legislation. John Adams did a fantastic job of getting input from all sides on this story. I submit these responses solely for the purpose of driving an informed debate about the merits of this legislation and Congressman Rehberg's motivation for supporting it. All quotes are from Congressman Rehberg.

“This bill is about ending a dangerous turf war being waged between various federal government agencies. And it’s a turf war that is threatening America’s national security. The simple idea of the bill is to provide the Border Patrol with the same access on federal land that it currently has on state and private land. There is nothing about this bill that creates any new authority to intrude into the lives of Americans. Montanans know I’m committed to making sure families are protected from terrorism, crime and the harmful impacts of illegal immigration. They also know I’m committed to the protection of their private property rights and public access to federal lands. There is nothing in this bill that pits those against each other. This legislation is simply about making sure that the Border Patrol has the same critical access to do it’s important job on federal lands as it has on non-federal lands. Bureaucratic turf wars should never be allowed to put Montanans at risk.”

Jed Link said...

1) Why does Rep. Rehberg support this bill?

“The U.S. – Canadian border is the longest land border in the world, and the Montana portion of the border is longer than every other state except Alaska. Montanans understand the importance of securing that border. It’s not just about preventing terrorists from entering this country, although that’s a big part of it. It’s also about stemming the flow of illegal immigrants who cost Montana our fair share of federal representation and resources. And it’s about addressing the illegal importation of drugs and the abuse of our public lands by criminals and drug cartels. This bill provides the Border Patrol access to do the job Congress has mandated, which is to gain operational control over the border. Since 1952, the Border Patrol has the authority to access private lands to accomplish this, yet on federal land a land manager can literally lock them out at the gates. That’s nonsensical and dangerous. At the end of the day, I never want to have to tell a Montana family that their loved one was killed by someone on drugs that got into our state because some federal bureaucrats couldn’t work together to control the border.”

2) Did anyone at DHS request this bill?

“The authors of the bill have worked directly with Border Patrol Agents on the ground. In fact, the bill is endorsed by the National Border Patrol Council which represents 17,000 Border Patrol Agents and the National Association of Former Border Patrol Officers. Borderland Ranchers have also been directly involved and testified in favor of the bill, (Online: http://naturalresources.house.gov/Calendar/EventSingle.aspx?EventID=234828).”


3) Do the memorandum of understanding agreements that are currently in place between DHS and the Depts. of Ag and Interior create serious burdens for DHS? If so, please provide specific examples.

“According to an October, 2010 General Accountability Office (GAO) report (GAO-11-38 online: http://www.gao.gov/new.items/d1138.pdf), the memorandum of understanding has simply not worked. It was meant to expedite Border Patrol access to public lands, but has left the Border Patrol with no recourse when the Department of Interior fails to live up to their side of the agreement. Simply put, the GAO report gives some pretty scary examples of federal land managers who have decided to ignore the memorandum of understanding and thereby leaving the Border Patrol literally waiting for months for necessary access.”

Jed Link said...

4) Do this MOU's pose a security risk to the United States? If so, please provide specific examples.

“The problem existed before the memorandum of understanding. The simple fact is, the U.S. Border Patrol is not able to get the access it needs to do its job protecting our borders. The memorandum requires the Border Patrol to obtain permission from federal land managers just so they can do their jobs. But it offers no recourse if that permission is denied or delayed. Again, the GAO report details many such delays. Permission can be denied for any variety of reasons, for example, the National Park Service has demanded millions of dollars from the Border Patrol for access. That’s why, privately, Border Patrol agents have described these negotiations as “blackmail and extortion.”

5) How would constructing fences or roads or installing surveillance cameras in Wilderness Areas or National Parks or on other federal lands improve national security?

“Wilderness areas in particular have become havens for criminal cartels because of their remoteness and because of the inability of the Border Patrol to create an adequate deterrence. Remember the Arizona fugitives who hid out in Montana’s back country (Online: http://www.foxnews.com/us/2010/08/11/security-tightened-northern-border-checkpoints-search-arizona-fugitive-fiancee/)? Or David Burgert who shot at police and then disappeared into the woods (Online: http://www.foxnews.com/us/2011/06/14/undersheriff-montana-manhunt-target-survivalist/)? Or the nearly $8 million dollars of marijuana recently found growing in the Lolo National Forest (http://www.kpax.com/news/lolo-national-forest-8m-pot-grow-detailed/). Criminal cartels don’t respect the Wilderness Act, therefore our Border Patrol is placed at a significant disadvantage. HR 1505 isn’t intended to place roads and surveillance equipment all over American federal lands. In fact, the bill limits these authorities to gaining operational control of the border. In areas where operational control exists, these authorities would not be needed.”


6) Do the existing federal laws named in the bill impede DHS's ability to safeguard Americans' security from international threats? If so, how?

“Yes, laws such as the Endangered Species Act, the Wilderness Act, and National Environmental Protection Act have been used to impede Border Patrol access. On the northern border, for example, the forest service has removed roads over the objection of the Border Patrol. If the Border Patrol cannot access the locations where illegal activity is occurring, they cannot reasonably be expected to do their job.”

Jed Link said...

7) Did Rep. Rehberg discuss his support of this measure with Montanans on his travels around the state? If so, what response did he get?

“At my invitation, the House Natural Resources Committee conducted a hearing entitled: “Border Security on Federal Lands: the importance of securing the Northern Border,” (Online: http://naturalresources.house.gov/Calendar/EventSingle.aspx?EventID=165169) The hearing was held on August 28, 2006 in Hamilton, MT. Among other things, we learned how drug traffickers used Forest Service and National Park property to land helicopters out of Canada and unload their cargo. Because of the remoteness and inaccessibility, it was a tremendous challenge to interrupt the criminals. Since that time, we have worked to find better ways, other than just more money, to allow the Border Patrol to get the access they need to detect and deter these activities. But I’ve also talked to Montanans at more than 80 public listening sessions, and almost without fail, someone always brings up the need to secure our borders. In fact, on a recent email survey, I asked “Will increased security measures on the border help curtail the flood of illegal immigrants?” (Online: http://rehberg.congressnewsletter.net/common/mailings/index.cfm?id=90) Of the 5,711 responses, an overwhelming 72% said “Yes.” And this isn’t a partisan issue. In February, Senator Tester said, "An investigation that I asked for revealed that Customs and Border Protection has control over just one percent of the northern border. That’s not acceptable. We need to use every effective and affordable tool to do better. Folks on the ground in Montana understand the need bolster border security, to keep our communities safe from illegal drugs, illegal immigration and terrorism.” (Online: http://tester.senate.gov/Newsroom/pr_021011_radar.cfm) Who can disagree with that?”


8) The Montana Legislature in 2005 overwhelmingly passed on of the nation's most strongly worded anti-Patriot Act resolutions. The measure contained the following:

...In accordance with Montana state policy, in the absence of reasonable suspicion of criminal activity under Montana law, the 59th Montana Legislature exhorts agents and instrumentalities of this state to not:

...initiate or participate in or assist or cooperate with an inquiry, investigation, surveillance, or detention under the USA PATRIOT Act if the action violates constitutionally guaranteed civil rights or civil liberties;

Question: Does Rep. Rehberg believe the National Security and Federal Lands Protection Act comports with the will of the Montana Legislature when it passed the USA PATRIOT Act resolution in 2005?

“Yes, because HR 1505 isn’t about creating new enforcement authority. Rather, it’s about making existing laws actually work as intended by alleviating the regulatory burden of certain environmental laws. This law has absolutely no impact on any Constitutional Right. The simple idea of the bill is to provide the Border Patrol with the same access on federal land that it currently has on state and private land. Again, let me stress that there is nothing about this bill that creates any new authority to intrude into the lives of Americans.”

Jed Link said...

9) Congressman Rehberg has decried the overreaching of the federal government on Montana's federal lands when it comes to the Department of Interior designating certain federal lands as national monuments or wilderness areas. Why then does he support giving the Department of Homeland Security unfettered ability to take control of all federal lands within a 100 mile region of Montana's northern border and engage in certain activities without due process?

“Protecting federal lands from criminals and terrorists is a far cry from a president unilaterally locking Americans out of their public lands with the stroke of a pen. The lands at issue in this legislation will still be managed and “controlled” by the Department of the Interior and the Department of Agriculture, but Border Security must not come second to the whims of federal land managers or environmental obstructionists. The 100 mile limit is consistent with the current statutory limit of the Border Patrol, no more, no less. We’re talking about a federal agency securing federal land, not cutting off access to Americans. If anything, this protects private land because it encourages the Border Patrol do their job on federal lands. The bill focuses on border security that will protect federal lands, not destroy them as we have seen the cartels do on some areas of the border.”

10) Blaine County Commissioner Vic Miller wrote a recent Op-Ed criticizing the measure, calling it a "dangerous bill" that could give DHS the power to "shut down any recreational activities, grazing, hunting, fishing, logging projects" without public involvement or due process. Does Congressman Rehberg agree with this assessment? If not, why?

“I certainly appreciate Mr. Miller’s concerns. This bill does not transfer authority away from the Department of the Interior or Agriculture to manage these activities on federal land. All it does is put federal land on the same footing as private land. Border Patrol has never shut down these activities on private land, and I can’t imagine they would need to do so on federal land. This is simply about protecting America’s borders.”

Jed Link said...

1) Why does Rep. Rehberg support this bill?

“The U.S. – Canadian border is the longest land border in the world, and the Montana portion of the border is longer than every other state except Alaska. Montanans understand the importance of securing that border. It’s not just about preventing terrorists from entering this country, although that’s a big part of it. It’s also about stemming the flow of illegal immigrants who cost Montana our fair share of federal representation and resources. And it’s about addressing the illegal importation of drugs and the abuse of our public lands by criminals and drug cartels. This bill provides the Border Patrol access to do the job Congress has mandated, which is to gain operational control over the border. Since 1952, the Border Patrol has the authority to access private lands to accomplish this, yet on federal land a land manager can literally lock them out at the gates. That’s nonsensical and dangerous. At the end of the day, I never want to have to tell a Montana family that their loved one was killed by someone on drugs that got into our state because some federal bureaucrats couldn’t work together to control the border.”

2) Did anyone at DHS request this bill?

“The authors of the bill have worked directly with Border Patrol Agents on the ground. In fact, the bill is endorsed by the National Border Patrol Council which represents 17,000 Border Patrol Agents and the National Association of Former Border Patrol Officers. Borderland Ranchers have also been directly involved and testified in favor of the bill, (Online: http://naturalresources.house.gov/Calendar/EventSingle.aspx?EventID=234828).”


3) Do the memorandum of understanding agreements that are currently in place between DHS and the Depts. of Ag and Interior create serious burdens for DHS? If so, please provide specific examples.

“According to an October, 2010 General Accountability Office (GAO) report (GAO-11-38 online: http://www.gao.gov/new.items/d1138.pdf), the memorandum of understanding has simply not worked. It was meant to expedite Border Patrol access to public lands, but has left the Border Patrol with no recourse when the Department of Interior fails to live up to their side of the agreement. Simply put, the GAO report gives some pretty scary examples of federal land managers who have decided to ignore the memorandum of understanding and thereby leaving the Border Patrol literally waiting for months for necessary access.”

Jed Link said...

4) Do this MOU's pose a security risk to the United States? If so, please provide specific examples.

“The problem existed before the memorandum of understanding. The simple fact is, the U.S. Border Patrol is not able to get the access it needs to do its job protecting our borders. The memorandum requires the Border Patrol to obtain permission from federal land managers just so they can do their jobs. But it offers no recourse if that permission is denied or delayed. Again, the GAO report details many such delays. Permission can be denied for any variety of reasons, for example, the National Park Service has demanded millions of dollars from the Border Patrol for access. That’s why, privately, Border Patrol agents have described these negotiations as “blackmail and extortion.”

5) How would constructing fences or roads or installing surveillance cameras in Wilderness Areas or National Parks or on other federal lands improve national security?

“Wilderness areas in particular have become havens for criminal cartels because of their remoteness and because of the inability of the Border Patrol to create an adequate deterrence. Remember the Arizona fugitives who hid out in Montana’s back country (Online: http://www.foxnews.com/us/2010/08/11/security-tightened-northern-border-checkpoints-search-arizona-fugitive-fiancee/)? Or David Burgert who shot at police and then disappeared into the woods (Online: http://www.foxnews.com/us/2011/06/14/undersheriff-montana-manhunt-target-survivalist/)? Or the nearly $8 million dollars of marijuana recently found growing in the Lolo National Forest (http://www.kpax.com/news/lolo-national-forest-8m-pot-grow-detailed/). Criminal cartels don’t respect the Wilderness Act, therefore our Border Patrol is placed at a significant disadvantage. HR 1505 isn’t intended to place roads and surveillance equipment all over American federal lands. In fact, the bill limits these authorities to gaining operational control of the border. In areas where operational control exists, these authorities would not be needed.”

6) Do the existing federal laws named in the bill impede DHS's ability to safeguard Americans' security from international threats? If so, how?

“Yes, laws such as the Endangered Species Act, the Wilderness Act, and National Environmental Protection Act have been used to impede Border Patrol access. On the northern border, for example, the forest service has removed roads over the objection of the Border Patrol. If the Border Patrol cannot access the locations where illegal activity is occurring, they cannot reasonably be expected to do their job.”

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