That's constitutional lawyer John Leshy testifying Friday during a hearing of the House Subcommittee on National Parks, Forests and Public Lands. Leshy's comment was in reference to HR 1505, which was introduced by Representative Rob Bishop, a Utah Republican. The essence of Bishop's bill is that the Department of Homeland Security (DHS) is prevented from protecting Americans from illegal immigrants because border patrol agents must abide by an inter-agency Memorandum of Understanding when working on federal lands:
The memorandum of understanding requires Border Patrol officials to get permission from land-management agencies before conducting operations on federal lands, from maintaining roads to installing surveillance systems. ABC15.com
Opponents of HR 1505, which included Arizona's Democratic Congressman Raul Grijalva, said the bill is overly broad, frighteningly sweeping in its constitutional overreach, and potentially damaging to fragile ecosystems:
"1505 may succeed in decreasing immigration," [Grijalva said] "but only because the water, air and environments of border communities will be so degraded, no one will want to come here." ABC15.com
In addition to allowing patrols on all federal lands, the bill would permit DHS to build roads, fences, and other structures without approval from the federal agencies that oversee the territories. Nor would DHS have to consult with tribal communities or even private landowners before entering the areas. And the bill is not just about the border with Mexico; its 100-mile swath applies everywhere in the United States. Here's a map of the federal parks, wildlife areas, and other regions that would be affected.
HR 1505 is a flashpoint for the growing environmental and cultural debate along the border, where security is not just a matter of anti-Mexican politics. Here in Arizona, border walls and fences, for instance, cut through sensitive ecosystems whose streams, plants, and critters have never respected the artificial line that separates the US from Mexico. HR 1505 goes a step further: in all, the bill waives 36 environmental laws on federal, state, and private lands, including coastlines. The implications of the bill are staggering: for instance, DHS would be exempt from laws that protect the bald eagle, as well as Native American graves and other sacred or archaeological sites. The rights of private property owners are also put at risk by HR 1505.
Supporters of the bill include many local ranches and the usual anti-immigration voices. Gary Thrasher, a southern Arizona rancher, spoke Friday for the Arizona Cattle Growers' Association and National Cattlemen's Beef Association:
He said the National Environmental Protection Act; the Federal Land Policy Management Act; the Endangered Species Act; and "perhaps a dozen other federal acts and regulations," have effectively blocked the ability of border patrol agents to secure the border... Drovers Cattle Network
It's always those damn environmental statutes, some of which have been in place since 1899, that stop progress and threaten security. In addition to Congressman Grijalva, the bill is opposed by just about every federal, state, and nonprofit land-management agency, from the Forest Service to BLM.
"There is absolutely no restriction for Border Patrol to pursue anyone anywhere on federal lands," said [Kim] Thorsen, the Interior deputy assistant secretary for law enforcement, security and emergency management. ABC15.com
Speaking for the Obama administration, which does not support HR 1505, Secretary Thorsen laid out the staggering environmental implications of the bill:
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. Tucson Citizen
Joining Thorsen in opposition to HR 1505, the US Forest Service noted that a waiver system already exists for border agents to conduct surveillance, pursue immigrants, and build fences on federal lands, and that the system has been used successfully. In addition, a clear policy of inter-agency cooperation means law officials are not hamstrung by regulations:
USFS has routinely and expeditiously approved requests by DHS for forward operating bases, fixed and mobile surveillance structures, and road maintenance in the Coronado National Forest. Tucson Citizen
Why this extra-legal authority is needed is anyone's guess, but there they go again: threatening rights in the name of national security. What's particularly aggravating is that immigration and border crime are down, yet the righties keep yammering that the Obama administration is "not protecting the border," even though he has sent more agents and resources to the region than his predecessor ever did.
And while many Americans support a more secure border, this sweeping legislation would give unprecedented authority to one agency -- an agency whose expertise does not lie in the area of ecology or land management. More frighteningly, constitutional expert Leshy pointed out that HR 1505 is anything but transparent, and that different administrations could interpret their authority differently:
In sum, HR 1505 allows unelected executive branch personnel -- the DHS Secretary and all persons under him or her -- to make decisions and exercise power virtually without any check. Tucson Citizen