Wilmeth: Border Patrol, Land Laws, and Access Constraints

GAO-11-38 Revisited

Border Patrol, Land Laws, and Access Constraints

The Four that Stood Firmly

By Stephen L. Wilmeth

     The press dissected the GAO-11-38 report and concluded triumphantly that the Border Patrol was unfettered in its ability to effectively control the border in spite of federal land laws, or that they were able to fully patrol the border in 85% of the locations, or was it that the Border Patrol was able to overcome land law constraints if their agents underwent training in environmental and cultural awareness?  The clarity of the reporting was nearly as confusing as reading the GAO report itself. 

     The place to start with the report is to read the conclusion.  The conclusion said that because of the lack of resources or competing priorities, the land agencies have not been able to complete environmental and historic property assessments in a timely fashion to accommodate Border Patrol requests for access to federal border lands.  Furthermore, such tardiness may be missed opportunities to expedite the Border Patrol access to those federal borderlands.  The result is to “Give the Border Patrol more basic environmental and cultural resource training.”  If the situation was not so serious, laughing must be added as a second suggestion to the Border Patrol and to the American public!

     To start off trying to assess the report with some degree of objectivity, it is important to note that the Border Patrol is charged with extensive immigration laws that are rivaled only by the IRS tax laws in complexity and expanse.  Further, in their activities along the border on lands dominated by federal ownership and federal land agency management, they are obligated to adhere to the Federal Land Policy and Management Act, the National Environmental Protection Act, the National Historic Preservation Act, the Wilderness Act, the Clean Water Act, and the Endangered Species Act.  Their activities are further complicated by terrain, desert conditions, multiple language requirements, local laws and customs, state lands and laws, a militant environmental front, a left leaning press, a litigious society, and an onslaught of 22 different agencies that comprise the Homeland Security bureaucracy.  Almost as an afterthought, they must deal with a dangerous and endless army of illegal aliens attempting to breach the American border.    Supposedly, what they don’t have to contend with is any barrier of entry onto private American property within 25 miles of the border.

     So, the press breathlessly deduced that the Border Patrol has no constraints with any federal land laws that ultimately could interfere with national security.  It didn’t matter that 17 of 26 Border Patrol stations questioned admitted that the land laws have contributed to delays and or restrictive access.  It didn’t matter that 14 of 17 questioned admitted that they had been unable to get permits or permission to access areas in a timely manner.  It didn’t matter that the now infamous 2006 MOU directing cooperation among agencies of the DOI, DOA, and Border Patrol doesn’t work. 

     What the report detailed was a bureaucratic quagmire that makes any observer wonder how any capable individual can survive the morass of frustration and gobbledygook that the Border Patrol is expected to deal with and maintain any sanity.  Some examples are in order.

     In Texas, the Border Patrol was prohibited from cleaning brush from a flood plain in the Rio Grande channel that was a favorite entry point for illegal aliens.  They were not allowed to use lights at night for spotting those same illegals.  It was a breach of NEPA.

     In Arizona, the manager of Cabeza Prieta denied a request of the Border Patrol to extend its vehicular access into a particular area of wilderness by 1.3 miles.  The Wilderness Act disallowing mechanical access prevented such action.  It was somewhat ironic that the Fish and Wildlife Service had just reported that there were then some 8,000 miles of illegal roads and trails being used by cartels on those same lands. 

     The same manager curtailed helicopter flights over certain areas when endangered species were present.  The action required the Border Patrol to drop back from the border to patrol.  As an interesting aside, the suggested resolution by that manager was to develop a real time system to be able to detect where those endangered species were at all times so the helicopter flights could be diverted elsewhere!  Can you only imagine what that would cost?

     In Arizona, the Park Service did not allow the Border Patrol to install an important surveillance tower within wilderness in Organ Pipe Cactus National Monument.  At the same time of their rejection of the tower, the staff had reported that in a representative one square kilometer out in the Valley of the Ajos, in designated Wilderness, an unsuspecting hiker would encounter the following left by illegal aliens:

-          one set of bicycle tracks

-          one set of horse tracks

-          three illegal fire scars

-          40 sites of trash (excluding water bottles)

-          seven rest sites

-          15 sets of vehicle tracks

-          48 discarded water bottles

-          254 illegal foot trails!

     It should be noted that although it is the most restrictive of all land designations, designated Wilderness is not the only federal land where the access issue hampers the Border Patrol.  In Arizona, the Forest Service denied access into a particularly vulnerable access point in the Coronado National Forest because of the presence of an endangered species. 

     At the San Bernadino National Wildlife Refuge, the Border Patrol was put on a “three strikes and you’re out” type program.  At certain intervals the Fish and Wildlife Service would audit the access logs, and, if mechanical access was not confined to life threatening events, all access would be withdrawn and a special use permit system would be required for any and all access.

     In New Mexico, the Border Patrol filed a permit request to blade a road for patrol and surveillance.  The permit was an administrative requirement.  Eight months later they still hadn’t received permission for the work, but it didn’t matter any longer.  The illegal activity had moved elsewhere.

    In California, the Border Patrol was constrained to access certain Cleveland National Forest roads.  It was a result of an important travel management plan.  It wasn’t long before the need to access the road was resolved.  Illegals burned 19,000 acres of the forest land, thus eliminating the need for surveillance.  The underbrush was removed.

    The documentation of government dysfunction goes on and on.  What was reported in the results, however, must be understood by Americans who care about what is happening on the border.  The conclusion by the press that the land laws may cause some difficulty, but they do not interfere with matters of national security came from a single statement in the report. The GAO report stated that in only four of the of 26 station responses, national security was ultimately breached by the limitations imposed by the laws.   That was enough investigative reporting for the press. 

        Now, let’s assess that.  As an example, take a round of Russian roulette.  One bullet in six makes up the prevailing odds in Russian roulette.  That is almost exactly what the odds are in 4 out of 26 stations indicating that national defense is jeopardized by land laws.  Who wants to take those odds?  How about a birth control pill?  Are the odds of getting pregnant only one time in six chances something to go on national television and advertise for satisfactory effectiveness? 

     Should it be any different in dealing with matters of national security?  Does the fact that 22 out of 26 stations say that land laws don’t contribute to national security concerns provide adequate justification to represent there is no danger?  Just because there is only a 15% problem is there adequate validation that there is no problem on the border? That was exactly the general consensus reported by the press from scrutiny of the GAO report.  They determined that Border Patrol has no significant problem with land laws, therefore there isn’t a problem.  Not quite . . .

     The question must be asked, “Where are those stations?”  If they are in California, New Mexico, or any area other than the Big Bend in Texas, there shouldn’t be an access problem.  The Border Patrol has no designated wilderness access constraints in all of those except the noted exception. 

     If those stations are in the Tucson Sector of Arizona, though, all bets are off.   It is there that border wilderness and or de facto border wilderness dominate the landscape along the Mexican border.  It is there that the majority of the interagency missions are locked in conflict.  It is in the Tucson Sector that nearly half of all illegal alien and drug apprehensions occur.  It is in that Sector where the majority of assets and expenditures have been plowed over the last ten years, and it is in that Sector where record death and drug activity have continued to escalate even in the face of diminishing illegal alien intrusions on all borders. 

    It should come as no surprise that the Tucson Sector is where all of the Arizona Class Human and Drug Smuggling Corridors exist except one.  It is over the control of those corridors that the Mexican drug war is being fought.   It is also there that the cartels stand with the environmental community of the United States advocating more designated wilderness!

    It is disappointing that the GAO report is silent as to the disclosure of those stations because the report was ordered, in part, to determine the danger posed by the “gold standard” of land preservation, designated Wilderness.  It is understandable, though, that the patrol agents in charge of stations are tight lipped and noncommittal about the survey that contains their responses to GAO investigators.  They have been told to keep quiet for a variety of reasons not the least of which is national security.

     A little deduction, though, can be used to gain some insight.  If all of the stations are eliminated from the previously noted border areas that are not constrained by designated Wilderness access, there remain seven stations.  If a bit of qualified intuition is now applied and the phantom station names are arrayed against known designated Wilderness and de facto wilderness entry points, there are four, and, perhaps five, that stand out as the most likely candidates that admitted difficulty with access because of land laws.  Statistics indicate that those stations are in the bullseye of 92% of the flood of illegal human and drug smuggling activity that exists across the El Paso, Tucson, and Yuma Sectors of the Border Patrol.  Isn’t that interesting? 

     Utah Congressman Rob Bishop and New Mexico Congressman Steve Pearce have not forgotten the content of that GAO report.  The facts actually presented have gained legs and are again being assessed with expanded scrutiny.  It is getting harder and harder for the greater press and the administration to minimize the danger that the Arizona border has created for American security . . . the truth of the impact of federally owned and managed lands on that border is being revealed.       

Wilmeth reflected on Saturday, May 7, 2011. . . “The “parallel universe” phenomenon becomes very apparent when you sit in the midst of agency representatives, ranchers, and the environmental community and listen to their discussions.  Diverging missions make the border much more dangerous.  Those who have staked their entire life there on day to day endeavors have a much different perspective on the situation than do those who derive their career path on their station assignments . . . and most of those have divergent perspectives of those who have taken up a cause to expand an agenda.  What is alarming is that you get the sense that the whole affair  . . . has been created by mission creep of federal land agencies impacted by that very environmental agenda.”