Sunday, July 10, 2011

Hearings On H.R. 1505 - A Commentary

    On Friday, July 8th the House Subcommittee on National Parks, Forest and Public Lands held a hearing on H.R. 1505, the National Security and Federal Lands Protection Act, as introduced by Representative Rob Bishop (R-UT).  H.R. 1505 says “The Secretary of the Interior or the Secretary of Agriculture shall not impede, prohibit, or restrict activities of the Secretary of Homeland Security on land under the jurisdiction of the Secretary of the Interior or the Secretary of Agriculture to achieve operational control…over the international land and maritime borders of the United States.”  To accomplish operational control the legislation would waive 36 environmental statutes for 100 miles from our borders.
    Testifying for the Obama Administration were Jim Pena of the Forest Service and Kim Thorsen of USDI.  Testifying for the environmental community was law professor John Leshy. Testifying for the general public were Gene Guyant, National Association of Former Border Patrol Officers, and southern Arizona rancher Gary Thrasher testifying on behalf of various livestock organizations.
    Both Pena and Thorsen based most of their testimonies on the March 2006 MOU between their agencies and DHS.  They both spewed the same old political pablum we’ve all been hearing about this ineffectual MOU.  Read their testimony about the MOU and you will find references to “collaboration”, “coordinate”, “facilitating”, “efficient means of communication” and other such bureaucratic bunk.
    So let’s take a look at one law, the 1964 Wilderness Act, and see how the MOU is working.
    First I’ll quote the most relevant section of the Wilderness Act, Section 4(c) PROHIBITION OF CERTAIN USES, which states:

there shall be no commercial enterprise and no permanent road within any wilderness area designated by this Act and, except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act (including measures required in emergencies involving the health and safety of persons within the area), there shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical transport, and no structure or installation within any such area.

    The language is very clear: no roads, no motor vehicles, no motorized equipment and no structures or installations.  The only exception is for emergencies.
    Keeping in mind an MOU, which is an administrative action, cannot amend or overturn a statute, let’s see how they apply the MOU to Wilderness areas.
   The MOU does not prevent the Border Patrol from using motorized vehicles in Wilderness areas so long as there is an “emergency” and “a reasonable expectation” the suspects will get caught.   In other words the Border Patrol must be in “hot pursuit” to use motorized vehicles.
    So what if the Border Patrol is not in “hot pursuit” of a suspect?  The MOU states:

 CBP-BP agents on foot or on horseback may patrol, or pursue, or apprehend suspected CBVs offroad at any time on any federal lands.

    So there you have it.  In Wilderness areas the Border Patrol cannot patrol on a routine or regular basis except by foot or horseback.  They also may not use or place “mechanized equipment” such as mobile surveillance systems or electronic detection devices.
    Are you starting to see the need for a waiver here?
   Although probably unintentional, there is one part of Thorsen’s testimony about the MOU which is correct:

This MOU has not in any way impeded or impacted DHS’s ability to protect the border, including in exigent circumstances.

    She is correct…it has not had any impact.  The Borderl Patrol cannot obtain operational control of the border where Wilderness exists and the MOU has provided nothing to remedy that.  The problem is the Wilderness Act itself.  It’s as Gene Guyant testified:

    The inherent dangers of wilderness designations on our borders have been well documented, and are undisputed.
And let’s not forget, Senator Bingaman’s S. 1024 would create a quarter of a million acres of “inherent dangers” on our border with Mexico.

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