The Border, The Environment & Federalism: A Proposal and A Stance

The Most Critical Buffer

The First Front

Constitutional Line of Defense

By Stephen L. Wilmeth

 

            I had a discussion with the Border Patrol (BP) yesterday. They were on duty, and, as a matter of course, I always stop and visit with them when they are encountered on our ranch 30 miles from the border. It is a matter of good protocol and I relate to them what I have seen or what I have been told. I seldom see the same face twice.

            We talked, and, as usual, my comments were more open and conversational than theirs. Any semblance of teamwork between the rancher and a familiar agent is marginal. The modern agents are schooled in a demeanor of objectivity. I have kept a tally of the last ten such meetings and each time my greeting is offered with my handshake and my name. On not one occasion has a name been offered in return. I must assume that BP is guarding against cartel influence and internal affair threats, but every rancher I know wants and desires a more cohesive relationship with them. Our lives are at stake, too.

            The 2006 MOU

            In 2006, the Departments of Interior, Agriculture, and Homeland Security finalized and signed a Memorandum of Understanding (MOU) that outlined protocol for BP access into great swaths of federal lands along the border. Notwithstanding the fact the MOU cannot supercede federal statute and therefore would not stand any legal test in a court proceeding, the agreement filled the political void in the verbal debate in the impasse between federal land agency and BP restricted access confrontations.

            The MOU became a tool for Congressional delegations to argue against border citizens’ concerns the American border is under onslaught by foreign invaders. Those same citizens know it is far more dangerous when any BP patrol access is denied, delayed, or even altered.

            To test how the paper agreement is working in New Mexico, I have used my BP visits for closer scrutiny.  I’ve asked the same questions.  Every agent knows what the MOU is.  Not a single agent has any knowledge of it being ‘triggered’ in New Mexico.  Every agent is aware of its general purpose, but they know of no actual enforcement or even any actual restrictive entry obligations into the only official restricted access lands in the state, the Wilderness Study Areas (WSA).

            The truth of the matter is the MOU has never been used in New Mexico. WSA designations exist, but they pose no barrier to entry for ongoing, normal patrolling. That is the major reason most of the New Mexico border encounters only six percent of the onslaught of foreign invaders by border mile as compared to the onslaught on the Arizona border where restrictive access does occur.

            The Facts Revealed

            Whether it is Texans arming themselves against dangers in the Rio Grande Valley, New Mexico’s state government providing armed escorts for Department of Agriculture technicians to check border area livestock scales, or BLM employee restricted access without security into Arizona border National Conservation Areas the border is a dangerous place. The representation by ‘Environmentally First’ leaders to preach that the problem can be dealt with education, improved political channels, and environmental sensitivity has been proven to be bunk. Each and every matter of reassurance by those leaders over the last two years has been proven utterly false. 

To emphasize the point, the big three misrepresentations by those leaders include the truth in the cause of southern Arizona fires in the summer of 2011, the refinement of the truth of where restrictive federal land designations do create BP patrol gaps, and the revelation of the characteristics of smuggling corridors that have become a primary strategic mission for Mexican cartels for the movement of drugs. Without private citizen insistence of fact, those issues would still be cloaked in darkness.

There is also the realization in Border States the further from the border, the less likely leaders are to be interested in border issues beyond those that are politically inert (at least environmentally disconnected). That is particularly true in New Mexico where the number of higher profile leaders who actively fought against border wilderness designation over the last four years can be counted on the fingers of one hand. It has been the private citizens at risk who have done the heavy lifting on the political front.

The First Front

For those who face the Mexican border debacle, there is a need for cohesiveness in actions. If there was ever the need to create a new state, one that is united in its administrative borders, the war in Mexico has highlighted the lands involved. The state would be 2,000 miles in length and one or two counties deep, but it would be populated by Americans who wouldn’t have to fight for the hearts and minds of leaders who view the problem as theoretical rather than real. 

The Constitution sets forth the methodology of such an idea.  Article IV, Section 3 disallows any state from being formed within a state or formed by the junction of two or more states ... unless the Legislatures of the affected states agree along with similar action by Congress. 

Of course, there is no possibility that the four state legislatures involved would agree. In addition, the press and the environmental caucus in Washington would fight to their opponents’ death on allowing any such reasonable approach for the protection and best interest of Americans on the border, but the concept is an interesting one.

United by common foes (on both its northern and southern border), the new state, the First Front or Frontera Primera (First Frontier), would become a comprehensive zone of defense and buffer for the entire continental United States. It would be the true southern Port of Entry.  It would control deep water ports on both flanks. It could perfect the world’s most comprehensive food safety, noxious weed, and disease prevention control barrier. Agency actions could be unified, and it could become the first electronically connected state government. A state capital would not need to be built!

The Lesson Learned

The need for the Frontera Primera, though, is revealed. Common foes, first hand realities, great expanses of uninhabited territory, the need for seamless agency actions, and vested leadership are vital to the area and the entire United States.

The matter of the United States to feign its constitutional duty to protect its citizens from foreign invasion is also a factor. The truth is the United States has a much checkered past in the protection of its border citizens from foreign invasion. It can be argued that only when vested Americans are allowed participation in the process has it been successful (in fact, historical Texas Ranger candidates were sought from the local area knowing they would fight to the death for their homeland and families).

The growing realization that Mexico won’t and can’t fix its corrupted system is also a factor.  Knowing that the progressive element in the United States is fundamentally supportive of the chaos makes it all more important to build a barrier that can be controlled from local and regional governance.  First Front is becoming more important.

The Genesis

Not knowing the full extent of the ‘no borders’ and environmentalism first mentality in all counties facing the invasion, it must be assumed that the counties dominated by major urban areas might be antagonistic to any collaboration across the great swath of Frontera Primera. That would not be the case, however, in the all important conservation districts across the border. 

The leadership in those bodies has a very up front and personal view of the dangers. The majority are not inclined to view the border danger through rose colored glasses. They have personal investments, historical attachments, and families at stake.

Not taking away any respect for the courageous leadership being shown by state leaders in Arizona, the local conservation leadership across Texas, New Mexico, Arizona and California might be the most critical leadership base in the entire border state complex. The need is to reveal the importance to them.

First Front Membership

Any governing board for First Front Conservation District must be dominated by existing state conservation district board members. The appointed membership would elect their own slate of officers and would deliberate on the allowance to select at large membership. Their unity would be the common theme and their charge would be the Constitutional advocacy and well being of their stakeholders.

They must not allow any bureaucratic creep through the payment of wages or key executive kingdom expansion. If they were successful, perhaps they could serve as the forgotten model the Founders intended … the leadership of Americans independent of the corruption of personal and financial gain from empire creation, reliance, and expansion.

Stephen L. Wilmeth is a rancher from southern New Mexico. “For the most part, free and independent leaders at personal risk from their actions don’t exist in our government. It is a very serious threat to our existence.”

Tragedy of the Conceptual Resource: A Conservation District Stance

          By The Board of Supervisors, Dona Ana Soil &Water Conservation District

The statutory emphasis of environmentalism over sovereign rights in the West was altered in 1964 when the first of the modern, grand passion laws was passed by Congress.  The Wilderness Act became law.

The arrayed proponents and opponents of the Act were aligned along vocational and political lines. There was a contingent asking practical questions and worried sick about their existence.  There was another passionately defending the earth against mankind and determined to save it. 

The statutory underpinnings were overt.  The opening line of the text of the law actually references the need to preserve and protect the land from an increasing population of humans. 

That paragraph also delineated a totally new concept . . . the concept of an extrinsic resource (conceptual, nebulous and environmental) as opposed to an intrinsic resource (natural, traditional and physical).  Heretofore, resources were always physical in nature.  They could be touched, moved, transformed, and applied to productive pursuits.  They could be converted to food, products, and objects for the purpose of transactions.  They fueled, clothed, and created arbitrage in the economy.

Actually, the extrinsic resource was not new in the minds of man.  It can be argued it had always been implicit in good stewardship, but any physical properties and its trade value didn’t exist. The concept was elevated into the debate. It was blessed and approved by Congress, and  . . . the Western world has never been the same.

The gate was opened

By 1968, the expansion of this new, statutorily approved, conceptual resource was running wild.  The Forest Service was trying to maintain a degree of discipline in the management of the concept.  They called the process their ‘Sights and Sound Doctrine (Doctrine)’.

An example of the Doctrine was work done in setting the boundary of the expansion of the second designated Wilderness in the Gila National Forest, the Aldo Leopold Wilderness. The Forest Supervisor, intending to assure a wilderness experience, insisted on a boundary that precluded any direct visual contact with any manmade structures.  As such, the boundary was plotted so the road that existed between the new expansion of designated Wilderness and the original Gila Wilderness could not be seen. 

By 1968, stakeholders were being ravaged by the Forest Service’s implementation of their perceived wilderness management authority.  In addressing the escalating outcry, Congress declared that the Act could not be used to drive stakeholders, particularly cattle ranchers, from Forests.  As a result, Congress ordered the grazing rules to be rewritten. 

They also did something perplexing and pivotal.  They declared that the Doctrine be null and void.  Many now say that the action put the Forest Service in an administrative tailspin that has never been corrected.  The inertia of productive pursuits in the face of the conceptual resource was dramatic.  Environmentalism exploded.   

The conceptual resource emphasis was elevated over all foundational resource management. Boundaries that were always fraught with skirmishes that arose from the mismanagement of the commons were expanded. The world accelerated dramatically toward an ever expanding environmental adoration.

Expansion of the Passion Laws

The influence of the conceptual resource craze is abundantly clear in the successive passage of the next generation passion laws starting in 1969 with the National Environmental Policy Act (NEPA).  NEPA was followed in close succession by the Endangered Species Act (ESA) in 1973, the Federal Lands Policy and Management Act (FLPMA) in 1976, and the Clean Water Act (CWA) in 1977.

To get an idea of how much emphasis was placed in these laws for the protection of historical industries solely dependent on foundational resources, FLPMA is the best example to review.  A total of one half of one percent of all wording in the Act can be remotely interpreted as protective measures of resource dependent stakeholders.  The remainder, 99½ % of all wording, references the studies, contracts, disclaimers, appropriations, fees, suspensions, penalties, and terms and conditions under which those stakeholders must exist.  The law was hailed as landmark legislation for the nation.  The succession of the laws served as landmark environmental legislative models for the world. 

There is no longer any hint the laws were or are intended for the benefit of wise economic resource use.  They are intended for a belief system controlled by a largely nonresident minority who are obsessed with the management of intangibles and the power it extends to them.

Limited tools

            Leaders must recognize they have a limited arsenal of tools that can be used to defend against the onslaught.  Our Board, the Board of Supervisors of the Dona Ana Soil and Water Conservation District, has passed a series of resolutions that are intended to form the foundation for defending the soil and water resource stakeholder base we have pledged to protect. 

            Federal law gives us the promise of the first step.  In ESA (and elsewhere), the law requires the Secretary to make determinations solely on the basis of best scientific and commercial data.  He is explicitly ordered to accept into the process input from any political subdivision of government of which our District represents. 

            The law(s) further declares that federal agencies shall cooperate with those state and local agencies to resolve resource issues.  This Board intends to hold the federal agencies to that requirement.

            The Actions

            Two resolutions were passed during the December, 2011 Board meeting.  The first included a request to the BLM, specifically, and other federal land agencies, generally, to coordinate with the District at all stages of their planning process in the development of federal resource management activities that may impact the health, safety, and welfare of the citizens of the District.  No longer is it acceptable to learn of programs in arrears that appear in the Federal Register and have been conceptualized, formulated, and pushed from elsewhere.

            The second resolution is a request to the State of New Mexico to start engaging, on behalf of the citizens of this District (and the State), in the protection of those citizens from the ongoing and stepwise expansion of restrictive federal land designations without recourse or prior knowledge of such actions.  This board asks the Legislature to open debate and seek statutory adoption of measures to elevate the State of New Mexico into any and all preliminary, conceptual, anticipatory, guiding, and final discussions regarding federal land designation changes within the administrative boundaries of the state.

            The latter resolution concludes by asking the Legislature to adopt the demand that all pending designation changes be adopted and approved by the State of New Mexico before any federal action takes place.     

            Realization of Dilemma

            New Mexico’s Soil and Water Conservation District Act confounds the issue further.  The purpose of the Act is expansive, but the general directive set forth in ‘73-20-26. Legislative determination; purpose of act’ specifically requires Districts to conserve and develop beneficially the soil, water, and other natural resources of the state.

            More specifically, the statute sets forth the requirement to provide for flood control, preserve wildlife, protect the tax base, and promote the health, safety, and general welfare of the people of New Mexico.  In every example of designated Wilderness encountered and studied, it is arguably factual that not a single such requirement is protected much less expanded for community benefit.  Rather, the requirements are damaged and minimized. 

            As such, the Commission, coalitions of Districts, Districts, and any Supervisor who has sworn a pledge to uphold the law can reasonably expect that the law cannot be obeyed if restrictive federal land designations are adopted. 

Moreover, the management of extrinsic resources has proven to be antagonistic to that of intrinsic resources in the manner in which the federal policy has been implemented and applied.  This District has come to the conclusion that the widespread designation of such restricted land designations has been hugely destructive to the communities of the West.

The District's resolution on coordination with the BLM is here and the resolution on state involvement in federal land designations is here.

I sincerely hope everyone has carefully read the two items above. They provide three proactive action items that would be so beneficial to the people and the resources of the West.

In addition, spend some time contemplating the difference between extrinsic and intrinsic resources and the impact this type of legislative language can foist upon the public.

Congrats to Wilmeth and the DASWCD.  Let's see if others will follow suit.