The plunge toward border wilderness

The case of bifurcated support for restricted access on the border

The Manjarrez Perspective

The plunge toward border wilderness

By Stephen L. Wilmeth

           

            In 2006, the conflict between CBP (Customs and Border Protection, or, hereinafter, Border Patrol) and the federal land management agencies along the Mexican border had grown combative enough that something had to be done. The access restrictions mandated by protective federal land designations and made yet more onerous by agency regulations on border lands stood in stark conflict with the need for unencumbered access by the Border Patrol. A mechanism short of codification of new border legislation had to be sought. The result was the 2006 Memorandum of Understanding (MOU) between DHS, DOI, and USDA. It was, by its title, intended to join the agencies in national security and counterterrorism efforts on the border.

            Retired Chief Patrol Agent (Sector Chief) Victor Manjarrez was the primary author of the document. In a recent exchange, Mr. Manjarrez maintains the document was a reasonable attempt to circumvent inherent protected lands access problems. In practice, though, he contends it can not nor has it solved fundamental conflicts since it was signed eight years ago.

            Without resolution, the grander problem still exists.

Designated wilderness is the dilemma, the Arizona Class smuggling corridors are the outcome, and Border Patrol cannot do its job with conditional access to border lands. Unencumbered access simply cannot be married to restricted access constraints without mortal conflict. Those who support border wilderness, the environmental societies and Mexican drug cartels, stand in stark contrast to those who oppose it, at risk Americans who concede the facts that these lands have become a conduit for transnational criminal organizations to operate with near impunity.

            Regardless how the words are packaged and spun, a gentleman’s agreement, which the MOU unequivocally is, cannot supercede federal legislation nor can it alter the invasion protection mandate set forth in Section 8. [15] of the Constitution.

As such … the 2006 MOU isn’t worth the paper it is printed on.

            The debacle

            The fundamental conflict is predicated on the designation of federal wilderness. Wilderness designation must be legislated by congress but the zeal to add to conservation legacies has stretched the spirit of the wilderness concept to mutable proportions. Designated wilderness precludes unencumbered access. In contrast, border lands, among all lands of United States territory, must have full, unencumbered, and seamless access in order to administer existing laws that address constitutional security assurances.  Border Patrol cannot protect the nation to the full extent of its mission mandate, and, at the same time, submit to access limitations regardless of how explanations are presented. It is a contradiction of gigantic proportions.

            The cornerstone of the entire Wilderness Act stands in juxtaposition to the representations of the wilderness creationists and the words of the MOU. The Act’s Section 4. (c) clearly states … “there shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats, no land of aircraft, no other form of mechanical transport, and no structure or installation within any such area”.

            The MOU itself is an exercise in land ownership subjugation. In the Responsibilities and Terms Specific to (the parties to the agreement sections), there are 21 covenants. Of that total, 17 are set forth for specific Border Patrol actions, limitations, or requirements. In the other four, DOI and USDA submit to providing environmental and cultural awareness training to Border Patrol, provide Border Patrol with studies on land and species impacts, assist in search and rescue if requested, and work to notify Border Patrol when their own law enforcement officials are in the area.

There would not be a business anywhere that would submit to such an unbalanced pledge of obligations unless it was fighting for its existence. Explicit in the demands on the Border Patrol are layered requirements predicated on words that reflect ‘must request in writing’, ‘must immediately meet’, ‘provide reports’, ‘may patrol, pursue, or apprehend at any time on foot or horseback’, ‘must repair roads’, ‘must minimize the adverse impacts to threatened or endangered species’, ‘notify’, ‘must immediately meet to resolve issues’, ‘coordinate’, ‘provide relevant statistics’, ‘consult’, and ‘work to provide reporting protocols’.

The corresponding requirements on the land agencies reflect the words of ‘will provide awareness training’, ‘assist’, and ‘work to establish protocols’. There is no equality of demands on the participating agencies. That leads Mr. Manjarrez to believe there is nothing in the MOU that guarantees anything to the Border Patrol. In fact, he reminds us that in section V. E. Miscellaneous Provisions, the Secretaries of Interior or Agriculture can cancel the agreement unilaterally with a 60 day notice. That contradicts the senatorial assurances to the public that the MOU is the primary mechanism that resolves any and all environmental and border enforcement conflict on federally protected lands.

The absence of defined actions leaves the local federal land agency manager with no alternative but to use his or her own discretion on each and every interaction with Border Patrol. When push comes to shove, the burden on Border Patrol for reporting requirements alone threatens the intent of the document. That is especially true if the local manager deems stalling requests his prevailing preference. Additionally, there exists no prohibition of the manager actually arresting or fining Border Patrol agents for doing their jobs if he judges them in violation of the MOU. That is a most egregious, underlying fallacy of the document.

The document, however, exists and it has become the convenient conflict resolution apparatus for advocating yet more border wilderness expansion.

The direction forward

Manjarrez, who is now the Associate Director of the National Center for Border Security and Immigration located on the campus of the University of Texas at El Paso, believes dramatic action must now be taken to salvage the defense of our southern border.

“We need to learn from our previous mistakes of designating protected lands anywhere near the border,” he lectures. “Those protected lands just become a conduit for transnational criminal organizations … every time and every place.”

Shouldn’t such a comment be taken seriously by elected representatives’ intent on mandating ever widening swaths of protected border lands?

Manjarrez is worried enough that he is advocating specific legislation codifying freedoms of access for his old employer. His reminder is that existing legislation mandates entry at any time and without prior warning on all private lands within 25 miles of the border. That legislation was predicated on fears that private citizens would be the likely facilitator of smuggling expansion. The irony that the grand smuggling corridors have grown on federal lands and there is no mandate for similar access cannot be dismissed.

“Only a person who does not care about border security would even consider designating or expanding a protected area near the international border,” he concluded.

Perhaps Mr. Manjarrez’ message needs to be forwarded to New Mexico’s senators Udall and Heinrich. They certainly don’t agree with his assessment. They put full faith in an MOU that can be cancelled by an appointed official.

Stephen L. Wilmeth is a rancher from southern New Mexico. “On macro matters of border security, Victor Manjarrez has simply never missed the mark.”