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THE BORDER: ARE ENVIRONMENTAL LAWS AND

REGULATIONS IMPEDING SECURITY AND HARMING THE ENVIRONMENT?

JOINT HEARING

BEFORE THE

SUBCOMMITTEE ON NATIONAL SECURITY,

HOMELAND DEFENSE AND FOREIGN OPERATIONS

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

AND THE

SUBCOMMITTEE ON NATIONAL PARKS,

FORESTS, AND PUBLICE LANDS

OF THE

COMMITTEE ON NATURAL RESOURCES

HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

APRIL 15, 2011

Serial No. 112–34

Committee on Oversight and Government Reform

Serial No. 112–24

Committee on Natural Resources

Printed for the use of the Committees on Oversight and Government Reform

and Natural Resources

(

Available via the World Wide Web: http://www.fdsys.gov

http://www.house.gov/reform

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

DARRELL E. ISSA, California, Chairman

DAN BURTON, Indiana

JOHN L. MICA, Florida

TODD RUSSELL PLATTS, Pennsylvania

MICHAEL R. TURNER, Ohio

PATRICK T. MCHENRY, North Carolina

JIM JORDAN, Ohio

JASON CHAFFETZ, Utah

CONNIE MACK, Florida

TIM WALBERG, Michigan

JAMES LANKFORD, Oklahoma

JUSTIN AMASH, Michigan

ANN MARIE BUERKLE, New York

PAUL A. GOSAR, Arizona

RAU ́ L R. LABRADOR, Idaho

PATRICK MEEHAN, Pennsylvania

SCOTT DESJARLAIS, Tennessee

JOE WALSH, Illinois

TREY GOWDY, South Carolina

DENNIS A. ROSS, Florida

FRANK C. GUINTA, New Hampshire

BLAKE FARENTHOLD, Texas

MIKE KELLY, Pennsylvania

ELIJAH E. CUMMINGS, Maryland, Ranking

Minority Member

EDOLPHUS TOWNS, New York

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, District of

Columbia

DENNIS J. KUCINICH, Ohio

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

STEPHEN F. LYNCH, Massachusetts

JIM COOPER, Tennessee

GERALD E. CONNOLLY, Virginia

MIKE QUIGLEY, Illinois

DANNY K. DAVIS, Illinois

BRUCE L. BRALEY, Iowa

PETER WELCH, Vermont

JOHN A. YARMUTH, Kentucky

CHRISTOPHER S. MURPHY, Connecticut

JACKIE SPEIER, California

LAWRENCE J. BRADY, Staff Director

JOHN D. CUADERES, Deputy Staff Director

ROBERT BORDEN, General Counsel

LINDA A. GOOD, Chief Clerk

DAVID RAPALLO, Minority Staff Director

SUBCOMMITTEE ON NATIONAL SECURITY, HOMELAND DEFENSE AND FOREIGN

OPERATIONS

JASON CHAFFETZ, Utah, Chairman

RAU ́ L R. LABRADOR, Idaho, Vice Chairman

DAN BURTON, Indiana

JOHN L. MICA, Florida

TODD RUSSELL PLATTS, Pennsylvania

MICHAEL R. TURNER, Ohio

PAUL A. GOSAR, Arizona

BLAKE FARENTHOLD, Texas

JOHN F. TIERNEY, Massachusetts, Ranking

Minority Member

BRUCE L. BRALEY, Iowa

PETER WELCH, Vermont

JOHN A. YARMUTH, Kentucky

STEPHEN F. LYNCH, Massachusetts

MIKE QUIGLEY, Illinois

(III)

COMMITTEE ON NATURAL RESOURCES

DOC HASTINGS, WA, Chairman

EDWARD J. MARKEY, MA, Ranking Democrat Member

Don Young, AK

John J. Duncan, Jr., TN

Louie Gohmert, TX

Rob Bishop, UT

Doug Lamborn, CO

Robert J. Wittman, VA

Paul C. Broun, GA

John Fleming, LA

Mike Coffman, CO

Tom McClintock, CA

Glenn Thompson, PA

Jeff Denham, CA

Dan Benishek, MI

David Rivera, FL

Jeff Duncan, SC

Scott R. Tipton, CO

Paul A. Gosar, AZ

Rau ́l R. Labrador, ID

Kristi L. Noem, SD

Steve Southerland II, FL

Bill Flores, TX

Andy Harris, MD

Jeffrey M. Landry, LA

Charles J. ‘‘Chuck’’ Fleischmann, TN

Jon Runyan, NJ

Bill Johnson, OH

Dale E. Kildee, MI

Peter A. DeFazio, OR

Eni F.H. Faleomavaega, AS

Frank Pallone, Jr., NJ

Grace F. Napolitano, CA

Rush D. Holt, NJ

Rau ́l M. Grijalva, AZ

Madeleine Z. Bordallo, GU

Jim Costa, CA

Dan Boren, OK

Gregorio Kilili Camacho Sablan, CNMI

Martin Heinrich, NM

Ben Ray Luja ́n, NM

John P. Sarbanes, MD

Betty Sutton, OH

Niki Tsongas, MA

Pedro R. Pierluisi, PR

John Garamendi, CA

Colleen W. Hanabusa, HI

Vacancy

Todd Young, Chief of Staff

Lisa Pittman, Chief Counsel

Jeffrey Duncan, Democrat Staff Director

David Watkins, Democrat Chief Counsel

SUBCOMMITTEE ON NATIONAL PARKS, FORESTS AND PUBLIC LANDS

ROB BISHOP, UT, Chairman

RAU ́ L M. GRIJALVA, AZ, Ranking Democrat Member

Don Young, AK

John J. Duncan, Jr., TN

Doug Lamborn, CO

Paul C. Broun, GA

Mike Coffman, CO

Tom McClintock, CA

David Rivera, FL

Scott R. Tipton, CO

Rau ́l R. Labrador, ID

Kristi L. Noem, SD

Bill Johnson, OH

Doc Hastings, WA, ex officio

Dale E. Kildee, MI

Peter A. DeFazio, OR

Rush D. Holt, NJ

Martin Heinrich, NM

John P. Sarbanes, MD

Betty Sutton, OH

Niki Tsongas, MA

John Garamendi, CA

Edward J. Markey, MA, ex officio

(V)

C O N T E N T S

Page

Hearing held on April 15, 2011 .............................................................................. 1

Statement of:

Reyes, Hon. Silvestre, a Representative in Congress from the State of

Texas .............................................................................................................. 8

Vitiello, Ronald, Deputy Chief, U.S. Customs and Border Patrol; Kim

Thorsen, Deputy Assistant Secretary for Law Enforcement, Security,

and Emergency Management, U.S. Department of the Interior; and

Jay Jensen, Deputy Under Secretary for Natural Resources and Environment, U.S. Department of Agriculture .................................................. 18

Jensen, Jay ................................................................................................ 36

Thorsen, Kim ............................................................................................. 29

Vitiello, Ronald .......................................................................................... 18

Wood, Gene, National Association of Former Border Patrol Officers,

founding member and former sector Chief Patrol Agent, McAllen, TX,

and San Diego, CA; George Zachary Taylor, National Association of

Former Border Patrol Officers, founding member and retired Supervisory Border Patrol Agent, Nogales, TX; Jim Chilton, Chilton Ranch,

Arivaca, AZ; and Anu Mittal, Director, Natural Resources and Environment, U.S. Government Accountability Office, Washington, DC .............. 68

Chilton, Jim ............................................................................................... 130

Mittal, Anu ................................................................................................ 138

Taylor, George Zachary ............................................................................. 83

Wood, Gene ................................................................................................ 68

Letters, statements, etc., submitted for the record by:

Chilton, Jim, Chilton Ranch, Arivaca, AZ, prepared statement of ............... 132

Jensen, Jay, Deputy Under Secretary for Natural Resources and Environment, U.S. Department of Agriculture, prepared statement of ................ 38

Mittal, Anu, Director, Natural Resources and Environment, U.S. Government Accountability Office, Washington, DC, prepared statement of ...... 140

Quigley, Hon. Mike, a Representative in Congress from the State of

Illinois, prepared statement of ..................................................................... 173

Taylor, George Zachary, National Association of Former Border Patrol

Officers, founding member and retired Supervisory Border Patrol

Agent, Nogales, TX, prepared statement of ................................................ 85

Thorsen, Kim, Deputy Assistant Secretary for Law Enforcement, Security, and Emergency Management, U.S. Department of the Interior,

prepared statement of ................................................................................... 31

Vitiello, Ronald, Deputy Chief, U.S. Customs and Border Patrol, prepared

statement of ................................................................................................... 21

Wood, Gene, National Association of Former Border Patrol Officers,

founding member and former sector Chief Patrol Agent, McAllen, TX,

and San Diego, CA, prepared statement of ................................................ 70

(1)

THE BORDER: ARE ENVIRONMENTAL LAWS

AND REGULATIONS IMPEDING SECURITY

AND HARMING THE ENVIRONMENT?

FRIDAY, APRIL 15, 2011

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON NATIONAL SECURITY, HOMELAND DEFENSE AND FOREIGN

OPERATIONS, COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, JOINT WITH THE SUBCOMMITTEE ON NATIONAL PARKS, FORESTS, AND PUBLIC LANDS, COMMITTEE ON NATURAL RESOURCES,

Washington, DC.

The subcommittees met, pursuant to notice, at 9:30 a.m., in room

2154, Rayburn House Office Building, Hon. Rob Bishop (chairman

of the Subcommittee on National Parks, Forests, and Public Lands)

presiding.

Present from the Subcommittee on National Security, Homeland

Defense and Foreign Operations: Representatives Chaffetz, Labrador, Tierney, Lynch, and Quigley.

Present from the Subcommittee on National Parks, Forests, and

Public Lands: Representatives Bishop, Labrador, and Kildee.

Also present: Representative Pearce.

Staff present: Thomas A. Alexander, senior counsel; Brien A.

Beattie, professional staff member; Molly Boyl, parliamentarian;

Kate Dunbar, staff assistant; Mitchell S. Kominsky, counsel; Kevin

Corbin, staff assistant; Carla Hultberg, minority chief clerk; Chris

Knauer, minority senior investigator; and Lucinda Lessley, minority policy director.

Mr. BISHOP. All right. We are ready to start here, and some of

our other colleagues will be joining us, and we will see how far we

can get in this process. As you all know, there is a change in the

schedule today, for truly unusual circumstances, so we will be interrupting as time goes on for votes repeatedly. We apologize for

that. What we will do is simply go over. It will be one vote at a

time. So we run over, come back, probably no more than a 10, 15-

minute interruption as we go with that.

So, with that, I am going to call this hearing to order. I note the

presence of a quorum, which is pretty low bar for us here today.

The Subcommittee on National Security, Homeland Defense and

Foreign Operations and the Subcommittee on National Parks, Forests, and Public Lands are meeting today to hear testimony on how

environmental laws and regulations impede border security operations and even harm the borderland environment.

2

So, under the rules, the opening statements will be limited to the

chairmen and the ranking members, whenever they show up, and

so we can hear from our witnesses more quickly. However, I will

ask unanimous consent to include any other Members’ opening

statement in the record if submitted to the clerk by the close of

business today. Hearing no objection, that will be so ordered.

I also ask unanimous consent that the gentleman from Texas,

Mr. Reyes, who has asked if he could make a statement in the

hearing, be allowed to be our first witness of the day if he is here

when we reach that time, otherwise when he gets here we will interrupt you and allow that to take place. With no objection, that

is ordered. I just banged the gavel.

I also ask unanimous consent that the gentleman from New Mexico, Mr. Pearce, when he arrives be allowed to join us on the dais

and introduce one of the witnesses and participate in this hearing.

Once again, without objection, so ordered.

And I will make my opening statement after my colleagues have

had a chance to speak. So I will now recognize the chairman of the

Subcommittee on National Security, Homeland Defense and Foreign Operations for his opening statement. Mr. Chaffetz.

Mr. CHAFFETZ. Thank you to my colleague and friend and chairman, Mr. Bishop.

Today, we are examining the extent to which Federal environmental laws and regulations affect the ability of law enforcement

to patrol and secure our borders. We also examine the extent to

which restrictions placed upon border patrol agents are actually

harming the environment.

Since December 2006, the drug cartel-related violence in Mexico

has continued to escalate in both frequency and intensity. In Mexico, almost 3,000 people were killed in 2007. That number increased to almost 7,000 in the year 2008, more than 9,500 people

killed in 2009, and by 2010 that number is now over 15,000.

According to reports, most of these crimes occurred in or within

a short distance of the U.S. border towns, and Americans have also

suffered. Three U.S. law enforcement officers have been injured or

lost their lives in recent months. On February 15, 2011, two U.S.

Immigration and Customs Enforcement agents, Zapata and Avila

were both shot in the line of duty. Mr. Zapata later died from his

injuries. In December 2010, U.S. Border Patrol agent Brian Terry

was fatally shot near Tucson, AZ, while attempting to prevent

criminal activity along the border.

Now, at this point, I was going to show you some of the brutal

photos. Having reviewed those photos, they are so graphic and so

disturbing I worry about sharing them in this format here.

This deep and continuing increase of violence just across our

southwest border raises serious concerns for the public and Members on both sides of the aisle. The Department of Homeland Security is responsible for securing the U.S. border. In response to illegal activity at the southwest border, including illegal activities occurring on Federal land, the Department of Homeland Security has

in the last few years increased the amount of agents and resources

directed toward preventing human smuggling, drug trafficking,

kidnapping, and illegal immigration. Despite the increase of Federal resources Richard Stana, Director of Homeland Security issues

3

at the GAO, the Government Accountability Office, has identified

gaping holes in our border security strategy. Just recently Mr.

Stana testified that there are only 129 miles of the roughly 1,954

mile long southwest border where the border patrol can actually,

‘‘deter or detect and apprehend illegal entries.’’ So let me repeat,

only 129 of the nearly 2,000 miles are adequately secure.

This is unacceptable and the Federal Government should be

ashamed. With the Federal Government spending billions of dollars

on flawed border security strategy, we must find a better solution

that is comprehensive, intelligent, and cost effective. Because of the

Department of Homeland Security’s inability to secure much of the

border, our national security depends on Border Patrol’s access to

Federal lands.

In 2006, the Department of Homeland Security, Department of

Interior, and the Department of Agriculture all entered into a

memorandum of understanding. The purpose of this MOU was to

guide and facilitate Border Patrol activities on Federal lands. It

also sought to ensure that concerns about protecting the environment would be addressed.

The MOU emphasized the need for cooperation and timely responses by Federal land managers to requests by the Border Patrol. According to the MOU, the parties agreed to cooperate and do

so, ‘‘in an expedited manner.’’ However, a recent GAO report authored by Ms. Mittal indicated that, ‘‘cooperation has not always

occurred,’’ between Department of Homeland Security, Interior and

the USDA. They will be testifying today all on the same panel.

Border Patrol agents in charge of 16 of the 26 stations have told

the GAO that, ‘‘when they attempt to obtain a permit or permission

to access portions of Federal lands, delays and restrictions have resulted from complying with land management laws.’’

I fully support the utmost protection of our environment and

multiple uses of public lands, but at the same time we must listen

to the Border Patrol agents who put their lives on the line every

day. Some agents have asserted that delays resulting from environmental laws have, according to Ms. Mittal’s report, ‘‘lessened

agents’ ability to detect undocumented aliens.’’ Again, this is totally

unacceptable.

An unsecured border is a national security threat. The sooner

this administration realizes this fact and acts accordingly, the safer

we will all be.

I look forward to hearing from our panel of witnesses. I appreciate all of you, the time, effort. Many of you have travelled from

great distances. We appreciate you being here today. I yield back

the balance of my time.

Mr. BISHOP. Thank you. Representative Grijalva, who is the

ranking member on my subcommittee I see on the floor. So I know

he is here with us in spirit, and as soon as he arrives, he will be

recognized to give any opening statement if he would wish to do

that.

We do have the ranking member from Government Ops, whatever your title is now, here. I appreciate Mr. Tierney for joining us

and I will recognize him for as much time as he wishes to make

an opening statement.

4

Mr. TIERNEY. Thank you, Mr. Chairman, and thank all of our

witnesses that will be testifying today.

The question posed by today’s hearing is whether environmental

laws prevent the Border Patrol from safely securing our border.

The unanimous answer in written testimony from the Border Patrol, the Department of the Interior, the Department of Agriculture, and the Government Accountability Office appears to be

no.

As Chief Vitiello made clear in his testimony, border security and

environmental stewardship are not mutually exclusive. Let’s not

make an attempt to create a false choice where none exists. Of

course, the Wilderness Act and other environmental laws place

some restrictions on the Border Patrol’s operations in sensitive

areas, but according to the bulk of testimony that we will receive

today, those restrictions impose a relatively low burden that has

been successfully managed through interagency cooperation.

Mr. Chairman, this isn’t to say that there are not serious incursions on our border. We know, for example, that drug smugglers

and human traffickers continue to use Federal lands to perpetrate

their illegal activities. Nonetheless, while some of these lands are

used to commit illicit activity, many are also home to precious environmental resources, cultural heritage sites, and endangered species.

The message from today’s hearing is that the Border Patrol believes that it can effectively achieves its border security mission

and be a responsible steward of the environment at the same time.

The Department of the Interior and the Department of Agriculture

agree, and the Government Accountability Office, which has studied this issue extensively, concurs.

This committee is no stranger to the challenges posed by securing the southern border and the ongoing violence in Mexico. In the

last Congress, for example, the committee held several hearings examining the security threats posed by drug cartels in Mexico and

Federal strategies to confront those challenges. Tragically, over

30,000 citizens of Mexico have been killed there in the last 4 years

in wanton drug violence.

There are many real challenges that undermine our mission to

secure our borders, but almost by all accounts today environmental

restrictions are not one of them.

Mr. Chairman, I look forward to working with you to identify

and tackle the very real challenges that do confront our border security. Thank you.

Mr. BISHOP. I thank the gentleman for his opening statements.

I am prepared to give mine at this particular time.

Look, I am glad that we are all here on this particular process

and especially that we will be joined by a couple of people. Representative Grijalva, who will be here soon, Representative Giffords, who we pray for a speedy recovery to soon join us, and Representative Pearce, who has joined us on the dais represent the

areas that are most impacted, and I appreciate their significance

and their problems as they try to tell their constituents why they

are being inundated with a problem that basically has solutions

that we could find here in Washington if we wished.

5

The issue is illegal entrance into this country. I think the bottom

line has to be that it is unacceptable, even one is unacceptable, but

what is happening today is unacceptable. Homeland Security, the

Forest Service, and Department of Interior all have the responsibility in here, and the bottom line is what you are doing isn’t working. The status quo is unacceptable. If things are getting better—

and the GAO report said in some areas it is getting better—that

is positive, but it is not good enough, and it is not just people coming across the border searching for a better life.

What is a concern for us is that the people who are coming

across the border are the drug cartels who are destroying the lives

of our kids with illegal drugs. There are prostitution rings. There

are human traffickers. There are people who are being assaulted

and raped and murdered on American land, and that is unacceptable. And what is worse, American citizens living in this area are

being threatened and being killed, and that is simply unacceptable.

If I can have map 2 up there which shows all the regions that

have been coming here from the last bit of data. Now, some of

those regions are doing very well. I think the number of people who

have been apprehended in Maine, I think the number is 56, which

shows that Canadians from Nova Scotia are not coming here to

take our hockey jobs. But in each of the last 2 years for which we

have numbers, it is about a half million people have been apprehended. That is the ones we caught, not the ones who came in. And

if you look at the numbers, a quarter of a million of all those went

through the Tucson sector by itself. Fifty-one percent of those who

are coming into this country are coming in through that one sector,

and no wonder you can understand why Arizona reacted the way

it did and passed legislation in their State legislature because that

is almost a thousand people a day being apprehended through their

sector alone, and Tucson isn’t all of Arizona. You have Yuma in

there at the same time.

So the question has to be why is that the access of choice for

those coming in here? Can I have map 1. This is the borderland

by definition and borderland is a hundred miles above the border.

Everything red on that map is owned by the Federal Government.

In places where we are having success, there is not a whole lot of

red. In the places where the problem exists it is red. The GAO report said 97 percent of all the apprehensions are now coming on

Federal lands.

When we built the fence, 36 laws were waived in order to build

the fence. One makes the assumption that those 36 may indeed

have a reason in the problem that Border Patrol has in securing

the borders right now. Department of Interior, I am sorry, but your

response so far has been No. 8, which is to set up a sign telling

Americans not to go on American property. Now, the outrage at

these signs for secure was major, and you pulled them down which

is right, but the attitude has not changed. A sovereign country has

to control its sovereign lands, and we are not doing that and that

is simply unacceptable. It is still unsafe for Americans to go into

America, and that is simply unacceptable.

A representative from Homeland Security will come in here and

basically tell us that things are fine, we are getting along, we are

improving. I just want you to know I don’t buy it. I don’t buy it

6

because the logical assumption of that testimony means Border Patrol is incompetent to do their job, and I don’t believe that for 1

second. I believe the Border Patrol is competent to do the job, but

there are frustrations with the Department of Interior and the Forest Service, and if I can have No. 4, I believe, that prohibits them.

These are the old barriers we used to have along the border.

They have been removed as we have gotten better barriers, and

now one land manager, under the direction of the Department of

Interior, used these borders not to secure the border but to stop the

Border Patrol from entering into areas he did not wish them to

enter. That is unacceptable.

The Border Patrol can do their job if they are allowed to do their

job. Even Senator Bingaman, who is not a hawk on the border, introduced a wilderness bill for New Mexico and recognized in his bill

that there should be a 5-mile strip along the border in which the

Border Patrol have total access. He got the right idea. He just had

the number wrong. Five miles doesn’t cut it.

The GAO report that came to us, a lot of people have taken one

sentence out of context, which said that 22 of the 26 stations said

things are fine, unaffected by land management practices. However, if you read the entire report and went down to page 32, you

would see that what they said is, in other words, no portions of

these stations’ jurisdiction has had their border security status,

such as controlled, managed, or monitored, downgraded as a result

of land management laws. To me, that is not the same thing, especially if you look at the rest of the report and see how 17 out of

26 of the stations said they did have monitoring delays and portions of their programs were delayed; 14 out of 17 did say they

could not get waivers from land managers in a timely manner. The

majority did say cooperation has not always occurred. The data is

not accurate, as it says some land managers monitor areas in a

routine basis, some document on an ad hoc basis, still others collect

no data at all.

The EIS statement can take over 75 days to accomplish. Three

out of seven said the wilderness restrictions cause a problem for

them. Five out of seven said the Endangered Species Act causes a

problem for them. There was one area in Arizona it took 4 months

to get permission to move a mobile surveillance system, and the

reason for it, according to the manager down there, he has limited

staff with numerous other priorities. This was not important to

him.

In a place in Arizona it took 6 months to get permission to improve roads that the Border Patrol needed on Bureau of Land Management land to conduct patrols and surveillance equipment; 8

months in another area to allow improvements for truck transportation to move an underground sensor that didn’t take place.

I find it interesting that in some places it simply never happened. The Border agent in charge told us that maintenance needed for five roads and two surveillance system sites within the station of operation, but they did not receive permission at all. So

without these maintained roads the agents could not conduct routine patrols or reach the sites for mobile service systems even in

an area of high illegal traffic.

7

In another area where there are few roads, the agent said one

additional road on an east-west corridor close to the border would

be effective to combat the 8,000 miles of trails that undocumented

workers have produced in this particular system.

In another area of the National Forest, they actually approved

for helicopter landings, because of its remoteness, and that is great,

but unfortunately everything was delayed until 2011. Contrasting

two previous examples when Border Patrol requested additional access in another national park wilderness area, the management

land manager determined that additional Border Patrol access

would not improve the protection of the resources. So what happened is they put those surveillance on land that is owned by the

State of Arizona, not by the Federal Government, and it still created a 3-mile hole in the surveillance for undocumented workers.

The land manager requested the Border Patrol to find a different

location for the tower because of Wilderness Act restrictions and he

explained that the Border Patrol did not demonstrate to him that

the proposed tower was critical. He made the final decision, not the

experts on the Border Patrol area.

And I am sorry, the witnesses will tell you the memo of understanding is working; no, it is not. I am glad that you are becoming

chummier with the memo of understanding, but the memo of understanding is not the same thing as border security. The memo of

understanding is not a solution. It is a process and the process that

the numbers show you on the first slide is simply not working.

The results of that memo are unacceptable. The memo has failed.

It was designed to fail, and it prohibits the Border Patrol from simply, in fact, actually doing their job. What the memo does is confer

what people on the ground have contended and what Washington

has denied. What we have to do is regain control of our lands from

the drug cartels. National security has to be our No. 1 issue. To

take the phrase from Bill Clinton, it’s national security, stupid.

If the fence needed 36 waivers to be done, Border Patrol needs

those same kind of situations. Border Patrol should not be stopped

or inhibited in anything they try to do. The environment is being

trashed by illegal entry. It is not national security that is threatening our environment. It is the lack of national security that is

threatening our environment.

The Department of Interior must have better priorities so that

human life takes a higher priority over what they are looking right

now with the blinders they have. Environmental laws and border

security are in conflict.

You are going to hear a lot of spin today especially from the next

panel of witnesses. One may hope, if I can phrase once again from

Man for All Seasons, that when your head quits spinning it will be

facing toward the front. What is happening right now is not acceptable and it has to change.

All right. I appreciate your patience in that. Once again when

Mr. Grijalva arrives, we will have his opening statement. I want

to thank you. We have previously recognized Mr. Reyes, who will

be here. We approved your presence here. We noted that you would

be the first speaker for us. Your timing is impeccable. You came

at just the right time to give your statement, and we appreciate the

service and the history that you bring to it as one of those Border

8

Patrol workers that did such a great job in an area where you were

allowed to do a great job.

You are recognized, Mr. Reyes.

STATEMENT OF HON. SILVESTRE REYES, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS

Mr. REYES. Well, thank you, Mr. Chairman, and Mr. Chairman

as well, and Ranking Member Tierney, and I know Ranking Member Grijalva is probably on his way. I just saw him speaking on the

floor. But thank you for giving me an opportunity to be here to

lend my comments to the very important work that your two respective committees are doing.

I guess one of the real first points I want to make and underscore is oftentimes we that both represent border districts and

those that are elected to leadership positions in the border area get

frustrated because decisions made here, particularly at the Federal

level, often impact the communities and the relationship between

communities and the Customs and Border Protection and other law

enforcement agencies that have very important work to do to secure the Nation.

So I want to tell you how much I appreciate the opportunity not

just to be here this morning, but I actually was part of a field hearing that you did in Brownsville, TX, where the community got a

chance both to testify and also to observe a hearing in process.

Just last week the Committee on Homeland Security on the Senate side, Senator Lieberman’s committee, asked my county judge to

come up and give testimony. So she was up here and in fact made

a number of points that I want to reinforce here this morning.

First of all, I represent the safest city in the United States of

over 500,000 people or more. It is interesting to note that five of

our border cities, to include the two largest ones, El Paso and San

Diego, and McAllen, Laredo and Tucson are in fact on the top 10

list of safest cities in the country. The reason I mention that is because oftentimes the rhetoric does not match what we are experiencing, those of us that live on the border. The border is not a lawless region. The border is not an area that is out of control. I can’t

say enough about the work that Border Patrol is doing. I can’t say

enough about the cooperation that exists to make sure that border

communities are secure, feel secure, and our job is to make sure

that the facts come out.

So when we talk about the border region I would strongly recommend that you do a series of hearings, in particular maybe in

those cities that are among the safest cities in the country.

I speak from a perspective of having spent 261⁄2 years working

the border, working my way up from an agent, working 5 years in

the Del Rio area, Del Rio sector, and then being chief in two other

areas, South Texas and El Paso, where I was born and raised. So

I always wanted to make sure as a the only Member of Congress

with that background that I get an opportunity to at least provide

what I feel is very important, and that is accurate information

about what is going on, and I don’t expect people to take my word

for it. I welcome and in fact, we have had a number of hearings,

both in El Paso and other areas that have I joined both this committee and other committees that have that responsibility to take

9

testimony but, most importantly, to actually go out there and see

the work that is being done by our Border Patrol agents, see the

work that is being done in concert with other agencies, both Federal, State, and local, which is very important, the cooperation that

exists.

I wanted to give one example of how that cooperation is important by citing a recent issue that existed in my community and

that was there is one last section of fencing that needs to take

place right near our downtown area in El Paso. In that area is also

the water source that is literally 12 minutes away from the water

treatment plant that when it was initially proposed to fence that

area would have put that water source south of the fencing. So

thanks to the cooperation of the Customs and Border Protection,

consulting with the community, we came up with a compromise

that we are going to close off that canal so that people that are intending on maybe taking some kind of a terrorist act against the

United States don’t have access to that water system. So we will

close it off, the Border Patrol will get their fence, and the fence will

also protect some infrastructure that the city was concerned about

that is critical in controlling the water runoff during storms.

Those are the kinds of cooperative and consultation efforts that

make sense in our communities, and I guess today, I would ask

that the decisions that are recommended from this committee be

done with that spirit in mind, that we oftentimes want to make decisions, for instance, putting up a very expensive fence in areas

that really don’t need it, in areas where we can monitor it electronically, where agents have sufficient time to respond once those

intrusions are known. They are the experts. I retired from the Border Patrol over 15 years ago, but I still am very much interested,

keep in contact, and proud to say that they are not just my former

colleagues but my friends and we need to do everything we can to

support them, both because it is America’s first line of defense but,

most importantly, because the Border Patrol works on the theory

that it is always better to consult with the local community because

they are part of that community so that both priorities are reached,

both the enforcement priority and the community priority as I just

spoke about with the example I gave you.

The last point I want to make is that when I retired we had a

little over 5,000 agents in the whole Border Patrol. We have done

a very good job of increasing the size of the Border Patrol. Today,

there is over 20,000 agents. There is one area that I am concerned

about that we haven’t focused on and I hope we get a chance to

do that, and that is at the ports of entry. Today, we are seeing

alarming statistics of the amounts of narcotics that are being intercepted at those ports of entry, and across the Nation those ports

of entry are carrying on a normal average about a 31 to 38 percent

vacancy ratio in their ranks. That means many different things, including the fact that it creates a vulnerable environment for our

country, but it also means long waiting lines for people wanting to

cross the border and obviously it also means that based on the statistics we are seeing that more narcotics are coming through those

ports of entry because that work force is overwhelmed. So I hope

we get a chance to have hearings on increasing the size of officers

at those ports of entry.

10

I know that when you, if you ask Border Patrol here this morning, they can tell you the same thing and verify the fact that it

doesn’t make sense to have control in between the ports of entry

and not at those ports of entry that account for millions of entries

every single day from Mexico into the United States and also from

Canada into the United States.

So with that, thank you for giving me an opportunity to testify

before you this morning and I would be happy to answer any questions you might have.

Mr. BISHOP. Thank you, Mr. Reyes. We are going to be respectful

of your time, but does anyone have questions for the gentleman

from Texas?

Representative Chaffetz, go ahead.

Mr. CHAFFETZ. Thanks for being here, and I know you care as

much about this issue as anybody. From your perspective, Border

Patrol agents are putting their lives on the line, they are going into

inhospitable areas, people that they don’t know, that they are trying to apprehend. Concern is the rural areas, particularly we have

some environmental laws that prohibit the use of vehicles and

other types of things. Can you really look somebody in the eye and

say you know if you do this on foot, you are going to be equally

as secure and safe and as effective as you would if you were in a

vehicle? That is my concern is that, you know, and part of the testimony that we are about to hear in the written testimony that came

before us, Kim Thorsen from Interior said, ‘‘on any Federal lands

at any time you may patrol on foot or on horseback.’’ I can’t imagine looking some Border Patrol agent in the eye and saying you

know, sir, sorry you can’t use the vehicle here, all the communication tools, safety and security and speed that you can get, you guys

go out on foot. Is that really what we should be telling our Border

Patrol agents?

Mr. REYES. Well, not so much foot, but I will tell you my experience has always been Border Patrol is a hardy bunch. They love

patrolling on horseback. And there are a number of reasons for

that, not only does it provide quick access in very rough terrain,

but it also allows them to have a higher perspective of whatever

is ahead of them and they can ride up on groups of people much

faster and much safer. If you rely on——

Mr. CHAFFETZ. Than a vehicle?

Mr. REYES. Than a vehicle. Well, remember what we are talking

about are the areas that you just mentioned are very rough terrain,

very uneven terrain. Yes, we have things like——

Mr. CHAFFETZ. Some of it is flat as can be, right? I mean, it is

not all mountainous.

Mr. REYES. No, no, it is not, but I guess from my perspective,

from my experience, it just makes sense to give the tools to the

Border Patrol that they need and in some of these areas what they

want are the ability to patrol on horseback.

Mr. CHAFFETZ. I guess the core question there is who should

make that decision? Shouldn’t that be the decision of the Border

Patrol to say this is how we are going to secure our folks?

Mr. REYES. Well, the law says that the Border Patrol has the

right of access anywhere, unrestricted anywhere within 25 miles of

11

an international border. They have that authority but the chiefs

locally——

Mr. CHAFFETZ. I wish that was true. My understanding is that

is not true. My understanding is that is on private property but not

on public lands. The issue here is, for instance, the Organ Pipe National Forest is one of the big issues. They can’t do that.

Mr. REYES. And I know the area——

Mr. CHAFFETZ. They have to go get permission from somebody

who doesn’t have the best interests of the Border Patrol in mind,

that doesn’t have to deal with the fact they are going to ask somebody to go risk their lives out on this public property.

Mr. REYES. I have been there. I have seen that area. I have

talked to the chiefs that have been in charge of those areas.

They don’t have a problem of access, at least the ones that I have

talked to, because they do patrol that area effectively.

They have the same concerns that Chairman Bishop articulated,

and that is, from an environmental perspective, the water jugs, the

plastic bags, and all of that stuff that undocumented people leave

are an issue for them.

But access and the ability to patrol—and I am not speaking for

them; they will be testifying.

Mr. CHAFFETZ. Right.

Mr. REYES. But I am telling you, both from my experience and

from talking to the chiefs in those areas, they don’t—at least they

have not told me that they are denied access to that area.

Mr. CHAFFETZ. I want to conclude within my scope of time. I

guess the point I am trying to drive home is, the Border Patrol

should be making those types of decisions, whether or not they use

a horse or foot or vehicle. And that is my driving point. Would you

disagree or agree with that point?

Mr. REYES. I would not disagree, although——

Mr. CHAFFETZ. Thank you.

Mr. REYES [continuing]. Don’t discount the fact that the chiefs

that are in charge of those areas have the best interest of officer

safety in mind, first and foremost, but they also—you know, one of

the things that I have learned through my experience is, no one is

more attuned—and I go back to saying the Border Patrol is a hardy

bunch. No one is more attuned to the surroundings, to respecting

nature, and those kinds of things. That is why I mentioned to you,

one of the biggest complaints that I have heard is about the refuse

that is left behind by undocumented people.

Mr. CHAFFETZ. Thank you.

I yield back.

Mr. BISHOP. Mr. Tierney, do you have questions for your colleague?

Mr. TIERNEY. Yes, I do. Thank you.

Mr. Reyes, thank you for joining us here this morning. And I do

respect the fact that you have, I think, more experience, certainly,

than any Member of Congress at your job on the Border Patrol, but

you have also, since been a Member, been very focused on this area

and continue because of your district, obviously, to be in touch with

people on that. Which strikes me as—we are sort of trying to impose on you here some of the questions, you know, an outsider’s

12

view, that you have the experience but we still want to tell you

what works.

Mr. REYES. Right.

Mr. TIERNEY. And what I am hearing from you is that, basically,

when there is an environmental law or regulation that might touch

up on a conflict with a security issue, that it has been your experience that the agencies involved have been able to work it out pretty reasonably.

Mr. REYES. That is correct.

Mr. TIERNEY. OK. My understanding, also, is the memorandum

of understanding between different agencies is that, when there is

an area of exigency, whether it be hot pursuit or some other security issue, the Border Patrol actually does have the ability to use

motorized vehicles. Is that right?

Mr. REYES. That is correct. That I know of, nowhere on the border under emergency situations is the Border Patrol precluded

from doing whatever it needs to do.

Mr. TIERNEY. All right. And there was a question here a moment

ago about, you know, who makes the decision. Well, we have laws

in this country, and I would suspect that those prevail. Am I right?

Mr. REYES. Correct.

Mr. TIERNEY. And you find the agencies generally try to implement those laws?

Mr. REYES. True.

Mr. TIERNEY. And then the memorandum of understanding is a

way to try to reconcile any conflicts that might appear within those

laws?

Mr. REYES. Correct.

Mr. TIERNEY. And your experience has been that the agencies

have been able to effectively, under that memorandum of agreement and through other cooperative means, resolve any issues or

problems, for the most part, that come up under that?

Mr. REYES. That has been my experience, yes.

Mr. TIERNEY. OK.

And I am just reading on that: ‘‘The Border Patrol may access

lands by motorized vehicle or otherwise in exigent or emergency

situations.’’ And that seems to cover any ground—when it comes up

to a final decision, the Border Patrol decides it is an exigency or

an emergency and they need to have use of a vehicle and they go.

Has that been your experience?

Mr. REYES. Yes, it has. And, you know, you have to remember

that there are times when perhaps you have an airplane crash, you

have some other kind of emergency, an agent is shot; the Border

Patrol chiefs are not going to allow anything to interfere with being

able to get in there and do whatever needs to be done to both secure the area and, most importantly, take care of whatever officer

is injured.

Mr. TIERNEY. Well, it appears, at least from this perspective, that

our laws don’t interfere with that either, that they are set up——

Mr. REYES. They do not.

Mr. TIERNEY [continuing]. The laws and the agreements under

them, to allow that to happen?

Mr. REYES. Absolutely.

13

Mr. TIERNEY. So has it been your experience that there are other

factors involved in sometimes causing difficulty for Border Patrol

agents or others to get control over a particular area? Topography

or, you know, the geography of an area, are they sometimes more

of an impediment for the agency?

Mr. REYES. Well, sure. And that is why—again, the chief in the

sector knows that area best. He is in constant communication with

both the agent in charge of whatever area is in the station that you

are describing. And decisions are made both in terms of being able

to secure the area and how they would respond and with what they

would respond.

I mean, that is the chief’s responsibility, to make sure that, in

the case of a national emergency or an emergency affecting officer

safety or the safety of maybe a rancher or maybe an undocumented

person whose life is in jeopardy, they will make whatever decision

needs to be made and have that access without any problem.

Mr. TIERNEY. So how many years, Mr. Reyes, were you a member

of the Border Patrol?

Mr. REYES. Twenty-six-and-a-half.

Mr. TIERNEY. So, 261⁄2 years as a Border Patrol agent and chief,

15 years in Congress representing an area that is very involved in

that, and your conversations with the various agencies, representatives, and employees along there. How many instances are you

aware of where an environmental law or one of the other laws that

we are discussing this morning was an insurmountable impediment

to the Border Patrol doing its work?

Mr. REYES. I can’t think of any.

In fact, I will tell you, Border Patrol agents work very closely in

Texas with what we know as ‘‘tick riders.’’ And their job and their

responsibility is to make sure that cattle does not come over from

Mexico because of the kinds of diseases they would have. So Border

Patrol works very closely—I worked with them when I was an

agent.

We work very closely with the Parks and Wildlife people; on occasion, DPS, the Department of Public Safety; and park rangers in

general in the areas that they have a presence. So when you are

wearing a badge and you have that responsibility, you want to

make sure, to the extent possible, that you have both knowledge

of who is there and an understanding that they are going to come

to your assistance and you are going to go to their assistance, because of both the environment and the hostility of the area or, perhaps, either a drug smuggler or alien smuggler or others that

might not distinguish and not know the difference between a Border Patrol agent, a park ranger, a tick rider, and others.

Mr. TIERNEY. Well, thank you for coming this morning and sharing your extensive experience from a range of perspectives.

Mr. REYES. Thanks.

Mr. BISHOP. My good friend from Michigan, do you have any

questions of Mr. Reyes?

Mr. KILDEE. Just a statement.

I am from Michigan, and we border on Canada. So we have to

sometimes look at our northern border, also. And, generally, those

who do try to get into Michigan either come in by plane from Europe—the one person they caught trying to bring a plane into DeVerDate 17-JUN-2003 12:32 Oct 04, 2011 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\68220.TXT KATIE PsN: KATIE
14

troit—but by water. And I have been impressed by the cooperation

between the Border Patrol and the Forest Service and our Coast

Guard. There are three very important—and I think we have to encourage that cooperation.

And sometimes laws have to catch up with changed circumstances. And if there is need for change in laws, hearings like

this might help that. I am not sure there is a need if there is already good cooperation.

But I do appreciate your service to your district, your State, this

country, and to this Congress. Thank you very much.

Mr. REYES. And I would just add, the Royal Canadian Mounted

Police, Border Patrol has an outstanding working relation and history with them, as well, because we—at least it has been the history that most of the resources have been on the southern border

with Mexico because that is where the pressure is. So we have less

officers, and they depend on relationships with local law enforcement like the RCMP up there.

Mr. KILDEE. Well, one good Border Patrol person, Diana Dean,

helped apprehend Ahmed Ressam, who was up to no good at all.

She, with her training and her perception, was able to stop that.

Mr. BISHOP. Thank you, Dale. I appreciate it very much.

The chairman, who is an ex officio member of this committee, is

here. I will recognize him, and then I will recognize Representative

Pearce from New Mexico.

Mr. ISSA. I will be quick.

Have you been sworn in? Because I have a lot of questions for

you.

Mr. REYES. I think every time you testify before Congress, the

assumption is we are sworn in.

Mr. BISHOP. We have already sworn at him, but we haven’t——

Mr. ISSA. Yeah, there you go.

Congressman, thank you for being here, and thank you so much

for bringing us an inside view from an outside agency.

So that is the only reason I showed up here, was—I said, wait

a second here, not only is this my committee room, this is one of

my best friends in Congress and somebody I rely on for the kind

of advice you just gave.

So thank you. That is all I wanted to say.

Mr. REYES. Well, and thank you, Mr. Chairman. Because, as I

have said publicly on occasion, many times, while we may differ in

our politics, I think we all want to do what is best for our national

security and the protection. And how we get there really is, I think,

the important part, for many different reasons. These guys are the

experts.

I thank God that I have that background because I really enjoyed

my 261⁄2 years in the Border Patrol. I don’t think there is a finer

law enforcement group in the world than the Border Patrol. But,

as you can expect, I am probably a little biased. But they do great

work.

Mr. ISSA. Part of what we know about you is you used to be

somebody.

Mr. REYES. Yes. Thank you.

Mr. ISSA. Thank you.

Mr. REYES. Well, thank you, Mr. Chairman.

15

Mr. ISSA. Thank you, Chairman.

Mr. REYES. And thank you for being here this morning.

Mr. BISHOP. Thank you, Mr. Chairman.

You must be something special. He has never said anything that

nice to me. Thanks a lot.

Mr. ISSA. In time, in time.

Mr. BISHOP. Yeah, yeah.

Representative Pearce.

Mr. REYES. Well, remember, he was a member of my committee

when I was chairman of the Intelligence Committee. We worked on

many different issues. You know, one of the——

Mr. BISHOP. So you are telling me you have photos or something?

Mr. REYES. No, not that I am aware of. But we did work on some

really tough stuff that will never—that people will never know publicly. But, again, it is about the national security of our country.

Mr. BISHOP. Mr. Pearce.

Mr. PEARCE. Thank you, Mr. Chairman. I appreciate the opportunity to be here on this committee.

And I thank my neighbor for his decades of service both in the

Border Patrol and here in Congress.

More a comment than a question. I am hearing what you are

saying, that El Paso is the safest city in the United States, less

than 15 miles—I mean, El Paso bumps up against one of the towns

in my district.

Mr. REYES. Right.

Mr. PEARCE. And 15 miles from downtown El Paso, they literally

bar their windows and doors, and they don’t feel like they are in

the safest place in the world. In fact, just about 2 weeks ago, in

Anthony, they declared their streets to be completely unsafe. And

what can be done about it? And so, that is such a contrast from

the safest city to just 15 miles away.

Wasn’t there a major highway that was shut down in El Paso

last year because of gunfire? Was that the year before?

Mr. REYES. No. And just a comment about—Anthony is not on

the border. And——

Mr. PEARCE. Sunland Park is on the border.

Mr. REYES. Right.

Mr. PEARCE. But I was in Anthony. Sunland Park is the same.

They feel—they express tremendous concern for their safety.

Mr. REYES. Well, if you—we have to separate criminal activity by

non-illegal-aliens that are coming through the area. And Anthony’s

streets were declared unsafe because of gang activity, the waring

gangs there, which occurs throughout anywhere in this country.

But the Border Highway, which literally runs right along the Rio

Grande River, is the road that you were referring to. And, yes,

there was a gun fight that occurred in Juarez, which may be the

most violent city. Certainly, it is the most violent city in the Americas, but may be one of the most violent cities in the world because

of the friction among the cartels. But there were bullets. The concern by the police department was that a stray bullet might hit a

passing car there. It is just a consequence of the location of that

highway.

Mr. PEARCE. Sure.

Mr. REYES. By the way, that——

16

Mr. PEARCE. If I could reclaim my time——

Mr. REYES. Go ahead.

Mr. PEARCE [continuing]. Mr. Chairman, I would point out that

the gang signs, whatever the gang signs are from Mexico, Central

America, have appeared on barns in the 2nd District of New Mexico, and it alarms people.

Then we have the rancher that was killed. His ranch butted up

against those ranches of ours.

In the 261⁄2 years that you served, what wilderness areas did you

actually—were in your jurisdiction right under your command?

Which wilderness areas did you—the formal designation of wilderness.

Mr. REYES. Well, as an agent, I worked the—what is known as

the Amistad Lake area.

Mr. PEARCE. Is that wilderness? Is that designated wilderness?

Mr. REYES. Sections are. In fact, some of the—because of the excavations of some of the caves there, with hieroglyphics and all of

that, they have been put under the jurisdiction of, I believe, the

Department of the Interior.

It is an area—Amistad Lake, as you know, like Falcon Lake, is

right on the border. Half of it is in Mexico, and the other half is

in the United States. And we had the responsibility for the U.S.

side.

Mr. PEARCE. OK. Thank you, Mr. Chairman. If I could reclaim

my time, I am about to run out of here. But I would just observe

that Mr. Bingaman submitted a bill last year and the year before

to make wilderness on the area. And, in contrast to your assertion

that we had 25 miles access in every wilderness area on any place

from the border, he actually had to, as a compromise, designate

that we could get wheeled vehicles into a 5-mile stretch. And that

was a compromise. Initially, it was not.

And wilderness—the Gila Wilderness—a long time ago, an airplane crashed from my hometown in the Gila. They had to backpack the bodies out. In other words, wilderness is a very restricted

designation. We have had testimony that if we created the wilderness along the Rio Grande, that they would not be able to actually

get bulldozers in to replace the earthen dams that washed out in

the flood about 3 years ago, and then we would be subject to flooding for the rest of time.

So wilderness area—I have the Gila Wilderness in my district. I

went to the Organ Pipe National Monument, and I saw the signs.

And we had the formal briefing that half of that was completely off

limits to American tourists because of the illegal activity across the

border. And if our agents were able to access that, it doesn’t seem

like that it would be off limits to American tourists because it was

so dangerous. Many places in New Mexico, only a barbed-wire

fence is there on the border.

But, again, I yield back my time.

Mr. REYES. Mr. Chairman, if I can respond?

Mr. BISHOP. I will give you 15 seconds.

Mr. REYES. OK.

The International Boundary and Water Commission has the authority to do the kind of work that—irrespective of wilderness designations, that Mr. Pearce was talking about, in terms of levees

17

and dams and all of that. I think if you check that out, it will be

clear who has the jurisdiction.

Mr. BISHOP. Mr. Reyes, I just want to give the benediction to

your presentation here today by thanking you for being here. The

written statement that you gave, I actually agreed with point after

point of it.

Our cities are improving. The Border Patrol is doing a great job

there. In fact, one of the GAO report studies simply said the Border

Patrol has put, in their words, put a strategy on high priority on

border enforcement in urban and populated areas. It does work.

Border Patrol can do their job when they are allowed to. But it has

had the process of diverting large concentrations of illegal traffic to

the Federal lands and other remote areas where you are talking.

I agree with you, as well, that the agents should be able to respond as best they can. I agree, also, there are some areas that are

so rugged, fencing is not a legitimate option for it, but, indeed, access by the Border Patrol is.

And sometimes they do use horses better. Although Secretary

Napolitano did say it may be inadvisable for officer safety to await

for the arrival of a horse for the purposes to apprehend somebody.

That sometimes is difficult. And, also, we will remember that all

of those horses are fed wheat feed pellets, because you can’t have

perfect kind of horses.

I also agree with you on three other points: that local consultation should be the best basis of making those kinds of decisions. I

agree with what you said on the exigent or emergency circumstances. Although I will tell you that the MOU does have a definition of what those are, and they have not always been maintained by the land managers. There have been times land managers have told the Border Patrol different than what the MOU

was supposed to. And that will come out in our testimony later.

And the last one is, I definitely agree with the good idea you had

on beefing up our port of entries. Actually, you said we should have

more officers—I think you said we should have bigger staff there

at the port of entry, which means size. So Mr. Chaffetz told me

that what he is talking about are portly officers at the port of entries, in which case I took offense at that because he talking right

about me.

So, Mr. Reyes, I appreciate your being here. Thank you for your

testimony. Thank you for being a part of this. And we thank you

for that, and we will let you go back and do some real work now.

Mr. REYES. Thank you so much. And I look forward to working

with you and your respective committees on these very important

issues for our country. Thank you very much.

Mr. BISHOP. Great.

We now have the next panel that will be joining us. But I understand the practice of the Oversight and Government Reform Committee is for the witness to be sworn in. So I would like Representative Chaffetz—all right.

The next panel will come up very, very slowly, so the panel—as

it gets set up for you. So if you want to come up slowly. Don’t stand

up yet; that is too fast.

It is going to be a couple of seconds before we can get them situated up here.

18

We will have, though, Ron Vitiello—and you can correct the pronunciation of that; I probably messed up everything—who is the

deputy chief of the U.S. Customs and Border Patrol; Kim Thorsen,

the Deputy Assistant Secretary for Law Enforcement, Security, the

Emergency Management from the Department of Interior; Jay Jensen, Deputy Under Secretary for Natural Resources and Environment, Department of Agriculture.

I didn’t mess up you two’s because they are just good old Danish

names, and I can handle that.

But in 1 second, we would ask you—and I think I am going to

turn the chair over to Representative Chaffetz to take care of this

portion.

Mr. CHAFFETZ [presiding]. It is the practice of the Oversight and

Government Reform Committee that all witnesses would be sworn

in. So, those three witnesses, as well as the backup witnesses, to

rise and raise your right hands, please.

[Witnesses sworn.]

Mr. CHAFFETZ. Thank you. You may be seated.

And let the record reflect that all participants answered in the

affirmative.

Thank you.

Mr. BISHOP [presiding]. Thank you.

All right. It is our hope at this time that, before the next vote

occurs, that we can have the testimony of the individuals who are

there.

Do you care which order you go? Then let’s take you from left to

right, and we will start with Homeland Security, go to Interior, and

then finish up with the Agriculture Department.

And, once again, thank you for being here. As you should know—

you have been here long enough to know this stuff—everything is—

your written testimony is in the record. Anything else you want to

add, we can put into the record, as well.

The timer is in front of you. When the yellow light comes on, you

have 1 minute left. We will try and close it as close to that red

light as is possible.

Please.

STATEMENTS OF RONALD VITIELLO, DEPUTY CHIEF, U.S. CUSTOMS AND BORDER PATROL; KIM THORSEN, DEPUTY ASSISTANT SECRETARY FOR LAW ENFORCEMENT, SECURITY,

AND EMERGENCY MANAGEMENT, U.S. DEPARTMENT OF THE

INTERIOR; AND JAY JENSEN, DEPUTY UNDER SECRETARY

FOR NATURAL RESOURCES AND ENVIRONMENT, U.S. DEPARTMENT OF AGRICULTURE

STATEMENT OF RONALD VITIELLO

Mr. VITIELLO. Chairman Bishop, Chairman Chaffetz, ranking

members, and distinguished members of the subcommittee, it is my

privilege and honor to appear before you today to discuss U.S. Customs and Border Protection’s efforts concerning illegal activity on

Federal lands.

I am Ronald Vitiello, the deputy chief of the U.S. Border Patrol.

I began my career in law enforcement in 1985 as a Border Patrol

agent in Laredo, TX. Throughout my career, I have held numerous

19

positions within the organization, both on the southern and northern borders.

I would like to be clear that the border is a different place today

than it was when I began my career. I have personally witnessed

the evolution of the border over the past 26 years both in terms of

additional resources applied against the threat as well as the

change in the adversary’s ability to exploit border vulnerabilities.

Last year, the Border Patrol apprehended approximately 463,000

illegal aliens, as compared to 10 years ago when we made 1.6 million arrests, a more than 70 percent reduction.

Although we have seen positive indicators of a more secure border, our work continues and will not end as long as those who seek

to enter this country illegally. The Border Patrol’s national strategy

was implemented in 2004 and called for achieving control of the

borders with the proper mix of personnel, tactical infrastructure,

and technology. We sought to gain, maintain, and expand control

at the border. With the assistance of Congress, we have seen an

unprecedented influx of resources, and we are currently expanding

our security efforts.

In law enforcement, we operate within the confines of the rule

of law and regulations. Would our efforts be easier without these

legal frameworks? Yes, it would. However, we find a way to reasonably and sensibly solve problems within the parameters of law.

Does the Border Patrol face challenges with respect to operating

around protected lands when they are in our enforcement zones?

Yes. But, again, we have been able to establish practical solutions

to allow for mission success.

In 2006, the Secretaries of the Departments of Homeland Security, Interior, and Agriculture signed a memorandum of understanding committing the signatories to ongoing operations on protected lands. It is understood that the Border Patrol cannot routinely patrol protected land in vehicles. Nonetheless, we do have

access either on foot, horseback, and without restriction under exigent circumstances.

Essentially, the MOU formalized an informal cooperation that

has existed for years. Our field commanders, the chiefs, and the patrol agent in charge are tasked to consider the multiple environments they oversee in order to establish their requirements for

where resources are required and how to best supply them.

Each tract of land along the border has to be assessed individually. As our commanders lay out the requirements, we work

through the environmental regulations in order to abide by the

law, albeit without sacrificing the Nation’s security. Some of this

activity can be time-consuming, but, in the end, we have in place

the necessary tactical infrastructure, technology, or resources.

Additionally, we look at the border. Each area has to be taken

individually, as no two stretches are the same. The activity levels

and terrain vary widely from San Diego to Brownsville on the

southern border.

Through our security efforts, the Border Patrol intends to have

a minimal impact on the environment. Agents are on the line every

day, day-in and day-out, interacting with the communities in which

they live. There are many varying opinions from the border comVerDate 17-JUN-2003 12:32 Oct 04, 2011 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\68220.TXT KATIE PsN: KATIE
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munities, public interest groups, and the media alike, yet our mission is to enforce the laws duly enacted by Congress.

The Border Patrol recognizes that we need many partners in our

Nation’s security efforts. We have learned that it will take a wholeof-government approach within law enforcement, within each of our

duties, responsibilities, and authorities at all levels—Federal,

State, local, and tribal. We have strived to move beyond mere collaboration and work toward operational integration with our Federal, State, local, and tribal and our international partners, moving

forward in realizing the strength of joint planning and implementation in a targeted and focused manner.

Our path forward and our security efforts applied will be riskbased. Accordingly, we will increasingly depend on information and

intelligence to describe the intent and capability of our adversaries,

thus defining the threat while continuously assessing our

vulnerabilities. In doing so, we must be more mobile, agile, and

flexible.

Thank you for the opportunity to testify today. I do look forward

to your questions.

[The prepared statement of Mr. Vitiello follows:]

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Mr. BISHOP. Thank you.

Ms. Thorsen.

STATEMENT OF KIM THORSEN

Ms. THORSEN. Thank you, Chairmen Chaffetz and Bishop and

members of the subcommittee. I appreciate the opportunity to appear before you today to discuss the important issues in border security and the Department of the Interior’s role in the administration’s collaborative efforts to address illegal cross-border activity on

Federal lands.

I am Kim Thorsen, and I am the Deputy Assistant Secretary for

Law Enforcement, Security, and Emergency Management at Interior. I have been a law enforcement professional for 25 years with

both Interior and the U.S. Forest Service, and I have been involved

in border issues for the last 8 years.

I am joined here today by Jeanne Van Lancker, the acting director of the Office of Law Enforcement and Security for the Bureau

of Land Management; Jim Hall, the chief of law enforcement for

the National Wildlife Refuge System of the Fish and Wildlife Service; and Lane Baker, the chief of law enforcement security and

emergency services for the National Parks Service.

If I may, I would like to submit our full statement for the record

and summarize my testimony.

We appreciate the attention that your subcommittees have given

to the issue of securing our borders. The Department of Homeland

Security, including U.S. Customs and Border Protection and Border

Patrol, has been given the mandate to secure our international borders and deter illegal border-related activity.

At Interior, we have the responsibility of administering uniquely

beautiful and environmentally sensitive lands along the borders.

We recognize the significant ecological and cultural values of these

lands, and we strive to maintain their character and fulfill our mission to protect and preserve these assets on behalf of the American

people.

We also recognize that these two objectives—securing our borders and conserving our Federal lands—are not mutually exclusive.

We are not faced with a choice between the two; instead, we can

and should do both.

We at Interior are proud of the strong working relationship

based on cooperation and a mutual commitment to accomplishing

our important agency missions among all of our partner agencies.

Federal agencies with law enforcement presence on Federal lands

along the borders include the Border Patrol; Interior’s agencies, including the Bureau of Land Management, National Park Service,

the Fish and Wildlife Service, and, in certain circumstances, the

Bureau of Indian Affairs; and the Department of Agriculture’s Forest Service.

Our agencies have developed a cohesive, cooperative approach to

border security. In March 2006, Interior, DHS, and Agriculture entered into a memorandum of understanding providing the departments with goals, principles, and guidance related to securing the

borders, addressing emergencies involving human safety and minimizing the environmental damage arising from illegal cross-border

activities on Federal lands.

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We believe the guidelines contained in the MOU have been effective in providing both Interior and Border Patrol with the necessary framework to strike the appropriate balance for patrol and

infrastructure access to Interior lands by Border Patrol, while continuing to maintain an emphasis on protection of Federal trust resources.

Since entering into this MOU, the three departments have continually and successfully worked together to carry out the tenets

outlined in the MOU at both the headquarters and the field levels.

At Interior, we have established a department-wide coordination

structure to facilitate the regular coordination and collaboration between Border Patrol and Interior agency representatives. Additionally, Interior, Agriculture, and DHS have founded an interagency

environmental and cultural stewardship training task force to build

on existing environmental and cultural training for Border Patrol

agents whose patrol activities include Federal lands.

Collaboration is also taking place with the Border Patrol in the

field. The Border Patrol, in cooperation with Interior and Agriculture, established a public lands liaison agent position for each

of its 20 sectors. Interior land managers communicate and collaborate on issues of mutual interest or concern with those agents on

a regular basis. In addition, Border Patrol agents frequently conduct joint patrols with Interior law enforcement personnel on Interior lands.

This close coordination provides staff with training and orientation on each agency’s mission, while enhancing Homeland Security

activities and resource-related investigations. These few examples

are just a sampling of the ongoing collaborative dialog and strong

relationship that Interior agencies and personnel have developed

with our colleagues in the Border Patrol.

The deployment of Border Patrol personnel, equipment, and infrastructure along the southwest border has led to significant improvements in border security. We are very pleased with these improvements because of the enhanced security to our Nation and

also because these efforts lead to overall healthier conditions on Interior lands along the border.

During this deployment of additional border security resources,

we have worked closely and well with the Border Patrol to avoid

or mitigate impacts of these operations on Federal lands.

In closing, I would like to recognize the collective efforts that Interior, DHS, and Agriculture have taken to meet the intent of the

2006 interagency MOU and the shared commitment by our departments to accomplishing the missions of our agencies.

Chairmen Chaffetz and Bishop, this concludes my statement. I

would be pleased to answer any questions that you or other members of the subcommittees may have.

[The prepared statement of Ms. Thorsen follows:]

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Mr. BISHOP. Thank you.

Mr. Jensen.

STATEMENT OF JAY JENSEN

Mr. JENSEN. Thank you. Chairman Bishop, Chairman Chaffetz,

Ranking Member Tierney, members of the subcommittees, thank

you for the opportunity to appear before you today to provide the

Department’s views on border security on National Forest System

lands.

You have my written testimony for the record, but I would like

to take this time to emphasize some key points.

First, the Department and the Forest Service take very seriously

the need to secure our Nation’s border. We fully support, as it is

in our common interest, that we address illegal U.S. border crossings, the smuggling of illicit contraband and people across the border, the crimes committed against those being smuggled, and other

unlawful activities.

Through all of this, it is important to recognize and empathize

with the plight of those undocumented foreign nationals who are

seeking a better life. Yet, there are impacts to national forests on

both the northern and southern borders, particularly so on portions

of the Coronado National Forest, where we are seeing issues related to excessive trash, human-caused fire, and the safety of the

recreating public. We are undertaking successful measures to mitigate these impacts.

Second, I want to emphasize the close working relationship we

have with the Border Patrol and our sister agencies in the Department of the Interior. As our testimony indicates, we participate in

numerous joint patrol exercises, have assigned a full-time U.S. Forest Service liaison to the Border Patrol, communicate in real-time

on the ground with each other, and work expeditiously to allow the

Border Patrol the access they need while protecting the environment.

In fact, just a few weeks ago, the Forest Service chief, Tom Tidwell, was in southern Arizona meeting with Chief Hill of the Tucson sector of the Border Patrol. They toured the border by helicopter to see and learn firsthand the challenges we face together.

There is much to do, but we are seeing success. And to re-enforce, the Government Accountability Office has even acknowledged

the close cooperation between our agencies.

Third, we are convinced that a well-protected border means wellprotected public lands. The more we can assist the Border Patrol

with stopping illegal traffic, the less impact there will be on the national forests. To date, we are unaware of any requests made by

the Border Patrol where we have not been able to accommodate

their needs in an expeditious manner and still protect the environment.

Last, we want to thank the subcommittees for their attention to

this important issue. We want to work closely with you and understand your concerns. Our experience to date tells us that we can

accomplish our missions of securing the border and protecting the

environment, recognizing that these are not mutually exclusive objectives. We will continue to make interagency progress with the

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Border Patrol and our sister agencies in the Department of the Interior in the accomplishment of our missions.

This concludes my verbal testimony. Thank you. And I look forward to your questions.

[The prepared statement of Mr. Jensen follows:]

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Mr. BISHOP. Thank you. I appreciate all of you being here.

Let me ask the first round of questions.

For all of you, looking at the memo of understanding, it appears

that a big part of the entire agreement hinges on access granted

in the course of exigent or emergency circumstances.

Ms. Thorsen, you are from DOI; let me deal with you. What is

an exigent circumstance?

Ms. THORSEN. Mr. Chairman, as outlined in the MOU, what we

tried to do is ensure that the Border Patrol agent and then in their

judgment determined what an exigent circumstance was, whether

is was in pursuit of aliens——

Mr. BISHOP. Is there a definition in the MOU?

Ms. THORSEN. Yes.

Mr. BISHOP. And what is that definition?

Ms. THORSEN. ‘‘Exercising exigent emergency authorities to access lands, including authority to conduct motorized off-road pursuit of suspected CVVs at any time, including in areas designated

or recommended as wilderness or in wilderness study areas, when,

in their professional judgment, based on articulated facts, there is

a specific exigent emergency involving human life, health, safety of

persons within the area, or posing a threat to national security.’’

Mr. BISHOP. OK, that is the key element. So human life, health,

safety of persons within an area, or posing a threat to national security.

Are you aware that when my staff questioned one of your park

superintendents and even the director of the National Parks Service told us separately that an exigent circumstance is life or death

only? Now, is that what the MOU says?

Ms. THORSEN. No.

Mr. BISHOP. OK. So this incorrect definition is not just the opinion of the Park Service. Unfortunately, the Fish and Wildlife Service director sent two letters to the Border Patrol telling them, in

his opinion, that an emergency is defined as life-threatening circumstances, and, otherwise, Border Patrol has to continue to access

the refuge on foot or on horseback, and also gave them a warning

that if they violated his version of that MOU, within 6 months he

would close all access down.

Are you aware of that?

Ms. THORSEN. No, I am not aware of those particular——

Mr. BISHOP. What are you going to do about it?

Ms. THORSEN. Well, what we will do is ensure—and we are continually doing this with our partners, our agencies on the ground

and with the Border Patrol—to ensure that the MOU is enforced

as written.

Mr. BISHOP. It is nice. So you are now aware that the ground

personnel in DOI are not operating under the same definition. You

got it?

Ms. THORSEN. Yes, Mr. Chairman.

Mr. BISHOP. OK. Well, you were right when saying that protection of land and protection of the border should not be mutually exclusive, that you should be able to do both. Unfortunately, you are

not.

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Border Patrol agents in the field have explained to our staff that

they believe the MOU could work but, unfortunately, it does not

because the land agencies do not follow it.

Mr. Vitiello, have you heard complaints from the field land managers that they are not following the MOU?

Mr. VITIELLO. I think that the MOU does give them the framework to do that. I think in any relationship there are differing

sides and interpretations.

Mr. BISHOP. So how would you tell your Border Patrol if, for example, one of the land managers under DOI told them the MOU

was no longer in effect because there was a new administration?

Mr. VITIELLO. Well, we have, you know, regular people on the

ground that are designed to programmatically work these issues

and then operationally understand amongst themselves how we are

going to interpret—not how to interpret the MOU, but that the

framework exists to solve any of the problems as they are raised.

Mr. BISHOP. So what would you tell that land manager when he

said that?

Mr. VITIELLO. I would refer him to the public lands liaison officer. You know, I could call over to Kim’s office, and we could talk

about what, you know, the perceptions or actual restrictions were

or should or should not be.

Mr. BISHOP. So if, especially in the GAO report, you showed multiple examples of where this MOU has broken down, Ms. Jensen,

how will the MOU function if your employees don’t believe they

have to or are obligated to follow it? Or, I am sorry, Ms. Thorsen.

Ms. THORSEN. As Mr. Vitiello said, our responsibility in my office, as well as our folks in the field, is to ensure the appropriate

implementation of the MOU. And so we—and, in fact, the MOU describes a mechanism that, if things aren’t working out at the local

level, that that is to be moved up to the regional and then, ultimately, the headquarters level.

So we have mechanisms in place to ensure that it is being implemented as outlined in the framework in the MOU. So it is our responsibility to followup on those instances and ensure that is, in

fact, happening.

Mr. BISHOP. That doesn’t work. And I appreciate it, but it doesn’t

work. It is not working. The reports are telling us, the anecdotal

evidence, and, actually, the cumulative evidence is saying, that system flat-out is not working.

Mr. Jensen, the fires you refer to in your testimony, how many

of those are intentionally set?

Mr. JENSEN. Intentionally set? We don’t track the numbers that

actually we know that they are intentionally set. We track numbers of fires by human-caused and through lightning.

Mr. BISHOP. Why don’t you track arson? Are the Forest Service

employees discouraged from reporting arson?

Mr. JENSEN. Not at all.

Mr. BISHOP. Then why don’t you track it?

Mr. JENSEN. We can dig into the numbers, as we conduct investigations on specific fires, to find the cause of those fires. And, in

that sense, we can get to the answer, to the bottom of what caused

those fires.

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Mr. BISHOP. But you don’t do that now. That becomes amazing,

that it doesn’t do it.

You also said you were not aware of any kind of problems with

where your agency has been impeding the Border Patrol. Check the

GAO report. You will see it very much. I quoted from it here.

My time is over. Mr. Tierney.

There will be another round here.

Mr. TIERNEY. So I guess—I am trying to listen carefully here to

this. And it seems to me that there is some allegations here—not

so much that the MOU, memorandum of agreement or understanding, doesn’t allow for things to work properly, but there seem

to be incidents reported where it may not have been implemented

or worked effectively.

Is that what you witnesses are hearing, as well? Or correct me

if I am not hearing properly.

Mr. VITIELLO. I think that is accurate.

Mr. TIERNEY. Ms. Thorsen.

Ms. THORSEN. Yes, sir. That is my——

Mr. TIERNEY. Mr. Jensen, is that what you are hearing?

Mr. JENSEN. I would agree.

Mr. TIERNEY. OK. So are we getting ample training to the people

in the field in all three departments so that they would have an

appreciation for the memorandum of understanding in the chain of

how they would cooperate and work with others?

Mr. VITIELLO. There is an ongoing, systematic way for folks to be

exposed to it. We have it programmatically set up at each of the

locations. And so that is a constant kind of process, because we do

have turnover in the field, relationships change. And so there is a

constant, you know, revolution of people who learn and then need

to know and then move on; the next group gets the same kind of

thing.

So it is like any other relationship. There are ebbs and flows in

the level of contact and its effectiveness.

Mr. TIERNEY. Is there a high percentage of people that are between trainings or haven’t been trained yet as they take on responsibilities?

Mr. VITIELLO. I would have to get you specific numbers, but it

is our intent at each of the levels to have folks who are subjectmatter experts in the MOU and then have the responsibility for the

liaison and the operational contact.

Mr. TIERNEY. Are any of you aware of any particular incidents

or incidents where the Border Patrol agents have been absolutely

impeded from carrying out their responsibilities by interference

through the enforcement of some of these environmental and wilderness laws?

Mr. VITIELLO. I am not aware of any specifically, but I will tell

you that, with 20,000 agents in the field, there are bound to be

within these relationships differences of opinion and issues that get

raised through the sector-level commands, the station level, certainly, and then up to the headquarters. We have had instances

where we have talked about these things at every level, looking to

solve whatever the issue is.

Mr. TIERNEY. OK.

Ms. Thorsen.

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Ms. THORSEN. Yes, I would actually agree with Mr. Vitiello’s

statement. There are instances where folks on the ground need to

work through things. But our continual talking to them, meeting

with some of our collaborative organizations that we have, the borderland management task forces and so forth, and our constant effort to ensure that any issues that aren’t getting resolved at the

very local level are bumped up through that mechanism, and, as

I said earlier, all the way to headquarters.

We are very involved in my office, personally, to ensure that anytime we hear there is maybe some impediment or there is a difference of opinion on the ground, that we figure that out and we

make it happen so the Border Patrol can successfully carry out

their mission.

Mr. TIERNEY. Do you have disciplinary proceedings for those recalcitrant individuals that may be giving instructions and misinterpretations of the MOU?

Ms. THORSEN. The folks on the ground are bureau employees,

and those bureaus do have performance plans and disciplinary and

sort of a whole performance program.

Mr. TIERNEY. Do they use them?

Ms. THORSEN. It is not my—I can’t speak to that, actually, since

I don’t work in those bureaus.

Mr. TIERNEY. Well, I mean, that is part of the problem with bureaucracies, right? I mean, we are here talking about one problem

and you are giving us an answer and you can’t answer for the other

part.

But will it be reasonable to assume that those incidents that may

be reported by the Government Accountability Office or those incidents that Mr. Bishop or others here may point out as anecdotes

or individual circumstances will be reviewed and action taken if it

is warranted?

Ms. THORSEN. Yes, I would agree with that.

Mr. TIERNEY. Mr. Vitiello, do you agree that your agency will do

that, as well?

Mr. VITIELLO. Yes, sir.

Mr. TIERNEY. Mr. Jensen.

Mr. JENSEN. Absolutely.

Mr. TIERNEY. All right.

Is any one of you of a mind that there is a mutually exclusive

application of the environmental wilderness laws and our security?

Mr. VITIELLO. That they are not exclusive, I agree.

Mr. TIERNEY. You agree they are not exclusive.

Ms. Thorsen.

Ms. THORSEN. Yes, I agree.

Mr. TIERNEY. Mr. Jensen.

Mr. JENSEN. Absolutely not. We are actually seeing examples

where we are actually seeing success. And I think, just this year,

we embarked upon a joint operation called Operation Trident that

is occurring all throughout this year that is proving and demonstrating how we can work together and achieve both those goals.

Mr. TIERNEY. Well, particularly with respect to fires, I would assume that it is in your interest and in the forestry to make sure

that the border is protected and people aren’t coming in and being

a part of the human cause of fires, correct?

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Mr. JENSEN. That is absolutely correct.

Mr. TIERNEY. OK.

And, Mr. Vitiello, I will just end with you. Are you, as a representative of the Border Patrol, here to lodge a complaint of any

sort about the way that the environmental laws or conservation

laws or wilderness laws or anything else are impeding the ability

of you and your men and women to protect this country and protect

our national security?

Mr. VITIELLO. No complaints. I agree that the framework allows

us to solve this problem in a practical way. As Ms. Thorsen said,

it is best to do that at the field with the folks that are responsible

for implementation directly.

Mr. TIERNEY. And you will do that?

Mr. VITIELLO. Yes.

Mr. TIERNEY. Thank you.

Yield back.

Mr. BISHOP. Thank you.

Mr. Chaffetz.

Mr. CHAFFETZ. Are you all familiar with the border security GAO

report, February 15, 2011? This is the one, ‘‘Preliminary Observations on Border Control Measures from the Southwest Border.’’ We

keep referring to the GAO report. Are you familiar with it?

Mr. VITIELLO. Yes, Mr. Chairman.

Mr. CHAFFETZ. All three of you, yes? Yes?

Mr. JENSEN. Yes.

Ms. THORSEN. Yes.

Mr. CHAFFETZ. All right.

Mr. Vitiello—I hope I am pronouncing your name right—you

write in your written testimony, ‘‘Border Patrol’s enforcement efforts on Federal lands can pose unique challenges.’’ What are the

unique challenges?

Mr. VITIELLO. Well, I think the challenges are that they are—like

a lot of the enforcement work that is done both for the Border Patrol and in all law enforcement, there is a legal framework which

we operate in.

Mr. CHAFFETZ. That is different, that is different because it

is——

Mr. VITIELLO. On protected land, yes, it is.

Mr. CHAFFETZ. And the access, your ability to patrol, is different

than it is, say, on private land or different types of public land that

aren’t designated as wilderness, correct?

Mr. VITIELLO. Right. So, depending on the environment.

Mr. CHAFFETZ. It is different.

Mr. VITIELLO. It is different.

Mr. CHAFFETZ. Absolutely. OK.

Seventeen of the 26 Border Patrol stations interviewed by the

GAO indicated, ‘‘When they attempted to obtain a permit or permission to access portions of Federal lands, delays in restrictions

have resulted from complying with land management laws.’’

Would you agree with that or disagree with that?

Mr. VITIELLO. It is in the report, so I have no dispute about the

fact——

Mr. CHAFFETZ. But you also testify that there is no problem, everything is getting along rosy. And yet I go back and read this

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GAO report, and you have only secured 129 miles of a 2,000-mile

border.

You can’t come before the American people and this country and

say that everything is rosy and fine. People are dying, they are getting killed because we have those big, gaping holes in our security,

and they are going into some of the most inhospitable pieces of

land and they are dying. They are being dehydrated. They are

going through these cactus-ridden areas, and they are dying. And

we are putting Border Patrol out there and saying, ‘‘Oh, just go on

foot, just go on horse, because we would much rather protect this

little cactus and this little roadrunner.’’

That is what I have a concern about. So for you to testify routinely that everything is fine, it is not different, I am not aware of

any instance—and then read that we are having permit and permission troubles is troubling.

Let me go on. According to the GAO, 14 of the 17 agents in

charge—agents in charge, people that you should be personally familiar with—of the Border Patrol stations indicated delays by Federal land managers who reported that they have, ‘‘been unable to

obtain a permit or permission to access certain areas in a timely

manner because of how long it takes for land managers to comply

with environmental laws.’’

So how have these delays, based on this report, lessened the

agents’ ability to detect undocumented aliens in some areas?

Mr. VITIELLO. The report is a snapshot in time. The framework

that is within the MOU allows those agents in charge to make

those requests. And when those requests are judged by the public

lands liaison or the borderlands task force to be reasonable, then

we sort through that and make it happen.

To suggest that it is perfect, that is not why I am here. It is a

relationship that——

Mr. CHAFFETZ. The reason you are here is because it is not perfect.

Let me move on. As indicated by the GAO in at least one instance, Border Patrol requested permission to move a mobile surveillance system to a certain area. However, by the time the permission was granted 4 months after the initial request, illegal traffic had shifted to another area. As a result, Border Patrol, ‘‘was unable to move the surveillance system to the locale it desired. And

during the 4-month delay, agents were limited in their ability to

detect undocumented aliens within a 7-mile range that could have

been covered by the system.’’

True or false? Is that statement true or false?

Mr. VITIELLO. It is true.

Mr. CHAFFETZ. So how can you testify that everything is fine and

that you are working in such a great relationship? You have a surveillance system that I would think that would make your Border

Patrol agents and the United States of America safer, and these

people over here are giving you a 4-month delay.

How come you are not here with the same type of outrage that

I have? How come you are here just saying, ‘‘Oh, you know, we

work together. Everybody just gets along.’’ We got people dying.

How do you respond to that? Because you have testified, and we

have listened to what you said, that, oh, everything is fine.

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Mr. VITIELLO. The framework allows for us to move through

these issues and this problem. Is it perfect, no? If you want to——

Mr. CHAFFETZ. But in this instance, the report that came out, it

is a 4-month delay.

Ms. Thorsen, how do you respond to this? Mr. Jensen, jump in

here. Four-month delay, why does that happen?

Mr. JENSEN. I am looking at—I am asking my folks here to find

examples on the National Forest System land here. And we are

working as quickly as possible to work through the requests that

come through. And we have examples in front of us now: the Zone

20 project, where we are actually moving to build roads on restricted lands, where we are seeing success.

It does not happen immediately in every single case, but we are

actually—we are making tremendous progress in working together

to address these concerns as they arise.

Mr. CHAFFETZ. My time has expired. I yield back.

Mr. BISHOP. Mr. Kildee.

Mr. KILDEE. Thank you, Mr. Chairman.

All of us feel on this issue certainly as strongly as Mr. Chaffetz,

but I think, you know, some of us express ourselves differently.

And I have been here 34 years, and I always find it a great opportunity when you have people from the field who know this issue

very well to keep the level of trying to learn at a high level. So I

really appreciate your helping to enlighten us. We are not always

going to agree, but I think that we have this opportunity to learn

from you.

Let me ask you this question. I will address it to Ms. Thorsen,

but any of you may answer. If there is an incident or a pattern of

ignoring the MOU that we have been talking about, what is your

reaction or response to that? And should there be something

stronger than an MOU? Should there be something in law?

Ms. THORSEN. Thank you, Congressman.

Our actions, if there was a consistent pattern of ignoring the

MOU, as I stated earlier, we have a mechanism in place to bring

that to our attention at headquarters. And in numerous instances,

I personally get involved, and other members of my staff, talking

to Mr. Vitiello or Chief Fisher with the Border Patrol to come together to figure out what is going on. And then we also talk to our

bureau representatives, bureau directors and/or their regional directors, who have direct control over those local units, and come together to discuss what the issues are and to resolve those issues.

So we do it very—we do it very high-level. For any incident on

the border that gets to our attention that we know about, we will

take action such as that to ensure that it gets resolved on the

ground. We hope most of those are resolved locally, but they are

not all, as we have heard earlier. They do get to our attention.

Mr. KILDEE. Anyone else have any comment?

Well, I would encourage you to, you know, keep it at a high level

or even raise the level of importance. Because when agreements

are made, very often they aren’t easy to arrive at but they are done

for a reason.

So I would encourage you to keep it at the high level. I think it

is very important. I would not want to stop a chase because someone didn’t want to follow a memorandum of understanding which

52

makes very good sense and is so important for, very often, our national security.

So I would keep it at the high level; if necessary, raise it to a

higher level.

Thank you very much.

Mr. BISHOP. Thank you, Mr. Kildee.

Mr. Pearce.

Mr. PEARCE. Thank you, Mr. Chairman.

Ms. Thorsen, are you familiar with the operating memorandum

of understanding between the Las Cruces BOM and the Border Patrol?

Ms. THORSEN. Not particularly, sir.

Mr. PEARCE. Well, in it, it states very clearly that a mobile command—the mobile communications site there in the Big Hatchet

Peak will be moved as soon as possible if the area is designated

as wilderness. So it is there now, but if it is wilderness it can’t be

there.

Doesn’t that sound like a little bit of an impediment? Why

wouldn’t the people have decided to put it somewhere else to start

with if that were a better place? Doesn’t that sound like a little bit

of an impediment?

Ms. THORSEN. In that instance—that is an example—I understand that the repeater is on Big Hatchet Mountain. And if, in fact,

legislation were passed, we would need to work to ensure that it

could stay there. It is an opportune location.

Mr. PEARCE. No, I mean, it calls for it to be moved if it is designated wilderness. That says that conservation is trumping protection.

Mr. Vitiello, you declare that wilderness and security are not mutually exclusive. And I know it is not exactly wilderness area, but

the Organ Pipe National Monument that I visited in 2006 as chairman of the Parks Subcommittee and they declared it to be inhospitable for American travelers, about half of it, is it still that way?

Mr. VITIELLO. No, we——

Mr. PEARCE. It is wide open? It is completely open to American

tourists with no warnings?

Mr. VITIELLO. Well, I don’t know the status of the visitation for

folks——

Mr. PEARCE. Staff tells me it is still very alarming and that the

warnings are still given to American tourists that you shouldn’t be

in this area.

Mr. VITIELLO. Yeah.

Mr. PEARCE. If the two are not mutually exclusive, why have you

not—why doesn’t that area fit into your 129 miles of secure border?

Mr. VITIELLO. The definition that gets us to the 129 miles is

probably a lot longer conversation. But that——

Mr. PEARCE. Well, just——

Mr. VITIELLO [continuing]. Tactical measure for agents in the

field is designed for——

Mr. PEARCE. I want to know why Organ Pipe has not been

cleaned up. Why haven’t you stopped the traffic that is polluting

the area but also making it dangerous?

Mr. VITIELLO. We have made good progress at Organ Pipe and

throughout the sector to——

53

Mr. PEARCE. You would send the Boy Scout troop down there

that has your kids in it without your presence? I don’t think so, sir.

I am sorry, I was there. I saw the stuff. I don’t believe you would.

Mr. VITIELLO. We have made excellent progress since 2006, Congressman.

Mr. PEARCE. I hear that. I also know that just last year or the

year before that the rancher was killed right down in that area,

and that was in retribution for him turning in the drug smugglers.

Mr. Jensen, we visited in the Sequoia in that same 2006 time period, and they actually showed us places where booby traps, sawedoff shotguns, the growing massive areas of drugs in the forest

itself. Is that cleaned up?

Mr. JENSEN. I would have to go back and look at that specific

area to know the status there. I do not know.

Mr. PEARCE. Do you have any other forest where—but you are

familiar with the circumstances that I refer to?

Mr. JENSEN. The circumstances——

Mr. PEARCE. Do you have any other forests that have that many

incursions of illegal activity in it so that people are warned, ‘‘Don’t

backpack in this area; you could get your head blown off with a

sawed-off shotgun that has a tripwire on it?’’

Mr. JENSEN. We don’t quite talk about it that way, but we do

make sure——

Mr. PEARCE. Were the pictures that were given to me by the Forest Service incorrect?

Mr. JENSEN. I would have to see these those photos to know for

sure.

Mr. PEARCE. Yeah. Yeah. So you wouldn’t talk about it, but the

pictures may have been correct. They were given to me in an official capacity, in an official briefing. So you wouldn’t think it is incorrect that, if you hit a tripwire and it blows your head off with

a sawed-off shotgun that is protecting a marijuana field——

Mr. JENSEN. No, what I wanted to say was we, want to make

sure that visitors that come to the national forests are aware of the

risks that are out there, as in any time you head into the back

country. I couldn’t speak to the specific situation——

Mr. PEARCE. Do you have any other forests where that sort of

danger exists?

Mr. JENSEN. We are dealing with some similar issues down in

the Coronado National Forest. And we make sure that the visitors

to those areas are aware of the situation.

Mr. PEARCE. So Sequoia is one of two in a very, very dangerous

category. And you don’t know if it has been cleared up? That is

alarming, my friend.

Mr. JENSEN. I would like to followup with you to understand a

little more of the concerns you have.

Mr. PEARCE. I mean, still it is alarming that you are in the position you are in and don’t know if we have eliminated those. That

is what concerns me about the testimony of all three of you here

today, that you are saying that there is no problem with wilderness. There is no problem with environment rules, and yet you

can’t explain some of the most dangerous areas that exist right in

my back door.

Thank you, Mr. Chairman.

54

Mr. BISHOP. Thank you.

It is my intention to turn now to Mr. Lynch.

And what we will try and do is get through this round of questioning. We have still a good 5 or 6 minutes, and a whole lot of people haven’t yet voted. We will then suspend for a few minutes, go

vote, then come back here probably around a 10-minute break, if

that is OK. Representative Lynch.

Mr. LYNCH. Thank you, Mr. Chairman.

And I want to thank the witnesses for trying to help the committee with its work. I do want to—I think the part of the frustration exhibited by Mr. Chaffetz was well founded, I think. And it is

really a result of a GAO report. And I think this was this is an October 2010 GAO report on the Southwest border. And Gene Dodaro

was acting then, and I have enormous respect for him. I have

worked with him on a lot of different issues.

But this report invites Mr. Chaffetz’ frustration. It says basically

that everything is fine. At least that is what the political appointees and the higher level folks are saying, everything is fine,

we are working together. But then when you do talk to the agents

in charge on the ground there, they are saying, 17 of the 26 stations, you know, reported that there were limitations put on their

ability to patrol those areas, specifically the patrol agents in

charge; 14 of 17 stations reported that they have been unable to

obtain a permit or permission to access certain areas in a timely

manner because of how long it takes to work with land management folks.

And then earlier, Ms. Thorsen, you conceded that the folks on

the ground, based on the chairman’s questioning, were applying a

different standard for border agents to get into certain areas. That

is of great concern. And I think by this inconsistency in what we

want to happen down there and what is happening is going to invite legislation here, because the MOU is not being followed. And

it is against the backdrop of a very serious situation.

I have a report here that says we had 600 more civilian homicides in one border town, Ciudad Juarez, in 2010 than we had in

all of Afghanistan. And Afghanistan is 30 million people. Ciudad

Juarez is 1 million, 1.3 million. And we had 600 more homicides,

and it is right on our border. I will tell you, I would be more angry

than Mr. Chaffetz has been this morning if I thought that the safety of the people that I represented was being ignored.

So you got to get your act together here. We expect you to protect

the border, and we don’t think that that is happening. Now, you

say that you can do this, that you can get together on this and

make sure the environmental concerns are addressed and still conduct robust security on the border. You need to do it. You need to

do it. This is a—you know this is a problem. You know I think I

have been to Iraq and Afghanistan about 22 times. I think I should

be spending more time in Mexico from reading these reports.

And this is right on our border, and we can’t afford to be slack

anymore. So I am hoping that either you address it with a tighter

description of what is permissible for the border security folks, or

you just come to Congress and say, we can’t resolve this, and why

don’t you do it on our behalf?

55

But you know this can’t continue, this cannot continue. You

know the folks that live in those border towns on the Mexican side

deserve better, and so do the U.S. citizens in that area, and we got

to get serious about this.

And so, you know, I think, Ms. Thorsen, if you have folks on the

ground who are applying a different standard that restricts Border

Patrol folks from going into some of those wilderness areas in a

timely fashion to protect the American people, then you need to

have some consequences here. And I didn’t hear a real clear answer

on that when the chairman asked you whether you—actually, I

think it was the ranking member asked you, are folks being disciplined when they stop border security folks from going in there

and doing their job? And I didn’t hear a yes. I heard, well, we have

you know guidelines that allow us to do that, but I didn’t hear of

anybody being fired for blocking access to certain areas on the part

of the security folks.

Mr. Vitiello, I know you give a rather rosy picture, but the facts

don’t bear that out, sir, I am sorry to say. So we got to, we have

to be better at this. And you know, like I said before, I will close

my remarks, but you are inviting, you know, Congress to go in

there and decide what the rules are going to be. And 435 people

are going to make that decision in the House and 100 in the Senate. It may not come out the way you think it will. It may not be

a better solution than an MOU, a cooperative MOU between the

two agencies, is what I am saying.

So I just ask you to, as Mr. Kildee has suggested, you got to work

together better and start living up to the terms of the MOU and

making sure that our Customs and Border Patrol folks have access

to that area. Thank you. I yield back.

Mr. BISHOP. Thank you, Mr. Lynch.

Let me explain the process. Just for a point of information for

Mr. Pearce’s question, 68 percent of Organ Pipe is still off limit to

Americans, and 95 percent of it is wilderness.

We have a vote that is taking place right now, a second 5 minute

vote, and then a third vote that is 15 minutes. Although I am going

to ask Members to come back here, to vote on that last one very

quickly and then come back here. So I am still estimating about

a 10-minute break that we will have to take right now and do voting.

I apologize for this. This is an abnormal day. Under our new

schedule, the morning should have been reserved for this, so I am

sorry about that. I hate to walk out on you. We are going to try

and get this through as quickly as possible, but we will have to

take that break right now. So thank you and we will be back shortly.

[Recess.]

Mr. BISHOP. All right. We are going to try and step up here. Obviously, some of our Members are en route, and we will work that

through as the time comes on, because I think there is going to be

another vote coming up here quickly. We would like to get this

panel and let you get on your way afterwards.

So let me do a couple of questions from my end as well. I want

to set the stage in the right frame for the first time, because I

think some of our conversation a bit earlier was somewhat

56

disingenuine. When we were talking about the MOU not being able

to be worked and the people weren’t understanding, we are not

talking about folks on the ground or some pions out there; we are

talking about high level individuals. We are talking about the person in charge of the National Park that should know what those

definitions of exigent circumstances are and should not have a tizzy

fit when the Border Patrol comes to an end and then he gets upset

because when they decided to leave that dead end, they made a circle route instead of the three-point Y turn that he insisted that

they make in his particular park.

We are talking about the National Park director who did not

know the definition. We are talking about the director of the

Utah—the U.S. Fish and Wildlife Service. He was the one that sent

the letter to Border Patrol and did not put the definition and

threatened them with closure if they did not by his definition of the

MOU.

The MOU is not working because people on the field don’t understand it; it is people here in Washington that aren’t getting it. The

MOU may actually be working for the Department of Interior, but

it is not helping national security. And that is the key issue to do

with it.

Now, I want to go for a few minutes with the Ajo project that

was done in Organ Pipe National Monument. We already said that

is 95 percent wilderness. This was dealing with 30 mile section of

the border that was there.

Once again, Ms. Thorsen, the result of the negotiations with—

what was the result of the negotiations with Border Patrol over

this Ajo project?

Ms. THORSEN. At this point in time, Chairman, the Ajo project

includes four towers that are situated on Organ Pipe Cactus and

operating now and actually been very successful in their operation

in supporting the Border Patrol security mission and actually our

folks as well.

Mr. BISHOP. And what did Homeland Security have to do to get

that permission?

Ms. THORSEN. Well, my understanding, they met with the folks

on the ground, the superintendent and his staff, to find the appropriate locations for those towers.

Mr. BISHOP. And what did they have to pay for that? Like I am

running out of time here, I am sorry. They paid millions of dollars

in mitigation fees for those towers. Were those towers eventually

moved from where the Border Patrol wanted them? It should be a

yes/no answer.

Ms. THORSEN. My understanding is that some were moved.

Mr. BISHOP. Yeah, OK.

Ms. THORSEN. Some were not. And in the end——

Mr. BISHOP. So what we are talking——

Ms. THORSEN. If I may finish, Mr. Chairman. In the end the Border Patrol did agree and we all came to the conclusion on where

those towers could be situated and still allow them to succeed in

their border security mission.

Mr. BISHOP. But it was moved over 3 miles and we had a coverage blackout in areas of heavy alien ingress into this particular

country because they were moved, and still Border Patrol had to

57

pay millions of dollars to the Department of Interior to get that.

When you demand money of Border Patrol for these mitigation

fees, does the mitigation have to be specifically directed to the entity in which it is being mitigated, or can you use that anywhere?

Ms. THORSEN. The purpose of mitigation funds, for instance, in

this situation, any activity——

Mr. BISHOP. No answer the question. Does it have to be to the

area where mitigation occurs, or can you use it anywhere?

Ms. THORSEN. The funding has to be used in relation to the mitigation for that purpose, for the activity that took place for the

tower.

Mr. BISHOP. All right. Good. Then tell me why, in January 2009,

you and the Border Patrol once again entered into an agreement

dealing with the fencing in the Rio Grande Valley sector. You got

$50 million from the Department of Interior, and $22 of that money

went to buy more land in Texas for impact of ocelots, who supposedly were impacted because of the construction noise and lighting while that fence was being built.

Now, Ms. Thorsen, do you know when the last time any know

ocelot was found in the lower Rio Grande natural wildlife refuge

before this fence was constructed in 2009?

Ms. THORSEN. I do not know that, sir.

Mr. BISHOP. Good. I will give you the answer. It wasn’t in this

century. So if there is not existing ocelot population within 20

miles of the project, how come you have to have an ocelot

impactment from noise and lighting that couldn’t possibly have

reached them?

Ms. THORSEN. The Fish and Wildlife Service’s and our Department of the Interior’s mission is to conserve our resources, including the wildlife habitat.

Mr. BISHOP. I only got 30 seconds. Give me a specific answer to

the question. If there are no ocelots down there why did you bill

the resource from them with this type of money that has nothing

to do with the project.

Ms. THORSEN. It does have to do with the project, sir. The miti- gation funding for the fence and the $50 million that you address,

Secretary Chertoff and Kempthorne agreed that the expenditure of

that funding was appropriate for those mitigation measures.

Mr. BISHOP. There are no ocelots down there.

Ms. THORSEN. The wildlife habitat in those locations down there,

the purpose of that is to maintain habitat for the ocelot. Whether

or not we have seen one recently, it still habitat for the ocelot.

Mr. BISHOP. Recently? In the last 20 years, you haven’t seen one,

and yet you put half of the money from this extortion down there

for that particular project. Later I am going to ask you about $5

million that was supposed to be for jaguar prevention, but half of

that went to Mexico instead. We got a lot more questions about

how you are using this mitigation fund and where these moneys

are going, and I have run out of time so I am going to have to yield

to the ranking member, Mr. Tierney.

Mr. TIERNEY. Well, again, I want to thank you for being here. I

mean, I get it. I get what the issues are here. I assume by this time

all of you get it as well. And I don’t want to keep beating a dead

horse, but I—you know, I guess the point is that I think there have

58

been some situations where people have thought that it has been

affected to some degree by the memorandum of agreement by the

laws that exist or whatever, but you believe there is a way to work

it out with the memorandum of agreement and by working together

cooperatively on that.

I was taken aback by Mr. Chaffetz’ remark that people are dying,

people are dying. Can you give me any instances of a person who

has died as a result of a wildlife regulation or environmental regulation?

Mr. VITIELLO. No.

Mr. TIERNEY. Ms. Thorsen, can you?

Ms. THORSEN. No.

Mr. TIERNEY. Mr. Jensen, can you?

Mr. JENSEN. No, I am not aware.

Mr. TIERNEY. Certainly, if there were, I assume you would be

with heightened urgency to resolve this in some fashion, am I

right?

Mr. VITIELLO. Yes, sir.

Ms. THORSEN. Yes, sir.

Mr. TIERNEY. I mean, I think it is disturbing to all of us that,

you know, if there is a notion that there is some inability of the

Border Patrol to get to an area they need to get to protect our national security, I think we would all be hopping up and down. But

I am going to give you an opportunity. Again, I am not hearing

that from you. Where there might be an isolated incidence of something being delayed, you are telling me, as far as you know, that

in any particular anecdote or incident, there has not been one that

has resulted in danger or death or anything of that nature and

that, you know, we probably need some processes to expedite resolution of some of these issues, and that is something you are all

charged with. Does that sound reasonable?

Mr. VITIELLO. Agreed. The framework exists to solve these problems in an expeditious way. Now, we can all recognize that within

any relationship, you are going to have different expectations, but

the MOU is designed to set those expectations uniformly.

Mr. TIERNEY. So what is a bigger problem. Is the remoteness of

these areas, the ruggedness of the terrain, is that a bigger problem

than trying to work on differences over, you know, any conflict with

national security and some of these environmental or wildlife regulations, or is it about the same, or is it not a problem at all?

Mr. VITIELLO. Well, there are various challenges that agents

have while patrolling the border, terrain among them, this particular issue among them, the frameworks about their authority

and how they exercise it. There are concerns about private land as

well within the immediate border. So that is the role of the patrol

agent, to sort through those things. That is the role of leadership,

to give them the vision and the plans to make that work and be

effective as they possibly can within those frameworks. There are

limits on all the authorities and the activity of Federal agencies,

and we are not excluded from that.

Mr. TIERNEY. There was one incident report that was mentioned

here earlier about a request to put up some technology or review

cite us for that. It got delayed 4 months before it was implemented.

59

Is that a particular situation that any of you have been made

aware of?

Mr. VITIELLO. I know of the issue in preparation for the hearing.

Mr. TIERNEY. Can you tell me a little bit about it?

Mr. VITIELLO. As I understand it, briefly, there was a mobile

scope truck that we wanted to move from one area to the other.

Eventually, that got sorted through, and we moved it.

Mr. TIERNEY. And was there a 4-month delay.

Mr. VITIELLO. As I understand it, yes.

Mr. TIERNEY. And what consequences were likely to have occurred because of that delay?

Mr. VITIELLO. I am not aware of specific things. So in the context

of the operation, people wanted to move that equipment and that

capability from one location to the other. And so under the terms,

we need to sort through that. Under the terms of the MOU, those

are the conversations that we are supposed to have.

Mr. TIERNEY. You would agree that 4 months seems extraordinary for a time to resolve such an issue.

Mr. VITIELLO. I don’t know the specifics in that regard, but it

seems reasonable that 4 months is something that we ought to be

thinking about.

Mr. TIERNEY. I mean, it strikes me as being extraordinary, and

that is something we all ought to be thinking about on that.

Mr. VITIELLO. Agreed.

Mr. TIERNEY. So we can trust that is being worked on, that that

kind of delay is——

Mr. VITIELLO. In this case, as I understand it, but the piece of

equipment after that time period did get moved.

Mr. TIERNEY. Much more quickly.

Mr. VITIELLO. Right.

Mr. JENSEN. Congressman, I may not be able to speak to the specific circumstances of that one example, but I think it is important

that we have had reference to the GAO report numerous times

today. And if I could, I would like to read two sentences from the

report.

Mr. TIERNEY. Sure. What page are you on?

Mr. JENSEN. This is on the summary page, right off the front, the

highlights. We have heard this now numerous times from various

members: Patrol agents in charge for 14 of the 17 stations reported

that they have been unable to obtain a permit or permission to access certain areas in a timely manner because of how long it takes

for land manners to conduct required environmental and historic

property assessments. That is in the GAO report. You need to read

all the way through. And I hope that our witnesses on the second

panel——

Mr. TIERNEY. Well, give us a synopsis of what the rest of it would

give us if you read through.

Mr. JENSEN. The other sentence is, despite the access delays and

restrictions—and this is what really counts—22 of the 26 agents in

charge report that the overall security status of their jurisdiction

is not affected by land management laws.

Mr. TIERNEY. So we have to work on the other four.

Mr. JENSEN. Yes. We do have areas we need to work. The MOU

helps with that, and we are working to address those.

60

Mr. TIERNEY. Thank you for clarifying that, and I yield back my

balance.

Mr. BISHOP. Representative Chaffetz.

Mr. CHAFFETZ. I yield to the gentleman from Utah.

Mr. BISHOP. Do you have the report there that you just read?

Mr. JENSEN. I have the cover page here.

Mr. BISHOP. The cover page doesn’t deal with that. Because on

top of that, it tells how 17 to 26, 14 to 26, and I went through eight

pages of documented evidence where the delays were causing problems. That data you said, 22 out of 26, you actually go to page 32

in the report and find out what it says, is that the agents in charge

of those particular areas told us their ability to maintain operational control in this area of responsibility have been unaffected

by land management laws. In other words, no portion of their station’s jurisdiction have had their border security status downgraded as a result of land management laws. That is not the same

thing.

And yet if you will go through that report, page after page, example after example, is an experience in which there had been delays

for Border Patrol, and it is directly because of the land managers

on the ground there from your department and your department.

Ms. Thorsen, is there ever, ever an opportunity when you do this

MOU debate, MOU workout, where the Border Patrol does not

have to ask your department for something? Is there ever where

you actually go and have to ask them, or is Border Patrol always

having to come to you and you get to make the decision on whether

it is allowed or not?

Ms. THORSEN. No, the purpose of the MOU, and particularly the

exigent circumstances situation, they make that decision. That is

why we drafted the framework for those——

Mr. BISHOP. No. To whom do they have to go for permission.

Ms. THORSEN. The permission lies in the MOU. It is in their

judgment, the Border Patrol agent’s judgment, to execute operation—exigent circumstance or emergency pursuit in—when they

feel the need.

Mr. BISHOP. Then go back to the report and read what happens

there, because that request has to be approved by the land manager, and if the land manager doesn’t, then all hell is there to pay.

This MOU does not work because it is an unfair MOU, which

means Border Patrol has to come to you and beg for permission.

And time after time after time, you are not granting that permission, and you are not doing it in a timely fashion. And when you

do do it, then you ask for unmitigated amounts of money which

Congress has no control. We do not know how much money you are

getting from Border Patrol. We don’t know where you’re spending

it. And the one time we tried to get an appropriations act, you actually gave us a list of what you are getting and where you are

spending it, and it was removed in a conference committee report.

There are so many problems that are down there, it makes one’s

head spin, especially with the rhetoric that we are getting here

today. I yield back to the chairman.

Mr. CHAFFETZ. Reclaiming my time.

Mr. Vitiello, my understanding, according to GAO, they classify

about 129 miles, or 15 percent, were classified—of the border—

61

were classified as, ‘‘controlled’’ and that the remaining 85 percent

were classified as managed. Can you explain the difference from

your understanding of the two?

Mr. VITIELLO. It has to do with the revision of the national strategy in 2004. We defined what we believed was operational control

for the context of building resources along the border. So specific

to the plans that were made in sectors and in station level planning, what we decided was operational control meant that you had

the ability to detect, identify, classify, respond and resolve to intrusions at the immediate border. It as a very tactical definition designed for the local people to understand what they believe the capabilities and resources were.

Mr. CHAFFETZ. So what is managed.

Mr. VITIELLO. The difference between managed and control is the

amount of timing from our resolution to—from the incursion. So

control at the immediate border would happen in realtime at the

immediate border and managed would be some portion less than

that, or it would take longer to get to that.

Mr. CHAFFETZ. And you have talked about how over the course

of your career, you have gone from just a few thousand agents to

roughly 20,000 agents.

Mr. VITIELLO. We are currently just over 20,000; that is correct.

Mr. CHAFFETZ. Just over 20,000. Yet I look here at this map, and

I look at the Tucson region, as compared to say either Yuma or El

Paso or Del Rio or whatever you want; why is it that 51 percent

of the problem seems to be in the Tucson region? Why is that?

Mr. VITIELLO. We believe it is because of our success in other

areas. We have managed—when I came on the Border Patrol——

Mr. CHAFFETZ. I am trying to figure out why you are having little to no success in Tucson.

Mr. VITIELLO. We are having great success in Tucson.

Mr. CHAFFETZ. How can you say that?

Mr. VITIELLO. Listen, I have watched us build resources in Tucson.

Mr. CHAFFETZ. You are the head of this agency and you——

Mr. VITIELLO. Sir, I was in Tucson in the year 2000 when we

were catching 11⁄2 million people across the Southwest border, and

over 600,000 of those people were coming in through the Tucson

sector. Last year alone, we are at 51 percent; this year we are 44

percent. Now, is that wild success? Is that, you know——

Mr. CHAFFETZ. You just said it was great success.

Mr. VITIELLO. We have done a lot of work this year, last year,

the year before and since 2000, when it was completely out of control there. We are maintaining what we have—the gains we have

made in Tucson and are proceeding to give that area resources like

they have never seen before. CBP has over 6,000 employees in the

State of Arizona. We alone have, in the Tucson sector alone, nearly

4,000, and we are moving toward a number over 4,000. There is

more technology out there than there has ever been. We spoke

about the Ajo towers and the Tucson——

Mr. CHAFFETZ. My time has expired. I think you are——

Mr. BISHOP. Mr. Kildee.

Mr. KILDEE. Thank you, Mr. Chairman.

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Mr. Vitiello, you mentioned earlier in your testimony that in carrying out various responsibilities, that you consult with the tribes.

How is that working out? Is that running as you would want it to

run?

Mr. VITIELLO. Sure. So we have—within the public lands liaison

apparatus, we have people who are designed to do liaison work.

The leadership also pays attention to the relationships that exist

for the Indian nations that are at the immediate border.

Mr. KILDEE. I am very happy to hear that. Sometimes agencies

tend to forget that. We know that Article I, Section 8 of the Constitution says that Congress shall have the power to regulate commerce with foreign nations, the several States and Indian tribes. So

that is the constitutional basis for that.

And I am always, with any group, whenever you are called upon

to work with the Indian tribes—it all works well in Michigan. We

have 12 tribes in Michigan, and it works well there, and you find

it is working well in your area also, or your area is very broad.

Mr. VITIELLO. Similarly, you know, relationships are—you need

constant maintenance, and so things ebb and flow. But we understand the import of our responsibilities there, and leadership in the

field takes those responsibilities seriously.

Mr. KILDEE. Thank you for that. Thank you very much.

Mr. VITIELLO. Thank you.

Mr. BISHOP. Representative Pearce.

Mr. PEARCE. Thank you, Mr. Chairman.

Mr. Jensen, how many miles of roads are in the border zone of

the Coronado Forest?

Mr. JENSEN. I would have to get back to you on the specific number of miles of roads.

Mr. PEARCE. You wouldn’t happen to know that, would you, Mr.

Vitiello?

Mr. VITIELLO. I do not.

Mr. PEARCE. You all don’t do patrols out there.

Mr. VITIELLO. Coronado is part of the area Tucson sector covers,

yes.

Mr. PEARCE. Do you have anybody in the audience that might

know that?

Mr. JENSEN. We will have to get back to you, sir.

Mr. PEARCE. Mr. Vitiello, you just stated in response to a question that the framework exists to solve the problem with respect to

getting into areas with limited access by Federal law, that would

be wilderness and such areas as that. Did I hear you correctly?

Mr. VITIELLO. That is correct.

Mr. PEARCE. And then did I hear you correctly that in cases of

danger and death, that you would have a heightened sense of

emergency?

Mr. VITIELLO. Yes.

Mr. PEARCE. Can you explain why 68 percent of Organ Pipe is

still—people are advised not to go in there, American citizens are

advised not to go in there? Doesn’t it qualify as an area if you tell

people don’t go in there, that they might not come out alive,

wouldn’t that be danger or death? Wouldn’t that move at sort of

the top of the list of your heightened sense?

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Mr. VITIELLO. Zone by zone, area by area, we are concerned with

our responsibilities within the area of the immediate border. And

so Organ Pipe is a challenge because of its status. It is also a challenge because of the activity that is there. But we are making—we

have made plans. We are making investments to put that situation

in hand.

Mr. PEARCE. It has been that way for—when did they first start

putting that off limits to people?

Mr. VITIELLO. I don’t know that specifically, but I am going to

guess it is somewhere around the 2000 timeframe when it was a

lot busier than it is now.

Mr. PEARCE. So you have had 10 or so years, 11 or whatever.

Ms. Thorsen, I am interested, again we are talking about how

easy it is to work with wilderness, and it doesn’t affect us in the

least. I mean, that is sort of the testimony. Can you explain the

reasoning behind not allowing a surveillance tower in the Organ

Pipe Wilderness, and it was forced to be placed outside the wilderness in a place that couldn’t see as much of the border and as well?

Wouldn’t that be an effect? Or is that just sort of come into the

close but not qualify category?

Ms. THORSEN. Under the provisions of the Wilderness Act, one of

the challenges we have had is placement of permanent structure,

which would be a tower. In negotiations and discussions that we

have had with the Border Patrol and the park, they moved those

towers in locations within the boundary of the wilderness but that

are not designated, that chunk of land is not designated specifically

wilderness. So they are actually generally in the same vicinity;

they are just are not sitting on what is designated as wilderness.

Mr. PEARCE. And so, in this case, are you trying to tell me that

the alternate site had as good visibility as the site that was in the

wilderness? Because we have exactly the opposite testimony. And

if that is the case, if you choose a case with less surveillance capacity, then I still along, with my colleagues, don’t understand how

you can sit here with a straight face and say that it doesn’t affect,

that everything is OK, that framework exists.

I yield back, Mr. Chairman.

Ms. THORSEN. If I may respond, Congressman.

Mr. PEARCE. That is up to the chairman.

Ms. THORSEN. If I may respond, Mr. Chairman, to the Congressman’s point.

Mr. BISHOP. Go ahead.

Ms. THORSEN. In working with the Border Patrol, the Border Patrol, and I am going to speak some for Mr. Vitiello here, there if

the tower does not give them the totality of what they want to see,

what they will do is implement additional measures to fill that gap.

For instance, in their new approach, SBInet has gone away, the

integrated tower—integrated fixed tower approach, they will supplement those areas with mobile surveillance units or RVSS sites

or other types of technology to fill those gaps, so they will not go

uncovered between technology and resources.

Mr. PEARCE. I will pass your assurances along to the constituents

of mine that live along the border who are scared to death every

day, who witnessed or who know the family who was killed and

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whose family itself lives in our district, I will give them your reassurances. Thank you.

Mr. BISHOP. Are there other questions people have for another

round?

Raul, did you have a question you wanted to ask?

Mr. LABRADOR. I yield my time for Mr. Chaffetz.

Mr. CHAFFETZ. Thank you.

Mr. Vitiello, I want to clarify. Are you aware of anybody who has

been killed along this border region that we are talking about here?

Mr. VITIELLO. Which——

Mr. CHAFFETZ. I mean, I talked specifically about the problems

that we are having in Arizona, and Mr. Tierney’s questions about

people are dying. Are they not dying?

Mr. VITIELLO. There have been deaths along the border, and

there have been that directly impact the Border Patrol, yes.

Mr. TIERNEY. Will the gentleman yield?

Mr. CHAFFETZ. Yes, please.

Mr. TIERNEY. Just so we understand, my question was, was there

people dying in direct correlation to the lack of enforcement of an

environmental or one of these other laws that we are discussing

today, not whether people are dying. So let’s be genuine about this.

Mr. VITIELLO. Correct. In the context of that question, this specific issue has not caused deaths that I am aware of.

Mr. TIERNEY. Thank you very much.

Mr. CHAFFETZ. So you are not aware of anybody dying that is

coming north, trying to go through the areas, going through the

Organ Pipe National, you are not aware of anybody who has died

doing that?

Mr. VITIELLO. Look, there are deaths along the immediate border

for people who dehydrate or get——

Mr. CHAFFETZ. And coming north, correct.

Mr. VITIELLO. That is right.

Mr. CHAFFETZ. I mean, I don’t know how you define the immediate border, but the legal definition is 100 miles. So you are telling

me that you are not aware of anybody.

Mr. VITIELLO. That has died as a result of our lack of ability to

move in mechanized vehicles on protected lands, no, I am not

aware of that.

Mr. CHAFFETZ. We will go through this in greater detail.

Anyway, let’s go to Mr. Jensen here. Your written testimony

states that the Forest Service has dedicated 13 officers to the border zone of the Coronado Forest; 10 of them are accompanied by

canine units. What is the Forest Service total commitment to the

border zone across the Southwest border? Are those officers armed,

and what capacity do they have to stop illegal activity and defend

themselves against criminals with high-powered weapons?

Mr. JENSEN. I will stand to be corrected, but I understand there

is on the range of perhaps 50 agents in the Southwestern region

of the Forest Service.

Mr. CHAFFETZ. Are they armed?

Mr. JENSEN. To my understanding, yes, they are.

Mr. CHAFFETZ. And are they able to apprehend somebody?

Mr. JENSEN. Yes, they are.

Mr. CHAFFETZ. How often does that happen?

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Mr. JENSEN. I would have to get back to you on the specifics of

how often that happens, but they are in constant contact and undertake joint operations with the Border Patrol in apprehension activities, so I would imagine that it would be a fairly routine duty.

Mr. CHAFFETZ. Your written testimony states that the Forest

Service and the Border Patrol, ‘‘rely on each other’s strengths to

work toward the common goals and mutual interests for the public

and the National Forests,’’ basically to protect the endangered and

sensitive species. According to the Coronado National Forest Web

site, this includes the Mexican gray wolf, cactus, the pygmy owl,

the desert pupfish and the Pima pineapple cactus. Are we to believe that the Forest Service and the Border Patrol are balancing

our national security with the Pima pineapple cactus and the

desert pupfish?

Mr. JENSEN. It is not that sort of tradeoff, sir. We look at the existing laws in the books that require us to protect those threatened

and endangered species.

Mr. CHAFFETZ. But as Mr. Bishop pointed out, why is it deferred

to—in the balance of the MOU, why is it that you are given deference, that they can’t do what they think is best to secure the

United States of America and secure their officers. They have to

come get permission. That is the problem. That is why we are here

today.

Mr. JENSEN. As Ms. Thorsen has testified, it is our experience in

the Forest Service that the Border Patrol has all full authority to

pursue suspects in all cases and circumstances around the border.

Mr. CHAFFETZ. In all circumstances, that is your understanding

of the MOU, in all circumstances.

Mr. JENSEN. We have not run into any trouble on Forest Service

lands in this regard.

Mr. CHAFFETZ. They have full and unfettered access to use motorized vehicles.

Mr. JENSEN. In the exigent and emergency circumstances.

Mr. CHAFFETZ. OK. So that is different than full and unfettered

access, which you have just said.

Mr. JENSEN. Allow me to clarify then. In the case that is outlined

within the MOU, the Border Patrol has the ability to pursue suspects, be it on foot, be it on horseback or be it on vehicle, when the

terrain and the circumstances dictate, and it is their decision and

control when they do that.

Mr. CHAFFETZ. I have a—Mr. Chair, I—and to the ranking member, everybody here, I have a serious problem where we are

prioritizing desert pupfish above national security. I just personally

believe that we really ought to be protecting the United States of

America and protecting those officers who are putting their lives on

the line every single day.

Mr. TIERNEY. Will the gentleman yield?

Mr. CHAFFETZ. When we have delays the way we have, I just find

it unconscionable.

Mr. TIERNEY. Will the gentleman yield?

Mr. CHAFFETZ. Sure.

Mr. TIERNEY. I think the delay issue we all have an issue with,

and that is one of the things I left you, but I want to try and nail

something down here, the three of you.

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When we have laws, the environmental law or the wilderness

law, things of those nature, the laws are in effect, but you have

memorandums of agreement as to how you will strike a balance

when there is a competing interest, am I right on that?

Mr. VITIELLO. Correct.

Mr. TIERNEY. And one of the competing interests would be a national security issue when somebody from the Border Patrol

thought that it was an exigent circumstance or an emergency that

they get into the area, correct?

Mr. VITIELLO. Correct.

Mr. TIERNEY. And in those instances, where they think the national security is at risk or there is an emergency or an exigent situation, it is the Border Patrol agent and no one else who uses their

professional judgment and determines whether or not they will go

in there by mechanized vehicle or any other way, is that correct?

Mr. VITIELLO. That is correct.

Mr. TIERNEY. So they are not setting up some pupfish or whatever it is up against something else; their determination, their professional judgment is, does national security require that we go in

there by whatever means necessary and when they make that decision, it overrides Interior, it overrides Forestry, it overrides everybody else, am I correct?

Mr. VITIELLO. Yes, sir.

Mr. TIERNEY. Thank you. I yield back.

Mr. CHAFFETZ. I would say to my friend from Massachusetts: A,

exigent circumstances has not been clearly defined; it has not been

clearly delineated. No. 2, routinely the Border Patrol is not able to

do what it is able to do in other areas in terms of locating towers,

operating with vehicles.

You know, I wasn’t going to do this, but I think I am going to

do this. If you have a sensitive heart, I am telling you, this is the

most graphic thing I have ever seen. If you are a young child, don’t

watch this. I am going to show you four slides that are happening

right near our border; this is on the Mexican side of the border.

And this is what I am concerned about, what we are putting our

men and women down there and saying go protect us, but we are

not going to give you the resources because we are worried about

the pupfish, so, you know, you go on horseback, you go just walk

it. Go ahead, just show the first slide and just roll through these.

We are going to do this swiftly. Don’t look if you are sensitive to

any sort of graphic image, OK. This is the kind of thing that we

are sending our agents to deal with on a daily basis.

Mr. TIERNEY. Mr. Chairman, a point of clarification. Is there a

contention that our Border Patrol people and Interior people and

others are responsible for the Mexican side of the border where

these films are from?

Mr. CHAFFETZ. Let’s keep going. They are dealing with this

threat coming through the United States of America. They are having to deal with this by the hundreds—you can turn them off.

Please, turn them off.

They are having to deal with this by the hundreds of thousands.

I in good conscience cannot be a participant in the U.S. Congress

and not give every tool and resource to the Border Patrol to secure

that border. I don’t give a crap about the pupfish. I do care about

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America, and I do care about those Border Patrol agents. And

when you tell them they have to go on horseback when they much

rather be in a vehicle, that is fundamentally wrong. I yield back.

Mr. BISHOP. OK. Do you want another minute in fairness?

Mr. TIERNEY. No, no. I mean, look, I think we have made the

point a hundred times here that the Border Patrol people are in

whatever vehicle they think they need to be in at the appropriate

time, and I think we can leave it at that.

Mr. BISHOP. Thank you.

I appreciate that, the answers you gave him. Make sure they are

enforced in some way. And you can be happy the pupfish has a 52-

acre buffer zone that has been paid for by border security. So we

wish that—we appreciate the witnesses for your testimony. Members of both committees have—if they have additional questions for

the witnesses are asked to submit those, and we will ask for you

to respond for them in writing.

We are now ready for the next panel of witnesses. And do you

need some time to reconfigure the table here? For the next panel

of witnesses, we are also going to have to—they will need to be

sworn in. But I would like, and especially while Mr. Pearce is here,

to welcome up to the panel George Zachary Taylor, who is a retired

Border Patrol officer and a founding member of the National Association of Former Border Patrol Officers. We will invite Gene Wood,

who is also a retired Border Patrol officer and founding member of

the National Association of Former Border Patrol Officers. Mr.

Wood will be introduced by our colleague Mr. Pearce, if you would

like to take a few minutes to do it justice.

Mr. PEARCE. Chairman Chaffetz and Chairman Bishop, members

of the subcommittee, thanks for allowing me to be here on the dais

with you today. I would like to take this opportunity to introduce

my friend and constituent Gene Wood, Las Cruces, NM. Gene spent

30 years in the Border Patrol and served as sector chief in

McAllen, TX, and San Diego, CA. I look forward to his testimony

and to the testimony of the other witnesses here.

But thanks again, and welcome him from New Mexico, sir.

Thanks.

Mr. BISHOP. Thank you. I also want to recognize Jim Chilton,

who is a fifth generation cattleman, whose land stewardship practices have won him awards. His family ranch is 55 miles southwest

of Tucson and includes 4 miles of border.

As well as Ms. Mittal—is the first name Anu?

Mr. MITTAL. Yes.

Mr. BISHOP. That is the first name I have right today. Thank

you.

Anu Mittal, who is the director of Natural Resources and Environment for the Government Accountability Office. And I understand you are the author of the GAO report that we have been referencing throughout this case.

Mr. Chaffetz.

Mr. CHAFFETZ. It is the custom of the Oversight and Government

Reform Committee to swear in all witnesses. If you would please

rise and raise your right hands.

[Witnesses sworn.]

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Mr. CHAFFETZ. Let the record reflect they answered all in the affirmative. Thank you, Mr. Chairman.

Mr. BISHOP. We thank you all for being here.

As mentioned to the earlier panel the practice—I just said that.

As mentioned to the earlier panel, all of your written testimony

will appear in the hearing record. You will have 5 minutes to summarize it. The lights in front of you will I hope give you a countdown. If the yellow light comes on, that means you have a minute

left. The red light means we will ask you to finish your testimony

as you can. Now, I will also tell you that we are going to have another series of votes sometime soon. What I would like to do is try

to get as far along as we can so we don’t have to hold you. I hope

none of you have afternoon plane flights going out of here because

it ain’t gonna happen.

So if we could, Mr. Wood, we will just go left to right again. If

you will be the first one to give your testimony, we would appreciate hearing from you.

STATEMENTS OF GENE WOOD, NATIONAL ASSOCIATION OF

FORMER BORDER PATROL OFFICERS, FOUNDING MEMBER

AND FORMER SECTOR CHIEF PATROL AGENT, MCALLEN, TX,

AND SAN DIEGO, CA; GEORGE ZACHARY TAYLOR, NATIONAL

ASSOCIATION OF FORMER BORDER PATROL OFFICERS,

FOUNDING MEMBER AND RETIRED SUPERVISORY BORDER

PATROL AGENT, NOGALES, TX; JIM CHILTON, CHILTON

RANCH, ARIVACA, AZ; AND ANU MITTAL, DIRECTOR, NATURAL RESOURCES AND ENVIRONMENT, U.S. GOVERNMENT

ACCOUNTABILITY OFFICE, WASHINGTON, DC

STATEMENT OF GENE WOOD

Mr. WOOD. Thank you very much, Chairman Chaffetz and

Bishop, and thank you to Mr. Pearce for his gracious——

Mr. BISHOP. Sir, if that thing moves, can it move any closer to

you so we can hear you a little bit better? It is hard to hear.

Mr. WOOD. Is that better?

Mr. BISHOP. That is much better.

Thank you, sir.

Mr. WOOD. My name is Gene Wood. As a retired member of the

U.S. Border Patrol and founding member of the National Association of Former Border Patrol Officers, it is a real honor for me to

talk today on the merits of the proposed legislation.

I do not represent the Border Patrol in today’s proceedings. Instead, my testimony will rely largely on personal knowledge and

the expertise of hundreds of former agents who are members of our

organization. Their many years of collective experience I believe

will enhance my ability to present to you informative, accurate information and conclusions.

The Border Patrol was established in 1924, and for nearly 87

years, the supervisors and their agents have successfully developed

techniques and strategies to prevent the illegal entry of aliens into

our country. One of the most effective of these techniques is deterrence. It has proven to be a desirable strategy because it does not

involve the dangers involved in physical arrests. It does not involve

costs always incurred in the detention and removal of aliens.

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Today I would like to address part of my testimony to enforcement efforts in the Tucson sector of the Border Patrol. I have chosen that sector because I served there before I was chief as the deputy chief. It is one of the largest sectors on our southern border.

It has 261 miles of common border with Mexico. Additionally, the

sector area of responsibility contains large areas with various restrictive land designations. Since 2004, leadership of that sector

has changed frequently with successive assignments of some of the

most distinguished and experienced chiefs in the Border Patrol.

With the support of Congress, the agency work force has increased,

and we have even experimented with the assignment of National

Guard troops. Technology has been improved.

I believe, gentlemen, as does the National Association of Former

Border Patrol Officers, that the difficulties encountered by the Border Patrol to gain operational control are not the result of poor

management or lack of resources, it is simply an issue of denied

access.

Unfortunately, our country’s willingness to accept these unwise

restrictions has been aggravated in recent years by the unrelenting

pressure of drug cartels and other international criminal enterprises. That brings us to one of the most difficult questions facing

present Border Patrol supervisors and agents. How do we protect

our national security successfully in these highly restricted areas?

The time-proven and effective technique gained through years of

experience are severely limited or at times completely eliminated

because of these self-imposed restrictions. Expensive technologies

cannot be efficiently implemented, and manpower assets become

more difficult to utilize.

For these reasons, the leadership of the National Association of

Former Border Patrol Officers enthusiastically endorses the decisive remedies proposed by Congressman Bishop. This includes the

100-mile limits and waiver of all the restrictions listed in that proposed legislation. We believe that if enacted, it will have a high

probability of success, and it is an absolute necessary first step to

achieve our goal, our national goal of operational control.

We also believe that the approval of this proposed legislation will

help convince the American public that Congress is now seriously

seeking remedies to improve national security and the public safety

of our citizens. There is another reason it makes perfect sense to

do this. My time is up.

[The prepared statement of Mr. Wood follows:]

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Mr. BISHOP. Thank you.

You do have your written report as well, and there will be questions for you at the same time. And I still think we are going on

the floor, so we have more time here.

Mr. Taylor, if you would like to go, you are recognized for 5 minutes.

STATEMENT OF GEORGE ZACHARY TAYLOR

Mr. TAYLOR. Thank you, sir.

Chairman Bishop, Chairman Chaffetz, members of the committee, thank you for allowing the National Association of Former

Border Patrol Officers to address this distinguished assembly. I am

here to speak for passage of Mr. Bishop’s legislation, H.R. 1505, the

National Security and Federal Lands Protection Act.

This bill is brilliant in its simplicity. Why? Because the primary

purpose of border security is to ensure national security and promote public safety for all Americans, including Border Patrol

agents on the border. Each of you represent constituents, towns

and communities that have been adversely affected by illegal immigration and drug smuggling. No community in the United States

is safe from these transnational criminals and criminal organizations.

As long as the external borders of the United States remain open

to them, they will continue to come. The level of violence these

groups are capable of and routinely employ is incomprehensible to

any civilized person. Border Patrol agents in Arizona spend a significant amount of time patrolling public lands because much of the

land along the Arizona border is public land.

These agents report that the Department of Homeland Security

and Bureau of Customs and Border Protection are intentionally

misrepresenting the situation along the southern border, especially

concerning the relative safety of the border area and the number

of aliens detected that get away.

Therefore, I am here today to tell you what rank and file Border

Patrol officers are unwilling to tell you, even if subpoenaed and

placed under oath, for fear of reprisal from their employer. The

agents in the field are saying that the Nogales, AZ, urban border

area has become a more dangerous place to work and that the Federal public lands surrounding Nogales have evolved into a lawless

area routinely prowled by heavily armed drug and alien smugglers

from Mexico.

Additionally, agents do not have unencumbered access on all

public lands to patrol the border. The concept is simple. If you cannot access the border, you cannot patrol the border, and therefore,

you cannot secure the border. Limited access areas, including wilderness and refuge areas, present a greater likelihood that agents

will encounter armed criminals who will not hesitate to fire upon

them and that the probability that if anyone is seriously injured

they will surely die before that injured person can be safely transported or evacuated because of access issues.

There is also the fact that they are reluctant to patrol these

areas effectively because they may find themselves the subject of

a dispute between their agency and the agency controlling the land

they seek to patrol. So the agent on the ground, the very idea that

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a plant or some obscure animal is more important than their life

is an unsettling reality that further discourages them in their efforts to secure the border.

You need to protect our Border Patrol agents. An existing palpable concern is the perceived lack of interest on the part of the

Department of Homeland Security to aggressively pursue criminals

that kill or do—attempt to kill or do kill Border Patrol agents. To

sweep these issues under the carpet is reprehensible.

Here I have a copy of the Arizona hunting and trapping regulation showing, and I quote from the—Homeland Security issues

along the international border may affect the quality of a person’s

hunt. The delineated area goes from the California border to the

New Mexico border and includes all land south of interstate highways 8 and 10 and north as far as Arizona City, that line passing

to the near west of Tucson. We have briefers’ reports of agents following tracks of an all-terrain vehicle that cross the border illegally

near Lukeville, AZ. They followed the trail across public lands

north into Maricopa County, which is Phoenix, and apprehended a

load of marijuana on an all-terrain vehicle driven by 15-year-old illegal alien with a rifle. Department of Interior employees have

erected vehicle barriers 70 to 80 miles north of the Mexican border

in the Table Top Wilderness to prevent smuggling vehicles from

driving further north.

I can go on for hours with individual examples of why this legislation is necessary. However, my 5 minutes is nearly up. We urge

you to support Mr. Bishop’s bill, H.R. 1505, to protect Federal

lands and our Border Patrol agents by signing on as a co-sponsor

as soon as possible to give the Border Patrol agent on the ground

the unencumbered access to Federal public lands within 100 miles

of the border they must have to secure the border and provide

them the reassurance that the U.S. Congress is behind them in

that effort.

[The prepared statement of Mr. Taylor follows:]

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Mr. BISHOP. Thank you very much.

Mr. Chilton, you are recognized for 5 minutes.

STATEMENT OF JIM CHILTON

Mr. CHILTON. Thank you, Mr. Chairman.

I am a rancher, and ranchers shoot straight. And it was really

upsetting to sit here and listen to the bureaucratic double-talk by

the Forest Service, Fish and Wildlife—the BLM and the Border Patrol.

I live on the border. Four miles of my ranch is the international

border. The border is not signed or marked and consists of a fivestrand barbed-wire fence, similar to the ones one sees along highways. There is no wall, and you would never know it was the international border by viewing it. But the cartels know.

We strongly believe that the Border Patrol must control the border at the border, not 10, 20, or 100 miles inside America. We have

heard that—and it was a few years ago—that the Border Patrol

found several backpacks near our ranch which contained Yemeni

passports. We wonder whether the owners of the backpacks were

tourists or terrorists.

We must protect the national security above all else. National security must not be trumped by environmental laws or Federal land

managers. It would seem impossible to win World War II if the

military had been forced to comply with current laws, such as the

National Environmental Policy Act, the Endangered Species Act,

the Clean Water Act, and other acts enacted by Congress after

World War II. The construction of thousands of military bases and

airfields and port facilities inside the United States during the war

would have been delayed for years.

Wouldn’t it make sense to control the border at the border by

completing the border fence? There is no border fence from Nogales

to Sasabe of about 50, 60 miles. And wouldn’t it make sense to

have functioning 21st-century communications near the border, installing cameras and sensors and using drones and helicopters and

satellites and other proven technologies developed by the military?

The Border Patrol needs to be able to construct roads, helicopter

pads, and place forward operation bases at very close or next to the

border and be free of impediments caused by environmental laws

and Federal land managers. Land managers must not be allowed

to interfere with the access of the essential use of land to protect

we, the citizens.

Recently, environmental mitigation diversions resulted in $50

million of Border Patrol funds being transferred to the U.S. Fish

and Wildlife Service for alleged environmental damage. The real

environmental damage is being caused by drug and people traffickers, whose impact is enormously more harmful to the border

than the Border Patrol.

We are told by the Border Patrol that approximately 20 percent

of the undocumented border crossers have criminal records. Criminals who engage in human and drug transportation find it convenient to use wildlife refuges and wilderness areas as easy corridors

to hide and travel. My fellow rancher, Rob Krentz, was murdered,

with the killer escaping back to Mexico through the San

Bernardino National Refuge. Emphatically we oppose the designaVerDate 17-JUN-2003 12:32 Oct 04, 2011 Jkt 000000 PO 00000 Frm 00136 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\68220.TXT KATIE PsN: KATIE
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tion of any and all new wilderness areas, wildlands, or refuges

within 100 miles of the southern border. Such designations are virtual gifts to Mexican cartels.

It is outrageous that hundreds of Mexican cartel scouts, with the

best binoculars, night vision, and encrypted satellite phones, have

been found to occupy the tops of mountains near our ranch and

near our house and dozens of miles inside the border. As a consequence, the foreign cartel scouts know where the Border Patrol

is located at all times and can then carefully guide AK–47-gunpacking druggers and people smugglers through the mountains and

valleys without being spotted by the Border Patrol.

We have been burglarized twice. Ranchers in the border area

cannot leave their houses unguarded for a few hours, since their

homes are likely to be broken into if someone is not there. We live

with weapons near our bed. Our doors have weapons next to them.

We have weapons in our vehicles, and we attach weapons in our

scabbards on our saddles.

The Border Patrol must control the border at the border so that

citizens’ civil rights, property rights, and human rights are protected. Ranchers along the border cannot have peace of mind until

the border is, in fact, secured.

[The prepared statement of Mr. Chilton follows:]

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Mr. BISHOP. Thank you. I appreciate that.

Just so you know, there is a vote that is going on right now, and

what we have told Members is to go quickly vote and then come

back. So we are not walking out of this. There will be people coming back here again.

Ms. Mittal.

STATEMENT OF ANU MITTAL

Ms. MITTAL. Chairman Chaffetz and members of the committees,

I am very pleased to be here to participate in your joint hearing

on environmental laws and Border Patrol operations.

As you know, 40 percent of the southwest border is Federal land,

managed by the Departments of the Interior and Agriculture. Even

though these lands are characterized by remote and rugged terrain,

they have not deterred illegal border crossers, whose activities have

damaged the environment by creating thousands of miles of illegal

trails, dumping tons of trash, and causing wildfires to escape on

these lands.

Border Patrol and land agency officials both recognize that stopping illegal traffic as close to the border as possible is essential not

only to protect national security but also to protect the natural and

cultural resources on Federal lands.

Last fall, GAO issued two reports on Border Patrol operations on

Federal lands along the southwest border. My testimony today will

summarize the key findings of both of these reports. These reports

were prepared collaboratively by staff in GAO’s Homeland Security

and Justice team and GAO’s Natural Resources and Environment

team.

Accompanying to me today is Rich Stana, the director who leads

GAO’s work on border security issues.

First, we found that Border Patrol must comply with various

land management laws such as NEPA, ESA, and the Wilderness

Act when conducting operations on Federal lands. Under these

laws, Border Patrol, like other Federal agencies, must obtain permission from the land agencies before agents can undertake activities such as maintaining roads and installing surveillance equipment on Federal lands.

To help implement these laws, Border Patrol and the land agencies have developed several interagency agreements. We heard

today about the 2006 MOU. And these have led to numerous instances of enhanced cooperation and better access for Border Patrol

on some Federal lands.

However, we also found instances where, despite these interagency agreements, land management laws had impacted Border

Patrol’s access to Federal lands. For example, 14 of the 26 stations,

as was earlier mentioned, responsible for patrolling Federal lands

along the southwest border told us that they sometimes face delays

because of the length of time it takes land managers to complete

NEPA requirements before a permit can be issued.

We found that some of these delays could have been reduced if

Border Patrol had used its own resources to perform required

NEPA environmental assessments, and other delays could have

been reduced if the agencies had conducted programmatic environmental impact statements for the region, as allowed under the act.

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We recommended that the agencies take these steps to avoid such

delays in the future.

In addition, five stations told us that, because of the ESA and

the presence of endangered species, they had to change the timing

or location of their ground and air patrols. However, they also told

us that these changes had not affected their ability to detect or apprehend illegal aliens on Federal lands.

Second, we found that while land management laws had caused

delays and restrictions, they had not impacted the operational control status for 22 of the 26 Border Patrol stations along the southwest border. Instead, we found that 18 of these stations reported

that the remoteness and ruggedness of the terrain and dense vegetation had affected their level of operational control on Federal

lands more than access delays or restrictions caused by the land

management laws.

According to these stations, the key to obtaining operational control on Federal lands on the southwest border is to have a sufficient number of agents, have access to additional technology, and

have additional tactical infrastructure. They did not identify changing the environmental laws as a key requirement.

Four stations along the southwest border did tell us that their

ability to achieve or maintain operational control for Federal lands

under their jurisdiction had been affected by land management

laws. However, only two of these stations had requested additional

resources to facilitate increased or timelier access to regain operational control. In both of these cases, their requests were denied

by senior Border Patrol officials because of other higher agency priorities.

Finally, 7 years ago, we were very critical of the lack of information sharing and communication that existed between the Border

Patrol and the land agencies. In 2010, however, we found that the

agencies had made significant progress in some areas as a result

of the implementation of various interagency agreements, but we

also found that they could still take additional steps to ensure that

coordination of threat information occurs in a timely manner and

that agencies have compatible radio communications. The agencies

are currently taking actions to implement our recommendations.

Mr. Chairman, this concludes my prepared statement. I would be

happy to respond to any questions you have.

[The prepared statement of Ms. Mittal follows:]

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Mr. BISHOP. Thank you.

I appreciate all of you for giving your statements. They will be

there for the record. And if I forget at the end, if Members have

additional statements that are written, we may ask you to respond

to those at the same time in a timely fashion.

Ms. Mittal, let me go through a couple of questions, then, if I

could, before the rest of my colleagues. As I understood you as you

were talking here, a very nice, very balanced report you gave us

here, but you did find a correlation between environmental laws

and delays of the Border Patrol’s ability to get permission and permits from some land managers.

Ms. MITTAL. What we found is that the implementation of the

environmental laws had resulted in delays and restrictions.

Mr. BISHOP. This is a question that—you never ask questions if

I don’t know what the answer is. But I asked it of one of the other

panelists, and I wanted to give you the question as well.

In all of these issues that you went through, did you ever find

a chance, when the request was made, that it was Border Patrol

always asking the Interior or Ag for permission; it was never the

other way around?

Ms. MITTAL. You asked that question earlier, and one of the

things that we noticed is that Border Patrol has a lot of flexibility

under these acts to actually undertake a number of these environmental assessments themselves, and they have not been doing

that.

Mr. BISHOP. As long as they are allowed to do that. And I appreciate that very, very much. Thank you.

Let me ask a couple other questions for the other three witnesses: Mr. Wood, Mr. Chilton, and Mr. Taylor. In your opinion,

from your experience on the ground—and, actually, I wish the

other panel was here to listen to some of your testimony, as well—

are environmental laws, such as the Endangered Species, Wilderness Acts, compatible with border security? Do you have examples

of the problem that you have seen with those?

Any of you?

Mr. Chilton, go ahead. Why don’t you just go down that row.

Mr. CHILTON. The answer is, no, national security should not be

trumped by environmental laws or rules and regulations of the different departments like Interior, Forest Service, and Fish and

Wildlife.

There is a refuge in Arizona called the San Pedro National Conservation Area. It starts at the international border where the San

Pedro River enters the United States. There is a wall that comes

each way and stops, and there is a 1,500-foot gap. The refuge is

2 miles wide, and the conservation area is 50 miles long. The Border Patrol has no access into that area except at the border, and

that is limited access. It is a path for druggers, illegals, and perhaps terrorists to walk 50 miles into the United States.

And how does the Border Patrol try to patrol it? They patrol the

perimeter. So if you have 50 miles one way and 50 miles the other

way and 2 miles on the end, that is 102 more miles of fence that

the Border Patrol has to patrol. And they are not allowed into it.

The roads, since it has become a national conservation area, have

deteriorated so you can’t drive. And the refuge—or the conservation

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district manager will not let the Border Patrol or anyone grade the

roads and have access in there.

Mr. BISHOP. Thank you. I appreciate that.

Mr. Wood and Mr. Chilton, let me change that question slightly

for you. You are former Border Patrol agents. Do you see anything

fundamentally strange that the Border Patrol has unlimited access

on private property but does not have unlimited access on public

property to do their jobs?

Mr. Wood.

Mr. WOOD. Thank you for the question.

It has not gone unnoticed to us that the memorandum of understanding that we have discussed earlier, it is nine pages of singlespaced typing. It is complicated to read. But the point I am making

here is, in contrast to that MOU, the Federal statute now in effect

allows Border Patrol unrestricted entry within a distance of 25

miles from any external boundary and to have access to private

lands, but not dwellings, for the purpose of patrolling the border

to prevent illegal entry of aliens into the United States.

That statement is contained in only four sentences in paragraph

(a)(3) of Section 287 of the Immigration and Nationality Act.

Mr. BISHOP. Thank you.

My time has expired here, although I just want—I read one of

the footnotes that you put in there that I thought was interesting.

In the 1990 Arizona Desert Act that created one of these wildlife

refuges, it was specifically in there the language that any kind of

wilderness designation or environmental designation would not be

allowed to interfere with the concept of national security.

I found that a unique concept there. Maybe when we have some

other time, I can come back and ask you to respond to that one.

Mr. Chaffetz.

Mr. CHAFFETZ. Thank you.

The Border Patrol agent that was here represented that he

thought what was happening in the Tucson region was great success. How would you react to that, Mr. Chilton?

Mr. CHILTON. The Border Patrol still is not at the border. The

Border Patrol is doing what they can, I respect what they are trying to do, but the border is not secure. They can’t get down to the

border. They try to patrol 5, 10, 15 miles inside the border and

allow us to live in a no man’s land.

There has been some diminishment in traffic across, but when I

talk to the Border Patrol people in Nogales, they say the traffic is

moving further west into the Indian nation and into the Organ

Pipe area.

And we don’t see the people moving across our ranch. At one

time, there was 30,000 or 40,000 people coming through a year. We

don’t see those people anymore because there are scouts on top of

the mountains who are guiding the cartels and the people smugglers through our ranch and other ranches. And the Border Patrol

is known—they know where the Border Patrol is at all times. And

the Border Patrol doesn’t see them, and they move right through

the country, clear on to Pinal County and to Phoenix.

Mr. CHAFFETZ. How dangerous is it there?

Mr. CHILTON. Well, when we are riding horseback, I pack two

guns, a rifle and a pistol. And if I see people coming along with

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an AK–47 and a whole bunch of people with backpacks with drugs

in them, I go the other way—fast. If I have to, I will fall off my

horse and go to shooting.

It is dangerous. It is dangerous, and we should not have to live

under those conditions. The border should be controlled at the border.

Mr. CHAFFETZ. Mr. Taylor, can you talk to me a little bit about

the morale that you are seeing there? And how do these agents

deal with the differences between what they can do in the other

areas and what they can do in wilderness-type designation areas?

Mr. TAYLOR. Well, we found out that in not only just the wilderness designations but the public land that adjoins the wilderness—

and I am talking specifically about the Pajarita Wilderness—one of

the first actions I had when I went there as a supervisor, at that

time, you may or may not be aware, we had Federal troops supporting the Border Patrol. We had a combat alert team from the

Marine Corps base working in conjunction with us. And a firefight

ensued—this was back in 1989, I believe—between the Marines

and the packers. And the land managers were not concerned about

the fact that we had a firefight; they were concerned about the fire

that ensued in the wilderness area. And so we had to quit going

in there.

Mr. CHAFFETZ. And how big a space and area was that?

Mr. TAYLOR. That particular area—there is a protected area

within the protected area, and that is where they were. And the

reason the Marines were there is because that is where the smugglers chose to come through the border. And that internal, inside

of the wilderness is relatively small; I think it is 150 acres.

Mr. CHAFFETZ. Ms. Mittal, a question for you. This definition between controlled and managed, did you feel like that there was a

unified vision and understanding of those two definitions and what

was truly controlled and what wasn’t controlled?

Ms. MITTAL. We used the Border Patrol’s definition of operational

control. So that when we were talking to their agents, patrol

agents in charge, we were using definitions that their agency had

developed and that they should have been fully understanding of.

So that is why we used the definition of operational control that

was defined by the Border Patrol.

Mr. CHAFFETZ. Very good.

My time has expired. I yield back.

Mr. BISHOP. Mr. Kildee, do you have questions for these witnesses?

Mr. KILDEE. Thank you very much, Mr. Chairman.

First of all, I want to thank all of the witnesses for your testimony.

I would like to ask Ms. Mittal, did the GAO find that any environmental laws need to be repealed or dramatically altered in

order for the Border Patrol to effectively perform its mission?

Ms. MITTAL. During our audit, what we found is that it was the

implementation of the environmental laws that was causing the

delays and restrictions that the Border Patrol agents had identified.

Nobody recommended that there was a particular law or a particular provision of the law that needed to be changed. What we

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noted was that the MOU that was implemented by the three agencies was not effective in implementing the environmental laws.

Mr. KILDEE. So Congress, then, in its position, should have, perhaps, more hearings on how we can better have the enforcement

of these laws, then.

Ms. MITTAL. In our review of the four laws that were repeatedly

cited by Border Patrol, what we found is that the environmental

laws provide a lot of flexibility as well as a lot of options, and that

the Border Patrol has not exercised all of the flexibilities and all

of the options that are provided to it under these environmental

laws.

So it is very easy to go back and blame the land management

agencies when you have not yet taken the actions that the laws

provide you as the action agency. So I think the reason we did not

make any suggestions or recommendations about changing the environmental laws was because there are flexibilities and options

available to Border Patrol that it has not yet exhausted in trying

to comply with the environmental laws.

Mr. KILDEE. OK. Based on your interviews, then, how significant

a problem are public land access issues to the Border Patrol sector

chiefs that you interviewed? What is their feeling on——

Ms. MITTAL. There were 17 Border Patrol agents in charge, out

of the 26 that we surveyed, that told us that they had experienced

access delays. However, not in every case did that cause a problem

in their ability to fulfill their function. For example, there were five

that had to change their patrols as a result of endangered species.

But all of those Border Patrol agents told us that that had not impacted their ability to apprehend and detect illegal aliens on Federal land.

So there was a mixed bag. In some places, the delays had caused

an impact on their operations; in other places, it had not.

Mr. KILDEE. Thank you very much. I know Congress wants to

and all of us at this table want to make sure we have the proper

balance in writing our laws, and all your testimony today has been

helpful.

And I thank you, Mr. Chairman.

Mr. BISHOP. Thank you.

I have some more questions. We will do another round here, if

possible.

Mr. Taylor, can I ask you—we have talked a lot about whether

Border Patrol can go in under the exigent or emergency circumstances. Can you just tell me what is the difference between

patrolling and going in for exigent or emergency circumstances?

Mr. TAYLOR. Patrolling is something that is done routinely, daily.

It involves two things: deterring people from crossing the border

and detecting them once they have. Those are the two basic principles of patrolling the border.

If you do not have access to the border, you can’t patrol it, so you

have to back off. The further you have to back off, the more territory you are ceding to the enemy.

Mr. BISHOP. Well, so, then, can I followup on that? Can you explain the obstacles the Border Patrol faces if they are blocked from

building new roads or maintaining existing roads? And, you know,

is it just good enough to have a single road running through it?

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Mr. TAYLOR. No.

Let me qualify my background. I have been a field agent in the

Border Patrol 26 years. The last 14 were in Arizona, so I worked

that area.

When you have a situation where you cannot get in there and

pull somebody out that gets in trouble, you are best off not to send

them in there. So what happens is, the area doesn’t get patrolled

at all.

Mr. BISHOP. I see. Thank you.

Mr. Wood, can you explain the Big Hatchet repeater MOU, what

it is and why it is a concern?

Mr. WOOD. Yes, sir. Thank you.

The Big Hatchet is the name of a mountain peak located in

southern New Mexico. It is the sole source for communication. Historically, there was a repeater up there; the land managers found

out about it, and the Border Patrol was required to take it down.

Since then, it has been put back up but with restrictions that make

it very, very difficult to manage.

As an example, the Border Patrol will be required to take that

down if that area is designated wilderness. The caveat to that is,

they will not be able to take it down, except through certain

months of the year, because of the lambing season for some endangered species there.

It is the highest peak in the area. It is going to be subject to

damage by lightning and other natural effects. If that repeater goes

down from lightning and it is during the period where Border Patrol cannot access it for those limitations, then that entire area is

going to be without communication and the Border Patrol agents

assigned in there are going to be in drastic danger.

I, as a former chief, would probably pull the agents out of there

if that happens. It is just not worthwhile to take that kind of

chances against one of our agents.

Mr. BISHOP. Thank you. Thank you.

Mr. Taylor, last December, Agent Terry was murdered on the national forest land. How should that tragedy influence this discussion?

Mr. TAYLOR. I mentioned earlier, Mr. Chairman, that those areas

that border wilderness—and, in this particular case, the Pajarita

Wilderness borders the Coronado National Forest on the south—

the ingress into the United States of the bandits that were involved

in that apparently came through the Pajarita up through the Coronado, stayed in the Tumacacori Highlands, and at the intersection

of the Tumacacori Mountains and the Atascosa Mountains is where

the gunfight happened, where the agent was killed.

And, apparently, the agent tried to follow the people that did the

shooting back into Mexico, and they went through the Pajarita Wilderness, which the agents have no access to. As a matter of fact,

there is not even a fence there in many places. It has been down

on the ground so long that the vegetation has covered it.

Mr. BISHOP. Is this the map that we were talking about? Is this

the area?

Mr. TAYLOR. Yeah. Yes, sir.

Mr. BISHOP. So can you explain what we are looking at with that

map?

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Mr. TAYLOR. OK. If you will look in the lower-right-hand corner,

where that arrow is, that is where the Nogales Border Patrol station is. The next arrow to the left is coming up through the

Pajarita more or less on the east side, and then the arrow on the

left is the main corridor. They are coming from the west.

And what they are going through, where you see that box, is

what I call the kill zone. This is where the bandits—now, there are

two groups of bandits. There are people that are trying to protect

their drugs and aliens, and the other side is trying to rip them off

from those people. And both groups, apparently, are armed.

Once they get past the kill zone, you will look at the arrow in

the upper-right-hand corner, that is where the Border Patrol checkpoint is. And the arrows to the left follow the highlands and take

the aliens and these drug smugglers beyond the Border Patrol

checkpoint.

And the purpose of the box in there is to show that almost all

of that kill zone is located on public land. And it is in the Coronado

National Forest, and pretty much in the northwest quadrant is

where Agent Terry was killed. And in the northeast quadrant, in

a 4-day period, within the last 10 days, we found three bodies. We

don’t have a ruling yet on what caused the deaths.

Also, in the upper-left-hand corner, in December 2009, is where

Agent Russo was shot. And we believe it was the same group of

bandits that shot both agents.

So, if I can expand that just slightly, if you will think about

Nogales as a horseshoe, it is covered on the west by public land,

it is covered on the east by public land, and it is all mountains.

And the reason the alien smugglers use that is because when they

have the high ground, they have the tactical advantage. They can

see the Border Patrol coming, and the Border Patrol has to go to

them. And the only way they can do that is on foot. Horses won’t

work in that area, because in some of those places, to traverse

them, you have to go on your hands and knees, it is that steep.

I hope that answers your questions.

Mr. BISHOP. Thank you. In more detail than I have.

Mr. Kildee, I am over here. I have a couple more questions. Did

you have anything else further or are you——

Mr. KILDEE. No.

Mr. BISHOP. OK.

Mr. Chaffetz.

Then let me just ask two more questions of you all, and then we

will give you—we will let you go, actually. Let me do the first one,

for either Mr. Wood or Mr. Taylor.

In a letter of the Fish and Wildlife Service to DHS regarding the

San Bernardino Wildlife Refuge, an endangered species concern,

the Fish and Wildlife Service asked the Border Patrol to stop doing

road-dragging operations to cut signs near the refuge.

Can you just explain to us what sign cutting is and why it is an

important tool? And what are the implications if the Border Patrol

cannot do this, or cannot use this tool?

Mr. WOOD. Yes, sir. As I alluded to earlier in my testimony, sign

cutting is one of the most preferred and effective techniques that

the Border Patrol has developed over the years.

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Sign cutting effectively requires that a road be parallel to the

border, if that is the area that you want to protect. They call it a

drag road because they are frequently smoothed over by one method or another. So that evidence of illegal entry is easily identified

by the agents that are working that area.

Now, one of the critical things of that is you have to have access.

You can’t effectively do sign cutting or drag roads away from the

border. You have lost the funnel, then, where these entries occur.

And they spread out over large, large distances.

So if we are not able to use that technique, we are losing a very,

very valuable tool that we have developed over years. And I can

tell the committee, the Border Patrol agents now and previously

were some of the best sign cutters in the country. I always have

to mention that. It is an old technique, but it has been very effective for our agency.

Mr. BISHOP. Thank you.

Mr. Chilton, I will give you the last chance to comment on a

question I had.

In 2007, this subcommittee received a letter from one of your

good friends, the Krentz family. And the Krentz family—the purpose of that letter was to oppose a new wilderness designation. In

the letter, Mrs. Krentz stated, ‘‘The Border Patrol should not be excluded, nor should national security of the United States be sacrificed in order to create a wilderness area. We are in fear for our

lives and that of our families and friends.’’

I think you mentioned what happened to Rob Krentz within a

year of that particular letter coming in. And I would ask you—this

isn’t a question. We know what happened down there. This is a sad

situation, should never have been the place. And I realize that Mrs.

Krentz was also hit by another accident. A very difficult situation.

Would you just extend our appreciation to that family and our

concern? And I think one of the reasons why we are pushing forward with these concepts is because of the Krentz family and what

they suffered down there. And if you would do that, I would be appreciative.

Mr. CHILTON. I will. And she helped me prepare my testimony.

And she is really, really angry that wilderness areas are still being

proposed. She is angry that her husband’s killer has not been

found. And she believes that national security demands securing

the border at the border.

And I will be very happy to call her this afternoon and talk with

her. Thank you, Mr. Bishop.

Mr. BISHOP. I appreciate all that.

Mr. Tierney, you get the chance to ask the last question.

Mr. TIERNEY. That is highly unlikely, but we will see how it goes.

I see my friend, Mr. Chaffetz, over there. I seldom get the last word

with him. Thank you.

Ms. Mittal, I just want to ask a couple questions. I had to step

out for a while, and I apologize for that. But I want to reiterate

a little bit what I understand your reports to be.

And, Mr. Stana, behind you, I thank you for your work.

From what I understand, there is no direct correlation between

the environmental laws and the wilderness laws that can’t be resolved by the departments working together and overcoming any

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conflict between national security and the intended protection of

those laws. Is that correct?

Ms. MITTAL. What we found is that the MOU was designed to

take care of those conflicts and make sure that the agencies work

well together. In some areas, the MOU is doing a really good job.

In other areas, it is not as effective.

Mr. TIERNEY. OK. Now, did your study look at all into those

areas that weren’t effective as to what was the cause of that lack

of total effectiveness?

Ms. MITTAL. What we heard repeatedly was that the land management agencies do not have the resources to always expedite

Border Patrol’s requests. But the Border Patrol does have flexibilities under the existing laws to undertake a number of the environmental assessments itself. It can conduct programmatic environmental impact statements for the region. It can establish categorical exclusions for its activities. And none of that has been done

yet.

Mr. TIERNEY. OK. So we need to focus in on making sure that

they use all of their resources properly in that area. We need to

look at increasing the resources where they are lacking. And I suspect that we probably need to do some better training. Is that a

fair thing to say, to make sure that that MOU is operative and implemented in the manner that it should be?

Ms. MITTAL. Yes. Training was something that was brought up

by almost every patrol agent in charge and every Border Patrol

agent that we talked to. They would like to see more regular, faceto-face, land-unit-based training provided by a land management

agency so that they understand the environment that they are

working in.

Mr. TIERNEY. OK. So better training, better use of what resources do exist, better resources where they are lacking. What else

would you recommend to the attention of this Congress?

Ms. MITTAL. I believe that holding the agencies accountable, to

make sure that they can demonstrate to you that they have exhausted all of the available flexibilities that they have available to

their disposal and, yet, they are running into problems in doing

their job.

And if Congress can hold them accountable—I did not hear any

new information provided this morning by any of the agencies that

testified that they have exhausted the authorities that Congress

has provided them. So I think holding them accountable is essential.

Mr. TIERNEY. OK. So it looks to me as though the Congress did

its job in terms of writing the laws. It may not be doing all that

it should be doing in terms of oversight right now.

Ms. MITTAL. Yes.

Mr. TIERNEY. And, hence, here we are. So, thank you very much.

I yield back the balance of my time.

Mr. BISHOP. If there are no other questions? Fine.

First of all, I want to thank this panel very much.

Ms. Mittal, first, I want to appreciate the hard work that you

and the GAO put into the report. I think it is very enlightening,

especially if you read the entire report. And, yeah, I even did read

the footnotes that you put in there.

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Ms. MITTAL. You did, sir. I was very impressed.

Mr. BISHOP. To our three guests: Mr. Chilton, I appreciate you

being here, for giving us the perspective of someone who actually

lives on the border and faces these situations on a daily basis.

Mr. Taylor, Mr. Wood, both of you, thank you for being here and

representing what it was like to—representing the view of a Border

Patrol agent who is no longer worried about his status as a Border

Patrol agent. So thank you for your testimony very, very much. I

appreciate it.

Let’s see. If there is no further business, then, without objection,

this hearing is adjourned.

Thank you again.

[Whereupon, at 1:35 p.m., the subcommittees were adjourned.]

[The prepared statement of Hon. Mike Quigley follows:]

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