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THE COSTS OF DENYING BORDER 

PATROL ACCESS: OUR ENVIRONMENT AND SECURITY 

OVERSIGHT HEARING 

BEFORE THE

SUBCOMMITTEE ON OVERSIGHT AND 

INVESTIGATIONS 

OF THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

Thursday, February 15, 2018 

Serial No. 115–36 

Printed for the use of the Committee on Natural Resources 

( 

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

or 

Committee address: http://naturalresources.house.gov 

(II) 

COMMITTEE ON NATURAL RESOURCES 

ROB BISHOP, UT, Chairman 

RAU ́ L M. GRIJALVA, AZ, Ranking Democratic Member 

Don Young, AK 

Chairman Emeritus 

Louie Gohmert, TX 

Vice Chairman 

Doug Lamborn, CO 

Robert J. Wittman, VA 

Tom McClintock, CA 

Stevan Pearce, NM 

Glenn Thompson, PA 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Scott R. Tipton, CO 

Doug LaMalfa, CA 

Jeff Denham, CA 

Paul Cook, CA 

Bruce Westerman, AR 

Garret Graves, LA 

Jody B. Hice, GA 

Aumua Amata Coleman Radewagen, AS 

Daniel Webster, FL 

Jack Bergman, MI 

Liz Cheney, WY 

Mike Johnson, LA 

Jenniffer Gonza ́lez-Colo ́n, PR 

Greg Gianforte, MT 

John R. Curtis, UT 

Grace F. Napolitano, CA 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Gregorio Kilili Camacho Sablan, CNMI 

Niki Tsongas, MA 

Jared Huffman, CA 

Vice Ranking Member 

Alan S. Lowenthal, CA 

Donald S. Beyer, Jr., VA 

Norma J. Torres, CA 

Ruben Gallego, AZ 

Colleen Hanabusa, HI 

Nanette Diaz Barraga ́n, CA 

Darren Soto, FL 

A. Donald McEachin, VA 

Anthony G. Brown, MD 

Wm. Lacy Clay, MO 

Jimmy Gomez, CA 

Cody Stewart, Chief of Staff 

Lisa Pittman, Chief Counsel 

David Watkins, Democratic Staff Director 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS 

BRUCE WESTERMAN, AR, Chairman 

A. DONALD MCEACHIN, VA, Ranking Democratic Member 

Louie Gohmert, TX 

Rau ́l R. Labrador, ID 

Aumua Amata Coleman Radewagen, AS 

Mike Johnson, LA 

Vice Chairman 

Jenniffer Gonza ́lez-Colo ́n, PR 

Rob Bishop, UT, ex officio 

Ruben Gallego, AZ 

Jared Huffman, CA 

Darren Soto, FL 

Wm. Lacy Clay, MO 

Rau ́l M. Grijalva, AZ, ex officio 

(III) 

CONTENTS 

Page 

Hearing held on Thursday, February 15, 2018 ..................................................... 1 

Statement of Members: 

Grijalva, Hon. Rau ́l M., a Representative in Congress from the State 

of Arizona ...................................................................................................... 8 

Prepared statement of ............................................................................... 10 

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

Louisiana ....................................................................................................... 6 

Prepared statement of ............................................................................... 8 

McEachin, Hon. A. Donald, a Representative in Congress from the 

Commonwealth of Virginia ........................................................................... 4 

Prepared statement of ............................................................................... 6 

Westerman, Hon. Bruce, a Representative in Congress from the State 

of Arkansas .................................................................................................... 1 

Prepared statement of ............................................................................... 3 

Statement of Witnesses: 

Arthur, Hon. Andrew R., Resident Fellow in Law and Policy, Center 

for Immigration Studies, Washington, DC ................................................. 11 

Prepared statement of ............................................................................... 12 

Bell, Dan, President, ZZ Cattle Corporation, Nogales, Arizona ................... 34 

Prepared statement of ............................................................................... 35 

Judd, Brandon, President, National Border Patrol Council, Tucson, 

Arizona ........................................................................................................... 43 

Prepared statement of ............................................................................... 45 

Questions submitted for the record ......................................................... 47 

Nicol, Scott, Co-Chair, Sierra Club Borderlands Campaign, The Sierra 

Club, McAllen, Texas .................................................................................... 39 

Prepared statement of ............................................................................... 40 

Additional Materials Submitted for the Record: 

List of documents submitted for the record retained in the Committee’s 

official files .................................................................................................... 72 

University of Arizona, Professor Kirk Emerson, February 14, 2018 Letter 

to Reps. Westerman and McEachin ............................................................. 72 

(1) 

OVERSIGHT HEARING ON THE COSTS OF 

DENYING BORDER PATROL ACCESS: OUR 

ENVIRONMENT AND SECURITY 

Thursday, February 15, 2018 

U.S. House of Representatives 

Subcommittee on Oversight and Investigations 

Committee on Natural Resources 

Washington, DC 

The Subcommittee met, pursuant to call, at 10:00 a.m., in room 

1324, Longworth House Office Building, Hon. Bruce Westerman 

[Chairman of the Subcommittee] presiding. 

Present: Representatives Westerman, Gohmert, Labrador, 

Radewagen, Bergman, Johnson, Bishop (ex officio), McEachin, 

Gallego, Huffman, Soto, and Grijalva (ex officio). 

Also Present: Representatives Lamborn, Gosar, Napolitano, 

Beyer, Torres, Barraga ́n, Gomez, and Vela. 

Mr. WESTERMAN. The Subcommittee on Oversight and 

Investigations will come to order. 

The Subcommittee is meeting today to hear testimony on the 

costs of denying Border Patrol access: our environment and 

security. I ask unanimous consent that the gentleman from 

Arizona, Mr. Gosar; the gentleman from Colorado, Mr. Lamborn; 

the gentlewoman from California, Mrs. Napolitano; the gentleman 

from Virginia, Mr. Beyer; the gentlewoman from California, Mrs. 

Torres; the gentlewoman from California, Ms. Barraga ́n; the gentleman from California, Mr. Gomez; and the gentleman from Texas, 

Mr. Vela, be allowed to sit with the Committee and participate in 

the hearing. 

Without objection, so ordered. 

Under Committee Rule 4(f), any oral opening statements at hearings are limited to the Chairman, the Ranking Minority Member, 

and the Vice Chair. This will allow us to hear from our witnesses 

sooner and help Members keep to their schedules. Therefore, I ask 

unanimous consent that all other Members’ opening statements be 

made part of the hearing record, if they are submitted to the 

Subcommittee Clerk by 5 p.m. today. 

Without objection, so ordered. 

STATEMENT OF THE HON. BRUCE WESTERMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF 

ARKANSAS 

Mr. WESTERMAN. Seventy-five pounds of marijuana, almost $8,000 of brown heroin, 5 illegal border crossers with unknown intentions, and 11 more illegals who got away. In the course of just 

one evening 2 weeks ago, that is what I witnessed along a small 

portion of the Border Patrol’s Tucson Sector. 

2 

Nationally, in the past few months alone, Border Patrol has already apprehended more than 100,000 border violators, seized over 

200,000 pounds of marijuana, 113 pounds of heroin, and 196 

pounds of the deadly opioid, fentanyl. These numbers do not even 

account for the seizures of drugs at ports of entries. And we should 

keep in mind that these statistics only represent what we have 

caught. Border Patrol uses estimates, so God only knows what we 

have really missed coming through our borders. 

We are dealing with professional drug and human traffickers 

who are organized, well-manned, and sophisticated. During an 

aerial tour on my visit to the border, we spotted scout locations 

hidden in the rocky mountain tops on the U.S. side of the border. 

These difficult to detect spots are used by criminals to monitor and 

communicate Border Patrol’s every move on the ground to guide 

smugglers away from our agents. 

You see the display there. In one of these particular areas, you 

can see in the circle there, is actually a solar panel that was 

packed in that is used to charge cell phones and radios so that 

these scouts can communicate. 

[Slide.] 

You can see from these photos that these scouts are prepared to 

camp out for weeks or months. They have gotten so advanced that 

they have even set up these solar panels. Aside from the garbage 

that they leave behind, at least they are being environmentally 

conscious by using alternative energy sources. 

Border security is a complex and daunting issue that affects our 

lives and public safety. One thing, however, was abundantly clear 

on my trip with Chairman Bishop to the border. We need to ensure 

that we give our law enforcement agents appropriate access to the 

Federal lands they patrol to keep us safe. 

Take, for example, the Tucson Sector’s 262 miles of border, 86 

percent of which is on Federal or tribal lands. Of the approximate 

1,900 miles on the southern border, about 35 percent is on Federal 

or tribal lands. With vast amounts of Federal land, accompanied by 

an array of environmental laws, our Border Patrol agents face statutory restraints in addition to the physical challenges and dangers 

of their jobs. 

Meanwhile, cross-border violators are not just comprised of families and children, they are also human traffickers, drug smugglers, 

and violent criminals. While our agents spend time seeking and 

waiting for authorization from Federal land managers to make 

sure environmental impacts are addressed, criminals trample 

through environmentally sensitive areas leaving tons of garbage 

and waste along their paths. 

On Federal borderlands, it can take months or even years for 

Border Patrol to receive approval to maintain roads or install 

tactical infrastructure, such as communications relays, video surveillance towers, and radars. 

After securing approval from Federal land managers, Border 

Patrol actions may be subject to the NEPA review process, causing 

further delays in operational deployment. Securing approval to 

build just a few miles of new roads on federally owned borderland, 

something agents we spoke to identified as particularly important 

in rugged, isolated terrain, can be a multiple-year process. These 

3 

authorization requirements and permitting delays can have a 

crippling effect on border security. 

During our visit to the Arizona border, one agent explained to us 

the tremendous bureaucratic delays Border Patrol can face to 

remediate or fill illicit tunnels used for drug smuggling. In one instance, we were told about a known tunnel left unfilled for months 

because of the presence of a threatened or endangered species. This 

is unacceptable, and I can guarantee that the drug cartels using 

the tunnel did not care about the welfare of that species. 

Cartels and illegal immigrants don’t wait for environmental 

assessments, they don’t participate in Section 7 ESA consultations, 

and they don’t follow Wilderness Act restrictions. High volumes of 

illegal border crossings do cause extensive environmental damage 

to our public lands by igniting costly wildfires, sometimes as diversionary tactics, and destroying species habitat. 

In addition, safety concerns related to illegal immigration, drug 

smuggling, and even the murder of a park ranger have forced 

national monuments, forests, and wildlife refuges on the border to 

close to the public for extended periods of time. Denying public access betrays our promise to present and future generations to use 

and enjoy these lands as intended. 

Cross-border violators take advantage of Border Patrol’s lack of 

operational flexibility on Federal lands. We need to ensure that our 

environmental laws do not compromise Border Patrol’s ability to 

detect, identify, track, and respond to cross-border violations. 

This hearing gives us the opportunity to hear from people who 

have grappled with the problems of illegal immigration and an unsecured border. I look forward to their testimony and to continuing 

this Committee’s work toward a solution. 

[The prepared statement of Mr. Westerman follows:] 

PREPARED STATEMENT OF THE HON. BRUCE WESTERMAN, CHAIRMAN, SUBCOMMITTEE

ON OVERSIGHT AND INVESTIGATIONS

Seventy-five pounds of marijuana, almost $8,000 of brown heroin, five illegal 

border crossers with unknown intentions, and 11 more illegals who got away. In the 

course of just one evening 2 weeks ago, that’s what I witnessed along a small portion of the Border Patrol’s Tucson Sector. 

Nationally, in the past few months alone, Border Patrol has already apprehended 

more than 100,000 border violators, seized 200,909 pounds of marijuana, 113 

pounds of heroin, and 196 pounds of the deadly opioid, fentanyl. These numbers do 

not even account for the seizures of drugs at ports of entries. 

And, we should keep in mind that these statistics only represent what we’ve 

caught. Border Patrol uses estimates, so God only knows what we’ve really missed 

coming through our borders. 

We are dealing with professional drug and human traffickers who are organized, 

well-manned, and sophisticated. During an aerial tour on my visit to the border, we 

spotted scout locations hidden in the rocky mountain tops on the U.S. side of the 

border. These difficult to detect spots are used by criminals to monitor and communicate Border Patrol’s every move on the ground to guide smugglers away from our 

agents. 

[Slide.] 

You can see from the photos I took, these scouts are prepared to camp out for 

weeks or months. They’ve gotten so advanced, they even set up solar panels. Aside 

from the garbage they leave behind, at least they’re being environmentally conscious 

by using alternative energy sources. 

Border security is a complex and daunting issue that affects our lives and public 

safety. One thing, however, was abundantly clear on my trip with Chairman Bishop 

to the border—we need to ensure that we give our law enforcement agents appropriate access to the Federals lands they patrol to keep us safe. 

4 

Take for example, the Tucson Sector’s 262 border miles, 86 percent of which is 

on Federal or tribal lands. Of the approximate 1,900 miles on the southern border, 

about 35 percent is on Federal or tribal lands. With vast amounts of Federal land 

accompanied by an array of environmental laws, our Border Patrol agents face 

statutory restraints in addition to the physical challenges and dangers of their jobs. 

Meanwhile, cross-border violators are not just comprised of families and children. 

They are also human traffickers, drug smugglers, and violent criminals. While our 

agents spend time seeking and waiting for authorization from Federal land managers to make sure environmental impacts are addressed, criminals trample 

through environmentally sensitive areas leaving tons of garbage and waste along 

their paths. 

On Federal borderlands, it can take months or even years for Border Patrol to 

receive approval to maintain roads or install tactical infrastructure, such as communications relays, video surveillance towers, and radars. 

After securing approval from Federal land managers, Border Patrol actions may 

be subject to the NEPA review process, causing further delays in operational deployment. Securing approval to build just a few miles of new roads on federally owned 

borderland—something agents we spoke to identified as particularly important in 

rugged, isolated terrain—can be a multiple-year process. These authorization requirements and permitting delays can have a crippling effect on border security. 

During our visit to the Arizona border, one agent explained to us the tremendous 

bureaucratic delays Border Patrol can face to remediate, or fill, illicit tunnels used 

for drug smuggling. In one instance, we were told about a known tunnel left unfilled 

for months because of the presence of a threatened or endangered species. This is 

unacceptable, and I can guarantee that the drug cartel using that tunnel did not 

care about the welfare of that species. 

Cartels and illegal immigrants don’t wait for Environmental Assessments, they 

don’t participate in Section 7 ESA consultations, and they don’t follow Wilderness 

Act restrictions. High volumes of illegal border crossings do cause extensive environmental damage to our public lands by igniting costly wildland fires—sometimes as 

diversionary tactics—and destroying species habitat. 

In addition, safety concerns related to illegal immigration, drug smuggling, and 

even the murder of a park ranger, have forced national monuments, forests, and 

wildlife refuges on the border to close to the public for extended periods of time. 

Denying public access betrays our promise to present and future generations to use 

and enjoy these lands as intended. 

Cross-border violators take advantage of Border Patrol’s lack of operational 

flexibility on Federal lands. We need to ensure that our environmental laws do not 

compromise Border Patrol’s ability to detect, identify, track, and respond to crossborder violations. 

This hearing gives us the opportunity to hear from people who have grappled with 

the problems of illegal immigration and an unsecured border. I look forward to their 

testimony and to continuing this Committee’s work toward a solution. 

Mr. WESTERMAN. The Chairman now recognizes the Ranking 

Minority Member for any statement. 

STATEMENT OF THE HON. A. DONALD MCEACHIN, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH 

OF VIRGINIA 

Mr. MCEACHIN. Thank you, Mr. Chairman. 

And thank you to each of our witnesses for taking time and 

spending your own treasure to be with us here today. I also want 

to thank Ranking Member Grijalva for taking the time to join us 

and share his thoughts as someone who lives, and represents people who live, near the border. 

I am disappointed to see that, once again, no one from the 

Administration was invited to be a witness today. This 

Subcommittee is charged with conducting oversight over Federal 

policies in our jurisdiction. It is beyond me to understand how we 

can effectively do that if we continue to fail to invite the entity responsible for carrying them out. Nevertheless, I am pleased to have 

5 

the opportunity to talk about environmental and public safety 

issues along the border. 

As has become a trademark of President Trump and congressional Republicans, some of my colleagues want to blame all of our 

problems on aspiring Americans. They will have you believe that 

immigrants are criminals and gang members who are not only dangerous, but now also apparently environmentally reckless. 

This rhetoric vilifies real human beings who, many times, are 

risking their lives to reunite with their families or escape violence 

from their countries. These are people seeking a better life, not 

seeking to break the law. 

When we finally stop blaming others, we can see that we have 

put laws and systems in place that endanger the economy, environment, and health of our border communities far more than the discarded trash of a border crosser. 

For those who are unaware, the Secretary of Homeland Security 

already has sole authority to waive all laws and legal requirements 

that potentially get in the way of building fences, walls, and roads 

along the border. That means that any law, including our bedrock 

environmental, public health, and safety laws, can be totally ignored when it comes to building a fence, or worse, the President’s 

preposterous wall. If this sounds like an over-reach of power, that 

is because it is. In fact, it has been described as having greater 

reach than any other waiver authority in statute. Some legal experts have even deemed it unconstitutional. 

Despite the backlash and opposition to the waiver, however, the 

Secretary of Homeland Security has used it eight times, three of 

which were in the last 6 months of the Trump administration 

alone. Each time the Secretary has used the waiver, a whole slew 

of environmental and public safety laws have been tossed aside. 

The poster behind me names all 48 of the laws that have been 

waived. These laws are American rights. Rights to hold the government accountable. Rights to be protected from toxic waste and unsafe drinking water. Rights for tribes to protect their own burial 

grounds, to name a few. 

When these laws are recklessly ignored, the people and wildlife 

that live along the border suffer the most. Their health and safety 

are put at risk in the name of a fence. 

If that is not bad enough, Republicans have recently introduced 

a bill that would expand the waiver further. This bill would allow 

the Secretary to use the waiver for all infrastructure and technology, not just building fences and roads. This is unacceptable 

and, quite frankly, dangerous for the communities and public lands 

along our borders. 

Scapegoating the victims and building walls is simply not the solution to our border security issues. This Committee owes the 

American public a real conversation, not this sham. 

I yield back the remainder of my time. Thank you, Mr. 

Chairman. 

[The prepared statement of Mr. McEachin follows:] 

6 

PREPARED STATEMENT OF THE HON. A. DONALD MCEACHIN, RANKING MEMBER, 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

Thank you, Mr. Chairman. Thank you to each of our witnesses for taking the time 

and expense to be here today. I also want to thank Ranking Member Grijalva for 

taking the time to join us and share his thoughts as someone who lives, and 

represents people who live, near the border. 

I am disappointed to see that, once again, no one from the Administration was 

invited to be a witness today. This Subcommittee is charged with conducting oversight over Federal policies in our jurisdiction. I just do not understand how we can 

effectively do that if we continue to fail to invite the entity responsible for carrying 

them out. Nevertheless, I am pleased to have the opportunity to talk about environmental and public safety issues along the border. 

As has become a trademark of President Trump and congressional Republicans, 

some of my colleagues want to blame all our problems on aspiring Americans. They 

will have you believe that immigrants are criminals and gang members who are not 

only dangerous, but who are now also environmentally reckless, apparently. 

I would like to think we can do better than blaming the victim. This rhetoric 

vilifies real human beings who, many times, are risking their lives to reunite with 

their families or escape the violence of their countries. These are people seeking a 

better life, not seeking to break the law. 

When we finally stop blaming others, we can see that we have put laws and 

systems in place that endanger the economy, environment, and health of our border 

communities far more than the discarded trash of a border crosser. 

For those who are unaware, the Secretary of Homeland Security already has sole 

authority to waive all laws and legal requirements that potentially get in the way 

of building fences, walls, and roads along the border. That means that any law— 

including our bedrock environmental, public health, and safety laws—can be totally 

ignored when it comes to building a fence, or worse, the President’s preposterous 

wall. If this sounds like an over-reach of power, that is because it is. In fact, it has 

been described as having greater reach than any other waiver authority in statute. 

Some legal experts have even deemed it unconstitutional. 

Despite the backlash and opposition to the waiver however, the Secretary of 

Homeland Security has used it eight times, three of which were in the last 6 months 

of the Trump administration alone. Each time the Secretary has used the waiver, 

a whole slew of environmental and public safety laws have been tossed aside. The 

poster behind me names all 48 of the laws that have been waived. These laws are 

American rights. Rights to hold the government accountable. Rights to be protected 

from toxic waste and unsafe drinking water. Rights for tribes to protect their own 

burial grounds, to name a few. 

When these laws are recklessly ignored, the people and wildlife that live along 

the border suffer the most. Their health and safety are put at-risk in the name of 

a fence. 

If that is not bad enough, Republicans have recently introduced a bill that would 

expand the waiver further. This bill would allow the Secretary to use the waiver 

for all infrastructure and technology, not just building fences and roads. This is unacceptable and, quite frankly, dangerous for the communities and public lands along 

our border. 

Scapegoating the victims and building walls is simply not the solution to our 

border security issues. This Committee owes the American public a real conversation, not this sham. 

I yield back the remainder of my time. 

Mr. WESTERMAN. The gentleman yields back. 

I now recognize the Vice Chairman of the Committee, Mr. 

Johnson from Louisiana, for an opening statement. 

STATEMENT OF THE HON. MIKE JOHNSON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF LOUISIANA 

Mr. JOHNSON. Thank you, Mr. Chairman. I want to thank you 

for holding this critical hearing to explore the challenges faced by 

Border Patrol agents on Federal borderlands, as well as for your 

trip with Chairman Bishop earlier this month to visit the U.S.- 

7 

Mexico border so we could get an update on the latest status of the 

Nation’s border security. 

Our government has placed the men and women who patrol our 

border, as well as the American citizens who live on or near the 

border, in a very difficult position. We all recognize that. As is all 

too often the case, Washington has created bureaucratic hurdles 

that have adversely impacted the Border Patrol agents’ abilities to 

secure our southern border. 

While well intentioned, the Memorandum of Understanding that 

the Departments of Interior, Homeland Security, and Agriculture 

have entered into has created challenges and delayed Border Patrol 

agents’ abilities to respond to illegal activity in Federal lands adjacent to the border. 

Nearly 35.3 percent of the southern border runs along or through 

federally owned lands. Understanding the regulatory difficulties 

posed to Border Patrol officers due to the Wilderness Act, the 

National Environmental Policy Act, the Endangered Species Act, 

and other policies, illegal immigrants, human traffickers, and drug 

smugglers have targeted Federal lands to conduct their illicit 

activities. 

Those illicit activities not only threaten the personal security of 

those who live along the border, but they have caused extensive ecological and environmental damage. Human waste, garbage, 

wildfires, tunnels, and the like have contributed to serious damage 

to wildlife habitats. 

In a July 2011 Department of the Interior report, the U.S. Fish 

and Wildlife Service identified mass illegal immigration as a likely 

contributing factor in the 79 percent decline in the U.S. Sonoran 

pronghorn population between 2000 and 2002. This is at the Organ 

Pipe Cactus National Monument, 79 percent, that is a massive impact to an endangered species that is found nowhere else in the 

world. 

Republican and Democrat administrations alike have highlighted 

the need to address this issue. For example, former Department of 

Homeland Security Secretary Napolitano wrote in a 2009 letter to 

our Chairman, Mr. Bishop, ‘‘While the U.S. Border Patrol recognizes the importance and value of wilderness area designations, 

they can have a significant impact on U.S. Border Patrol operations 

in border regions. This includes that these types of restrictions can 

impact the efficacy of operations and be a hindrance to the maintenance of officer safety.’’ 

Former Department of the Interior Secretary Salazar stated in 

2010, ‘‘We have seen that national security and environmental 

conservation are mutually supporting goals.’’ 

It was with all of the above in mind that I introduced H.R. 3593, 

the Securing Our Borders and Wilderness Act, which provides a 

statutory fix to an issue perpetuated by bureaucracy that, as we 

have said, is endangering both border security and our Federal 

lands. The bill allows for the Department of Homeland Security to 

conduct border security activities on Federal lands in a manner 

that, to the greatest extent possible, also protects wilderness areas. 

I look forward to highlighting how my bill will help to alleviate the 

impediments Border Patrol agents are facing at present, as well as 

the issues more broadly that we will be discussing today. 

8 

I want to thank all of our witnesses for taking the time to speak 

to this Committee. I yield back, Mr. Chairman. 

[The prepared statement of Mr. Johnson follows:] 

PREPARED STATEMENT OF THE HON. MIKE JOHNSON, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF LOUISIANA

Mr. Chairman, I want to thank you for holding this critical hearing to explore the 

challenges faced by Border Patrol agents on Federal borderlands, as well as for your 

trip with Chairman Bishop earlier this month to visit the border with Mexico to get 

an update on the state of the Nation’s border security. 

Our government has placed the men and women who patrol our border, as well 

as the American citizens who live on or near the border, in a very difficult position. 

As is all too often the case, Washington has created bureaucratic hurdles that have 

adversely impacted the Border Patrol agent’s abilities to shore up our southern 

border. While well-intentioned, the Memorandum of Understanding that the 

Departments of Interior, Homeland Security, and Agriculture entered into has 

created challenges and delayed Border Patrol agent’s abilities to respond to illegal 

activity in Federal lands adjacent to the border. 

Nearly 35.3 percent of the southern border runs along or through federally owned 

lands. Understanding the regulatory difficulties posed to Border Patrol due to the 

Wilderness Act, NEPA, ESA and other policies, illegal immigrants, human 

traffickers, and drug smugglers have targeted Federal lands to conduct their illicit 

activities. 

These illicit activities not only threaten the personal security of those who live 

along the border, but they have caused extensive ecological and environmental damage. Human waste, garbage, wildfires, tunnels and the like have contributed to 

serious damage to species habitat. 

In a July 2011 DOI report, the U.S. Fish and Wildlife Service (FWS) identified 

mass illegal immigration as a likely contributing factor in the 79 percent decline in 

the U.S. Sonoran pronghorn population between 2000 and 2002 at the Organ Pipe 

Cactus National Monument—79 percent. That is a massive impact to an endangered 

species that is found nowhere else in the world. 

Republican and Democrat administrations alike have highlighted the need to address this issue. For example, former DHS Secretary Napolitano wrote in a 2009 

letter to Chairman Bishop, ‘‘While the USBP recognizes the importance and value 

of wilderness area designations, they can have a significant impact on USBP 

operations in border regions. This includes that these types of restrictions can impact the efficacy of operations and be a hindrance to the maintenance of officer safety.’’ Former DOI Secretary Salazar stated in 2010, ‘‘. . . we have seen that national 

security and environmental conservation are mutually supporting goals.’’ 

It was with all of the above in mind that I introduced H.R. 3593, the Securing 

Our Borders and Wilderness Act, which provides a statutory fix to an issue perpetuated by bureaucracy and endangers both border security and our Federal lands. 

The bill allows for DHS to conduct border security activities on Federal lands, in 

a manner that, to the greatest extent possible, protects wilderness areas. I look forward to exploring how my bill will help to alleviate the impediments Border Patrol 

agents face at present, as well as the issue more broadly today. 

Thank you to all of our witnesses for taking the time to speak to this Committee, 

and I yield back. 

Mr. WESTERMAN. The gentleman yields back. 

I now recognize the Ranking Minority Member of the Full 

Committee, Mr. Grijalva of Arizona, for an opening statement. 

STATEMENT OF THE HON. RAU ́ L M. GRIJALVA, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARIZONA 

Mr. GRIJALVA. Thank you, Mr. Chairman. And I appreciate the 

courtesy. 

The Ranking Member has outlined my point of view on this hearing very well. I can’t do much better. But there is an irony today. 

We are at the dawn of another senseless mass murder, 17 students 

9 

and 15 wounded, some critically, in Florida, by a shooter with a 

semiautomatic AR-15. 

No doubt the House will pause today, and we should, to give our 

condolences and prayers to the victims and the families. Then there 

will be a lot of talk about mental health, and then we are going 

to ask people to be more vigilant, but nothing else. No legislative 

efforts to reduce gun violence. No prohibition of bump stocks. No 

universal background checks. Nothing. NRA will keep that from 

happening. They will talk about the sanctity of the Second Amendment and people’s individual rights, and that will take precedent 

over reducing gun violence, that doesn’t take the right from 

Americans to own and have guns. 

But, on the contrary, the Majority of this Committee has—wherever that legislation is to allow silencers on public land, to allow 

armor-piercing ammunition, to allow lead contamination once again 

to kill wildlife. And then today, we are discussing another set of 

rights. And the agenda that the Department of Homeland Security 

wants to have ultimate power to waive laws, ignore the public’s 

right to know, and within the 100-mile zone, to ignore and handcuff due process and basic rights and constitutional guarantees 

that all Americans have. 

I mention that because the question today is simply, does 

Homeland Security and Border Patrol need more power beyond the 

unprecedented authority that the Ranking Member outlined since 

2005 on our public lands, and within that 100-mile area, the 

authority that already exists relative to search and seizure, probable cause, that are handcuffed in that area? And we are asking 

about a unilateral authority to an agency with no review, no accountability, and no responsibility for any negative consequences. 

Besides the constriction of—this is all a tactical response, Mr. 

Chairman, a response in enforcement only justified by some level 

of political hysteria. Things like the mass invasion of MS-13 

pouring over the border. Not true. The gateway in my district of 

drug smuggling and poisoning of America. That was a tweet that 

came from the Majority Committee, which described that part of 

my district. It was cute, but it was a lie. 

And I can swear to you, Mr. Chairman, nowhere in my district 

is there a large pharmaceutical plant like Pfizer pumping out Oxy 

or other opioid-based drugs that have savaged America and made 

a huge profit for them, and continue to be overprescribed. To attack 

drug and human smuggling, those cartels and organized crimes 

need a strategic, focused, consistent, law enforcement response, not 

a pointless $25 billion wall, 10,000 more private for-profit beds, 

waiving environmental laws, handcuffing basic individual and constitutional rights, and, fundamentally, Mr. Chairman, creating a 

distinct second class America in that part of the borderlands, that 

100 miles of the southwest. 

This hearing comes at a time when we are engulfed in a debate 

about DACA, engulfed in a debate about what will happen with 

border security. This is not a time for exaggeration, untruths, generalizations, scare tactics that won’t solve anything. And nor does 

the position that DHS has just taken to oppose any reasonable bipartisan Senate compromise on DACA, that shouldn’t be the guide. 

They only endorse the most extreme pieces of legislation that have 

10 

come out. No bipartisan, no compromise legislation will they 

tolerate. 

I think what we are doing here today is handing over to an agency extrajudicial power. We are handing over to an agency a police 

function, turned into much more than that. The border region 

should not be under martial law, it should not feel like an occupied 

part of America, and should not be treated different than any other 

place. People in Utah, Montana, and Wyoming would not appreciate what is going on in the borderlands. 

I thank you for the witnesses today, and yield back. 

[The prepared statement of Mr. Grijalva follows:] 

PREPARED STATEMENT OF THE HON. RAU ́ L M. GRIJALVA, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF ARIZONA

The question for today is whether the Border Patrol needs even more power. What 

do they have now? 

The REAL ID Act of 2005 gave the Department of Homeland Security authority 

to waive ‘‘all legal requirements’’ that might impede the construction of barriers and 

roads. Think about that for a second. All legal requirements. On any land, public 

or private. That includes any Federal law that gives you and me the right to basic 

things like clean water, clean air, the right to participate in government decisions, 

and the right for native Americans to maintain their sacred burial grounds. It also 

includes any state and local law that might get in the way. The Congressional 

Research Service called the authority ‘‘unprecedented.’’ 

That waiver authority has had consequences for nearby communities. It has produced flooding, erosion, death of animals that endangered or threatened, and loss 

of economic opportunities like ecotourism in low income communities, for starters. 

As anti-democratic, unprecedented and harmful as that waiver authority is, it is 

not enough for the Majority. They want to expand it with authority they call 

‘‘waiving certain Federal environmental laws.’’ Let me translate that for you. They 

want to waive ‘‘all legal requirements’’ when the Border Patrol is working not just 

on walls and roads, but also tactical infrastructure and technology which applies to 

a much larger swath of Border Patrol activity. 

They also want to remove the requirement that the American people are notified 

when the waiver authority is used on Federal lands. That effectively allows individual Border Patrol agents to decide on the spot whether to waive any legal 

requirements on Federal lands within 100 miles of the border. 

Aside from the occasional anecdote, hear-say, and outdated reports, there is no 

evidence that access to Federal lands is a problem. An existing Memorandum of 

Understanding already facilitates the Border Patrol and Federal land management 

agencies to work smoothly together on accessing Federal lands, according to past 

testimony from the Border Patrol. 

It’s not clear to me why, of all the crimes committed in the United States, unapproved entry into the country is the only one to merit a waiver-fueled police state 

in the eyes of the Majority. Given the Majority’s recent letter in defense of the 

rights of the Bundys, it is clear that even repeated domestic terrorism doesn’t rise 

to that level. 

The creeping militarization of our border has done little to slow border crossings. 

But it has affected our border communities. 

I should know. I have border communities in my district. If the Chairmen of this 

Full Committee and Subcommittee had told me they were taking a Committeefunded trip to my district and surrounding area, I could have shown them the nonborder patrol view of border communities. They would have found local economies 

that rely on cross-border commerce. They would have seen a desert landscape arbitrarily split by a wall, blocking local wildlife from their natural migration patterns, 

and scarring the ecology of the entire region. And they would have heard from the 

people who call this region home about what it means to have to surrender their 

basic rights to the Border Patrol. 

Instead, they saw what they wanted to see. Chairman Bishop went so far as to 

tweet to me directly that my ‘‘district has become the gateway for cartels to smuggle 

dangerous drugs into the United States and poison American communities.’’ That 

view of our border communities, and my district, is based on some very old and very 

dangerous stereotypes and it is just not true. But those are the kinds of views motiVerDate Mar 15 2010 08:49 Jun 25, 2018 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 J:\115TH CONGRESS\OVERSIGHT & INVESTIGATIONS\02-15-18\28683.TXT DARLEN
11 

vating this campaign to destroy the quality of life in border communities with this 

wall. 

Does the Border Patrol need even more power than the unprecedented power they 

already have? 

The clear answer is no. 

Mr. WESTERMAN. The gentleman’s time has expired. 

I want to thank our witnesses for being here today, and I will 

now take a moment to give a brief introduction of our witnesses. 

Mr. Andrew Arthur is a Resident Fellow in Law and Policy at 

the Center for Immigration Studies and a former immigration 

judge; Mr. Dan Bell is President of the ZZ Cattle Corporation; Mr. 

Scott Nicol is the volunteer Co-Chair of the Sierra Club 

Borderlands Campaign; and Mr. Brandon Judd is President of the 

National Border Patrol Council. 

Let me remind the witnesses that under our Committee Rules, 

you must limit your oral statements to 5 minutes, but your entire 

statement will appear in the hearing record. Our microphones are 

not automatic. When you start your testimony, please push the 

button, it will turn green. After 4 minutes, the yellow light will appear on the timer. And when the red light comes on, I will ask that 

you please complete your statement. I will also allow the entire 

panel to testify before questioning the witnesses. 

The Chair now recognizes Mr. Arthur to testify for 5 minutes. 

STATEMENT OF THE HONORABLE ANDREW R. ARTHUR, 

RESIDENT FELLOW IN LAW AND POLICY, CENTER FOR 

IMMIGRATION STUDIES, WASHINGTON, DC 

Mr. ARTHUR. Thank you, Mr. Chairman. 

Mr. Chairman, Ranking Member McEachin, and members of the 

Subcommittee on Oversight and Investigations, I appreciate you inviting me here today to discuss these important issues. 

Over the past few years, I have had the opportunity to experience the natural beauty of our national parks. Recently, however, 

I have had the misfortune of seeing the degradation caused by 

illegal cross-border traffic. Paths worn through natural landscapes 

and abandoned rafts, garbage, and human waste were all evidence 

of illegal entry. 

While cross-border traffic has declined in my 25 years in the field 

of immigration, the numbers are still staggering. In Fiscal Year 

2017, Border Patrol apprehended 303,916 individuals along the 

southwest border. Not all of this traffic consisted of aliens coming 

to the United States for work. Last year, for example, Border 

Patrol seized 9,346 pounds of cocaine, 953 pounds of heroin, 10,328 

pounds of methamphetamines, and 181 pounds of fentanyl. On my 

calculations, this is enough fentanyl alone to kill 36 million 

Americans. 

In the last fiscal year, Border Patrol agents apprehended 8,531 

criminal aliens. They also arrested 228 aliens associated with MS13, a gang so organized and dangerous that in 2012 the Obama 

Treasury Department designated them a transnational criminal 

organization. 

As my written testimony reveals, suspected terrorists are also believed to have attempted illegal entry along our southern border. 

12 

Border Patrol agents must confront well-organized, well-funded, 

and extremely violent operatives in their attempts to secure the 

southwest border. 

Transnational criminal organizations like the Gulf Cartel, Los 

Zetas, and the Sinaloa Cartel, founded by the notorious Joaquin ‘‘El 

Chapo’’ Guzman, control territory and smuggling routes along the 

border, and profit from the illegal cross-border traffic of aliens, 

drugs, and other contraband. The drugs that they deliver flow into 

every corner of our country, ruining lives, destroying families, and 

undermining our communities and our way of life. 

But the consequences are worse for Mexico. In fact, last year was 

that country’s most violent on record. Because of these groups, corruption there is rampant and civil society reels. And as the 

Mexican Government has targeted these groups, the situation has 

gotten worse because rival cliques war over smuggling routes and 

territory, with innocent civilians caught in the crossfire. 

But you don’t need to believe me about the violent nature of 

these criminals. Last week’s Wall Street Journal quoted an opponent of the President’s wall proposal whose family owns land near 

the Santa Ana Wildlife Refuge in Alamo, Texas. She is concerned 

the wall would divide her property, resulting in, ‘‘drug smugglers 

attacking farmworkers in hopes of getting the code needed to open 

an access gate.’’ She understands the danger. 

However, our agents have been hamstrung in responding to 

these threats. As you know, Border Patrol must obtain permission 

from Federal land management agencies before its agents can 

maintain roads and install critical infrastructure such as surveillance equipment when operating on Federal lands. The agency’s access to portions of those lands along the southwest border has also 

been limited by land management laws. 

Given the threat that illegal cross-border traffickers pose to our 

communities and our national security, and the well-funded and organized nature of the organizations that profit from that traffic, 

this is unacceptable. We all agree that protecting the American 

people must be the first duty of government. 

Border Patrol must be able to move freely across Federal lands 

when necessary and have unconstrained access to a tactical infrastructure and maintain needed access roads. This will not only 

make our country safer and more secure, it will also prevent the 

environmental degradation caused by such traffic and protect the 

land management employees who work to preserve that land. 

Thank you, and I look forward to your questions. 

[The prepared statement of Mr. Arthur follows:] 

PREPARED STATEMENT OF ANDREW R. ARTHUR, RESIDENT FELLOW IN LAW AND

POLICY, CENTER FOR IMMIGRATION STUDIES

Mr. Chairman, Ranking Member McEachin, and Members of the Subcommittee 

on Oversight and Investigations, I want to thank you for inviting me here today to 

discuss this important issue. 

13 

1 About the Office, United States Department of Justice, Executive Office for Immigration 

Review, available at: https://www.justice.gov/eoir/about-office. 2Legal authority for the Border Patrol, U.S. Customs and Border Protection, available at: https://help.cbp.gov/app/answers/detail/a_id/1084/∼/legal-authority-for-the-border-patrol. 3 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept 

and Obstruct Terrorism, Pub. L. 107–56 (2001), available at: https://www.Congress.gov/bill/ 

107th-congress/house-bill/3162/text. 4 Homeland Security Act of 2002, Pub. L. 107–296 (2002), available at: https:// 

www.Congress.gov/bill/107th-congress/house-bill/5005. 5 REAL ID Act of 2005, Pub. L. 109–13, div. B (2005), available at: https://www.Congress.gov/ 

bill/109th-congress/house-bill/1268. 6See Andrew R. Arthur, Fraud in the ‘‘Credible Fear’’ Process, Threats to the Integrity of the 

Asylum System, Center for Immigration Studies (Apr. 19, 2017), available at: https:// 

www.cis.org/Report/Fraud-Credible-Fear-Process. 

MY BACKGROUND

For more than 24 years, I served in various roles in the Federal Government in 

the field of immigration. 

I began as a law clerk in the Executive Office for Immigration Review (EOIR), 

the agency in the Department of Justice (DOJ) with jurisdiction over removal proceedings and adjudications relating to sections 274A (employer sanctions), 274B 

(unfair immigration-related employment practices, and 274C (civil document fraud) 

of the Immigration and Nationality Act (INA).1

From there, I started as a trial attorney at the former Immigration and 

Naturalization Service (INS), working my way up to Associate General Counsel. For 

a period of time, I served as the Acting Chief of the National Security Law Division 

(NSLD), the unit within the INS General Counsel’s Office with jurisdiction over terrorists, espionage risks, and persecutors. 

During my term at the INS, the agency had jurisdiction over the Border Patrol, 

then and now the Federal Government component with primary jurisdiction for enforcing the immigration laws of the United States between the ports of entry.2 As 

Associate General Counsel in the INS Enforcement Division, and later in the NSLD, 

I regularly handled issues relating to border security, and the need for barriers 

along the southwest border. 

I left the INS 6 weeks before September 11, 2001, because I was concerned about 

vulnerabilities in our immigration enforcement system that could be exploited by 

aliens who posed a risk to our national security. Believing that those vulnerabilities 

could only properly be addressed by Congress, I took a position as Oversight 

Counsel for Immigration at the House Judiciary Committee. 

I was in this position when the Committee, responding to the attacks of 

September 11, drafted the ‘‘Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism,’’ or USA PATRIOT Act.3

In addition, I played a role in the drafting of the Homeland Security Act of 2002,4

which established the Department of Homeland Security in more or less its present 

form. 

I later transitioned to the position of legislative counsel for the House Judiciary 

Committee’s Subcommittee on Immigration, Border Security, and Claims. Most importantly for purposes of today’s hearing, it was in this position that I served as 

one of the primary staff drafters of the REAL ID Act of 2005,5 which I will discuss 

further below. 

I left Congress to take the bench as an Immigration Judge at the York Immigration Court in York, Pennsylvania, where I served for more than 8 years. At the 

beginning of my service in this position, the vast majority of aliens who appeared 

before me had been apprehended in the interior of the United States. During my 

last 3 years on the bench, however, I began to see more and more aliens who have 

been apprehended after entering the United States illegally along the southwest 

border and claiming credible fear.6

In January 2015, I left the bench to serve as the Staff Director at the House 

Oversight and Government Reform Committee’s National Security Subcommittee, a 

position that I held until September 2016. In this role, I had oversight jurisdiction 

of the activities of U.S. Customs and Border Protection (CBP), among other 

agencies. 

Since April 2017, I have worked as the Resident Fellow in Law and Policy at the 

Center for Immigration Studies, a nonpartisan, nonprofit research organization here 

in Washington, DC. In this role, I toured the border in the Rio Grande Valley 

(RGV), between McAllen and Roma, Texas, with the Texas Department of Public 

Safety and the Border Patrol, as well as the border in and near Del Rio, Texas with 

the Val Verde County Sheriff in August 2017. 

14 

7Legal authority for the Border Patrol, U.S. Customs and Border Protection, available at: https://help.cbp.gov/app/answers/detail/a_id/1084/∼/legal-authority-for-the-border-patrol. 8 Carla N. Argueta, Border Security: Immigration Enforcement Between Ports of Entry 

(R42138), Cong Research Serv. (Apr. 19, 2016), available at: https://fas.org/sgp/crs/homesec/ 

R42138.pdf. 9Section 287(a) of the INA (2018), available at: https://www.uscis.gov/ilink/docView/SLB/ 

HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9505.html. 10Section 287(a)(2) of the INA (2018), available at: https://www.uscis.gov/ilink/docView/SLB/ 

HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9505.html. 11Section 287(g) of the INA (2018), available at: https://www.uscis.gov/ilink/docView/SLB/ 

HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9505.html. 12 8 C.F.R. § 287.1(a)(2) (2018), available at: https://www.law.cornell.edu/cfr/text/8/287.1. 13Section 212(a)(6)(A)(i) of the INA (2018), available at: https://www.uscis.gov/ilink/docView/ 

SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html. 

BORDER SECURITY

As I noted above, the Border Patrol is responsible for securing the border between 

the ports of entry. As CBP describes Border Patrol’s enforcement efforts, the agency: 

[U]se[s] a layered approach that includes patrolling the border itself, 

(including the use of electronic surveillance devices), patrolling nearby areas 

and neighborhoods where illegal immigrants can quickly fade into the general population, and conducting checkpoints—both stationary and 

temporary.7

The Congressional Research Service (CRS) has described the foundations of this 

border-control strategy: 

Since the 1990s, migration control at the border has been guided by a strategy of ‘‘prevention through deterrence’’—the idea that the concentration of 

personnel, infrastructure, and surveillance technology along heavily trafficked regions of the border will discourage unauthorized migrants from 

attempting to enter the United States. Since 2005, CBP has attempted to discourage repeat unauthorized migrant entries and disrupt migrant smuggling 

networks by imposing tougher penalties against certain unauthorized 

migrants, a set of policies eventually described as ‘‘enforcement with consequences.’’ Most people apprehended at the southwest border are now subject to ‘‘high consequence’’ enforcement outcomes.8

Before I discuss this strategy and its implementation further, I want to list a few 

of the laws that Border Patrol enforces, and more importantly, its authority to 

enforce those laws. 

POWERS AND AUTHORITY OF THE BORDER PATROL

Section 287(a)(1) of the INA 9 grants Border Patrol agents the authority ‘‘to 

interrogate any alien person believed to be an alien as to his right to be or to remain in the United States’’ without warrant. 

Section 287(a)(2) of the INA 10 provides a Border Patrol Agent the power, without 

warrant: 

[T]o arrest any alien who in his presence or view is entering or attempting 

to enter the United States in violation of any law or regulation made in 

pursuance of law regulating the admission, exclusion, expulsion, or removal 

of aliens, or to arrest any alien in the United States, if he has reason to 

believe that the alien so arrested is in the United States in violation of any 

such law or regulation and is likely to escape before a warrant can be 

obtained for his arrest . . . 

Section 287(a)(3) of the INA 11 provides authority to Border Patrol Agents ‘‘within 

a reasonable distance from any external boundary the United States, to board and 

search for aliens on any vessel within the territorial waters of the United States 

and any railway car, aircraft, conveyance, or vehicle’’ without a warrant. The implementing regulation, 8 C.F.R. § 287.1(a)(2),12 defines ‘‘reasonable distance’’ as ‘‘100 

air miles from any external boundary of the United States.’’ This provides Border 

Patrol the authority for checkpoints away from the border. 

Border Patrol agents can bring charges against border violators on several 

different grounds, both civil and criminal. 

Under section 212(a)(6)(A)(i) of the INA,13 ‘‘[a]n alien present in the United States 

without being admitted or paroled, or who arrives in the United States at any time 

or place other than as designated by the Attorney General is inadmissible,’’ meaning 

15 

14Section 212(a)(6)(E)(i) of the INA (2018), available at: https://www.uscis.gov/ilink/docView/ 

AFM/HTML/AFM/0-0-0-1/0-0-0-17138/0-0-0-17444.html#0-0-0-1785. 15 Id. 16Section 275(a) of the INA (2018), available at: https://www.uscis.gov/ilink/docView/SLB/ 

HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9025.html. 17Section 274(a) of the INA (2018), available at: https://www.uscis.gov/ilink/docView/SLB/ 

HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-8381.html. 18 Criminal Resource Manual, Offices of the United States Attorneys (undated), available at: https://www.justice.gov/usam/criminal-resource-manual-1907-title-8-usc-1324a-offenses. 19 Id. 20Section 287(a)(5) of the INA (2018), available at: https://www.uscis.gov/ilink/docView/SLB/ 

HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9505.html. 21 Carla N. Argueta, Border Security: Immigration Enforcement Between Ports of Entry 

(R42138), Cong Research Serv. (Apr. 19, 2016), at 14, available at: https://fas.org/sgp/crs/ 

homesec/R42138.pdf. 

that such alien is subject to (or more properly, ‘‘amenable to’’) removal. Removal 

under this ground is a civil penalty. 

Under section 212(a)(6)(E)(i) of the INA,14 alien smugglers are also amenable to 

removal. Specifically, that provision states: ‘‘Any alien, who at any time knowingly 

has encouraged, induced, assisted, abetted, or aided any other alien to enter or to 

try to enter the United States in violation of the law, is inadmissible.’’ 15

In addition, there are several criminal penalties for illegal entry. For example, 

section 275(a) of the INA 16 states: 

Any alien who (1) enters or attempts to enter the United States at any time 

or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or 

obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first 

commission of any such offense, be fined under title 18, United States Code, 

or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, United States Code, or 

imprisoned not more than 2 years, or both. 

Section 274(a) of the INA contains criminal penalties for alien smuggling.17

Specifically, subparagraphs 274(a)(1)(i) through (v) of the INA ‘‘prohibit[] alien 

smuggling, domestic transportation of unauthorized aliens, concealing or harboring 

unauthorized aliens, encouraging or inducing unauthorized aliens to enter the 

United States, and engaging in a conspiracy or aiding and abetting any of the preceding acts.’’ 18 Paragraph 274(a)(2) of the INA, on the other hand, ‘‘prohibits bringing or attempting to bring unauthorized aliens to the United States in any manner 

whatsoever, even at a designated port of entry.’’ 19

Border Patrol is not limited in its responsibilities to the enforcement of laws relating to aliens. Under section 287(a)(5) of the INA,20 Border Patrol agents have the 

authority without warrant to make arrests: 

(A) for any offense against the United States, if the offense is committed in 

the officer’s or employee’s presence, or 

(B) for any felony cognizable under the laws of the United States, if the 

officer or employee has reasonable grounds to believe that the person to be 

arrested has committed or is committing such a felony, if the officer or employee is performing duties relating to the enforcement of the immigration 

laws at the time of the arrest and if there is a likelihood of the person escaping before a warrant can be obtained for his arrest. 

This authority allows Border Patrol agents to apprehend and charge smugglers 

of drugs and other contraband into the United States. 

THE ROLE OF FENCING AND TACTICAL INFRASTRUCTURE IN BORDER ENFORCEMENT

Fencing and tactical infrastructure plays a significant, but often misunderstood, 

role in the Border Patrol’s enforcement strategy. CRS has detailed various forms of 

tactical infrastructure along the border: 

Border tactical infrastructure includes roads, lighting, pedestrian fencing, 

and vehicle barriers. Tactical infrastructure is intended to impede illicit 

cross-border activity, disrupt and restrict smuggling operations, and establish a substantial probability of apprehending terrorists seeking entry into 

the United States.21

(Internal footnote omitted). 

16 

22 Brian Naylor, Trump’s Plan To Hire 15,000 Border Patrol And ICE Agents Won’t Be Easy, 

NPR (Feb. 23, 2017), available at: https://www.npr.org/2017/02/23/516712980/trumps-plan-tohire-15-000-border-patrol-and-ice-agents-wont-be-easy-to-fulfill. 23 Janice Cheryl Beaver, U.S. International Borders: Brief Facts, Cong. Research Serv. 

(updated Nov. 9, 2006), available at: https://fas.org/sgp/crs/misc/RS21729.pdf. 24See, e.g., Paul Sperry, This town is proof that Trump’s wall can work, N.Y. Post (Jan. 13, 

2018), available at: https://nypost.com/2018/01/13/we-already-have-a-border-wall-and-it-works/. 25See Michael John Garcia, Barriers Along the U.S. Borders: Key Authorities and Requirements (R43975), Cong. Research Serv. (Jan. 27, 2017), at 1, available at: https://fas.org/sgp/crs/ 

homesec/R43975.pdf. 26 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), P.L. 104–208, div. 

C, § 102(c) (1996), available at: https://www.gpo.gov/fdsys/pkg/PLAW-104publ208/pdf/PLAW104publ208.pdf. 27 REAL ID Act of 2005, Pub. L. 109–13, div. B, § 102 (2005), available at: https:// 

www.Congress.gov/bill/109th-congress/house-bill/1268. 28Secure Fence Act of 2006, Pub. L. 109–367, § 3 (2006), available at: https:// 

www.Congress.gov/bill/109th-congress/house-bill/6061. 29 Consolidated Appropriations Act of 2008, Pub. L. 110–161, div. E, tit. V, § 564(a) (2007), 

available at: https://www.Congress.gov/bill/110th-congress/house-bill/2764. 30Michael John Garcia, Barriers Along the U.S. Borders: Key Authorities and Requirements 

(R43975), Cong. Research Serv. (Jan. 27, 2017), at 1, available at: https://fas.org/sgp/crs/ 

homesec/R43975.pdf. 31 8 U.S.C. § 1103 note, available at: https://www.law.cornell.edu/uscode/text/8/1103. 

Put in layman’s terms, pedestrian fencing, roads, lighting, sensors, and vehicle 

barriers each play two different, but complementary, roles in border enforcement: 

First, they serve as a deterrent to attempted entry. For example, pedestrian fencing increases the difficulty and cost of such entry, and by eliminating easy access 

across the border, reduces the likelihood of attempted entry. Illegal entrants and 

smugglers follow the same rules of incentives and economics that most actors follow, 

and amend their actions accordingly. Similarly, lighting inhibits the ability of those 

caught crossing the border illegally to do so under cover of darkness, making it more 

likely that they will be caught, and less likely that they will be enter the United 

States to, for example, work. 

Second, such infrastructure creates an impediment to illicit crossing. Even if an 

individual attempts illegal entry by going around barriers or over fencing, those impediments will slow entry, providing Border Patrol more time to deploy agents to 

the incursion point. In the same way, sensors and cameras notify Border Patrol 

about illegal entries, again facilitating timely deployment. This enables CBP to direct its limited resources effectively and efficiently to those areas where active incursions are occurring. 

And, by any measure, those resources are limited. As of February 2017, CBP had 

fewer than 20,000 Border Patrol Agents,22 below its authorization of 21,000. While 

this number might seem high, the U.S.-Mexican border is approximately 1,933 miles 

long, and the U.S.-Canadian border spans some 3,987 miles, not including the 

Canadian border with Alaska.23 Tactical infrastructure is therefore critical to the 

Border Patrol’s mission. 

AUTHORITY FOR BORDER BARRIERS

There has been significant discussion, both during the election campaign and especially since President Trump’s inauguration, about the need for additional border 

barriers (including more walls, pedestrian fencing, and vehicle barriers) along the 

southwest border.24

There are, essentially, four different statutes that authorize the Department of 

Homeland Security (DHS) to erect barriers along the border: 25 the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),26 the REAL ID Act 

of 2005,27 the Secure Fence Act of 2006,28 and the Consolidated Appropriations Act, 

2008.29 These legislative provisions are consolidated 30 at 8 U.S.C. § 1103 note.31

A review of those laws emphasizes the need for broader waiver authority to ensure that there is sufficient fencing and tactical infrastructure to support the Border 

Patrol in its mission. 

At the time that I, as a staffer on the House Judiciary Committee, was reviewing 

the INA for potential national security vulnerabilities in the 109th Congress, section 

102(a) of IIRIRA directed the Attorney General to ‘‘to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) 

in the vicinity of the United States border to deter illegal crossings in areas of high 

17 

32 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), P.L. 104–208, div. 

C, § 102(a) (1996), available at: https://www.gpo.gov/fdsys/pkg/PLAW-104publ208/pdf/PLAW104publ208.pdf. 33 Id. at 102(c). 34 Id. at 102(d). 35 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), P.L. 104–208, div. 

C, § 102(c) (1996), available at: https://www.gpo.gov/fdsys/pkg/PLAW-104publ208/pdf/PLAW104publ208.pdf. 

illegal entry into the United States.’’ 32 Section 102(c) of that act waived ‘‘provisions 

of the Endangered Species Act of 1973 and the National Environmental Policy Act 

of 1969 . . . to the extent the Attorney General determines necessary to ensure expeditious construction of the barriers and roads under this section.’’ 33 Section 102(d) 

gave the Attorney General the authority to acquire land ‘‘essential to control and 

guard the boundaries and borders of the United States against any violation of’’ the 

INA, including through condemnation.34

Section 102 of the REAL ID Act amended section 102(c) of IIRIRA 35 to grant the 

Secretary of Homeland Security authority to waive all legal requirements the 

Secretary determined to be necessary to ensure expeditious construction of barriers 

and roads in the vicinity of the United States border. 

As the Conference Report for that legislation stated: 

Section 102 of [IIRIRA] provides for construction and strengthening of 

barriers along U.S. land borders and specifically provides for 14 miles of 

barriers and roads along the border near San Diego, beginning at the 

Pacific Ocean and extending eastward. It provides for a waiver of the 

Endangered Species Act of 1973 (ESA) and the National Environmental 

Policy Act of 1969 (NEPA) to the extent the Attorney General determines is 

necessary to ensure expeditious construction of barriers and roads. Despite 

the existing waiver provision, construction of the San Diego area barriers 

has been delayed due to a dispute involving other laws. The California 

Coastal Commission has prevented completion of the San Diego border security infrastructure because it alleges that plans to complete it are inconsistent with the California Coastal Management Program, a state program 

approved pursuant to the Federal Coastal Zone Management Act (CZMA)— 

notwithstanding the fact that the San Diego border security infrastructure 

was designed to avoid and/or minimize adverse environmental impacts, and 

the Bureau of Customs and Border Protection (CBP) of the Department of 

Homeland Security testified before the California Coastal Commission that 

the plans for completion were consistent with the Coastal Management 

Program to the maximum extent practicable without sacrificing the effectiveness of the border security infrastructure. Continued delays caused by litigation have demonstrated the need for additional waiver authority with respect 

to other laws that might impede the expeditious construction of security infrastructure along the border, such as the Coastal Zone Management Act. 

Current Law. Section 102(c) of IIRIRA provided for a waiver of the ESA and 

NEPA to the extent the Attorney General determines is necessary to ensure 

expeditious construction of barriers and roads. 

Section 102 of the conference report would amend the current provision to 

require the Secretary of Homeland Security to waive all laws that he or she 

determines, in his or her sole discretion, are necessary to ensure the expeditious construction of the border barriers. 

Additionally, it would prohibit judicial review of a waiver decision or action 

by the Secretary and bar judicially ordered compensatory, declaratory, or injunctive, equitable, or any other relief or other remedy for damage alleged 

to result from any such decision or action. As discussed above, current statutes and the Reorganization Plan for the Department of Homeland Security 

have not amended and clarified references to executive authority throughout 

the INA. Accordingly, the provision would have replaced the reference in current law to the Attorney General by a reference to the Secretary of Homeland 

Security. 

The Conferees have revised the House provision in the following respects. 

First, the revised provision authorizes but does not require the Secretary of 

DHS to waive any legal requirements that he or she, in his or her sole discretion, determines are necessary to ensure expeditious construction of border 

security infrastructure. Second, the provision clarifies the intent of the conference report by substituting a reference to waiver of ‘‘all legal 

18 

36 H.R. Rep. 109–72, div. B, tit. I, § 102 (2005), available at: https: / / www.Congress.gov/ 

congressional-report/109th-congress/house-report/72/1?overview=closed. 37Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119, 129–30 (D.D.C. 2007), cert. denied, 

554 U.S. 918 (2008). 38Secure Fence Act of 2006, Pub. L. 109–367, § 3 (2006), available at: https:// 

www.Congress.gov/bill/109th-congress/house-bill/6061. 39 Consolidated Appropriations Act, 2008, Pub. L. 110–161, div. E, tit. V, § 564(a) (2007), 

available at: https://www.Congress.gov/bill/110th-congress/house-bill/2764. 40 Id. 

requirements’’ for the prior reference to waiver of ‘‘all laws’’, clarifying 

Congress’ intent that the Secretary’s discretionary waiver authority extends 

to any local, state or federal statute, regulation, or administrative order that 

could impede expeditious construction of border security infrastructure. 

Third, the conferees provided that any such waiver would become effective 

upon publication in the Federal Register, thereby ensuring appropriate public notice of such determinations. Finally, the Conferees have provided federal judicial review for claims alleging that the actions or decisions of the 

Secretary violate the United States Constitution. The Conferees have further 

provided that such claims must be filed within sixty days of the Secretary’s 

action or decision, and that interlocutory or final judgments, decrees, or orders of federal district courts on such claims may be reviewed only upon petition for a writ of certiorari to the Supreme Court of the United States. The 

Conferees’ intent is to ensure that judicial review of actions or decisions of 

the Secretary not delay the expeditious construction of border security infrastructure, thereby defeating the purpose of the Secretary’s waiver.36

In Defenders of Wildlife v. Chertoff,37 a judge of the U.S. District Court for the 

District of Columbia rejected a claim that the waiver authority in section 102 of the 

REAL ID Act was unconstitutional, a decision the Supreme Court declined to 

review. 

In section 3 of the Secure Fence Act of 2008,38 section 102(b)(1) of IIRIRA was 

amended to identify specific areas where fencing should be installed, and to specify 

the type of fencing that should be used. 

While section 102(b)(1) of IIRIRA was amended again in the Consolidated 

Appropriations Act, 2008,39 those amendments were significantly more legally substantive, and restrictive, than the amendments in the Secure Fence Act of 2008. 

Most importantly for purposes of today’s hearing, the Consolidated Appropriations 

Act, 2008 completely rewrote subparagraphs (A), (B), and (C) in that provision; as 

amended, subparagraph (C) states: 

Consultation.— 

‘‘(i) In general.— 

In carrying out this section, the Secretary of Homeland Security shall consult with the Secretary of the Interior, the Secretary of Agriculture, States, 

local governments, Indian tribes, and property owners in the United States 

to minimize the impact on the environment, culture, commerce, and quality 

of life for the communities and residents located near the sites at which such 

fencing is to be constructed. 

‘‘(ii) Savings provision.—Nothing in this subparagraph may be construed 

to— 

‘‘(I) create or negate any right of action for a State, local government, 

or other person or entity affected by this subsection; or 

‘‘(II) affect the eminent domain laws of the United States or of any 

State.40

Notwithstanding the caveats in those two subclauses, or the fact that the Consolidated Appropriations Act, 2008, left the waiver authority in section 102(c) of IIRIRA 

as amended by section 102 of the REAL ID Act in place, a plaintiff could easily assert that this consultation provision requires the Secretary of Homeland Security to 

alter or abandon a fencing project based on environmental impacts identified by ‘‘the 

Secretary of the Interior, the Secretary of Agriculture, States, local governments, 

Indian tribes, and property owners.’’ Clear waiver authority is necessary to overcome such assertions, and ensure that the Secretary of Homeland Security is able 

to erect barriers to protect against, and/or mitigate the effect of, cross-border 

incursions. 

19 

41Southwest Border Migration FY2017, U.S. Customs and Border Protection (updated Dec. 15, 

2017), available at: https://www.cbp.gov/newsroom/stats/sw-border-migration-fy2017. 42 CBP Enforcement Statistics FY2018, U.S. Customs and Border Protection (undated), 

available at: https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics. 43 Id. 44FAQ’s-Fentanyl and Fentanyl-Related Substances, U.S. Drug Enforcement Administration 

(undated), available at: https://www.dea.gov/druginfo/fentanyl-faq.shtml. 45Fentanyl: What Is a Lethal Dosage?, Oxford Treatment Center (undated), available at: https://www.oxfordtreatment.com/fentanyl/lethal-dose/. 46 CBP Enforcement Statistics FY2018, U.S. Customs and Border Protection (undated), 

available at: https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics. 47 CBP Border Security Report, FY 2017, U.S. Customs and Border Protection (Dec. 5, 2017), 

at 3, available at: https://www.cbp.gov/sites/default/files/assets/documents/2017-Dec/cbp-bordersecurity-report-fy2017.pdf. 48Treasury Sanctions Latin American Criminal Organization, U.S. Dep’t of the Treasury (Oct. 

11, 2012), available at: https://www.treasury.gov/press-center/press-releases/Pages/tg1733.aspx. 49 Id. 50Remarks by Attorney General Jeff Sessions at Meeting of the Attorney General’s Organized 

Crime Council and OCDETF Executive Committee, U.S. Dep’t of Justice (April 18, 2017), 

available at: https://www.justice.gov/opa/speech/remarks-attorney-general-jeff-sessions-meetingattorney-general-s-organized-crime-council. 

DANGERS POSED BY ILLEGAL CROSS-BORDER INCURSIONS

The enforcement mission of the Border Patrol is vital to protecting our national 

security and the safety and health of the American people. 

According to the latest statistics from CBP,41 in FY 2017, 303,916 aliens were apprehended between the ports of entry along the southwest border, which was down 

from 408,870 in FY 2016 (but which itself was up from FY 2015, when 331,333 

apprehensions occurred). Despite the downward trend in the past year, the number 

of aliens attempting illegal entry is still significant. 

In addition to aliens, Border Patrol Agents apprehended a significant quantity of 

narcotics in FY 2017. According to CBP,42 last year, agents seized 9,346 pounds of 

cocaine, 953 pounds of heroin, 861,231 pounds of marijuana, 10,328 pounds of 

methamphetamines, and 181 pounds of fentanyl. 

In fact, in just the first 3 months of FY 2018,43 Border Patrol seized 161 additional pounds of fentanyl, a drug the Drug Enforcement Administration states 44 is 

‘‘30–50 times more potent than heroin and 50–100 times more potent than morphine.’’ Oxford Treatment Center identifies 45 2 milligrams as a lethal dose of 

fentanyl, meaning that 161 pounds of the drug would be sufficient to kill 36,514,156 

people. 

Additionally, CBP reports 46 that in FY 2017, Border Patrol Agents encountered 

8,531 criminal aliens, of whom 2,675 had outstanding wants or warrants. Border 

Patrol Agents also arrested ‘‘536 illegal aliens who are affiliated with a gang,’’ 

including 228 of whom were affiliated with MS-13.47

In October 2012, the Department of Treasury designated MS-13 as a 

‘‘transnational criminal organization’’ (TCO).48 At that time, Treasury explained: 

MS-13 consists of at least 30,000 members in a range of countries, including 

El Salvador, Guatemala, Honduras, and Mexico, and is one of the most dangerous and rapidly expanding criminal gangs in the world today. MS-13 is 

active within the United States, with at least 8,000 members operating in 

more than 40 states and the District of Columbia. MS-13’s criminal nature 

can be seen in one of its mottos, ‘‘Mata, roba, viola, controla’’ (‘‘Kill, steal, 

rape, control’’). Domestically, the group is involved in multiple crimes including murder, racketeering, drug trafficking, sex trafficking and human 

trafficking including prostitution. The group frequently carries out violent 

attacks on opposing gang members, often injuring innocent bystanders. MS13 members have been responsible for numerous killings within the United 

States. 

Local MS-13 cliques take direction from the group’s foreign leadership for 

strategic decisions involving moves into new territories and efforts to recruit 

new members. Money generated by local MS-13 cliques in the United States 

is consolidated and funneled to the group’s leadership in El Salvador.49

Attorney General Jeff Sessions, in prepared remarks 50 on April 18, 2017, described how the gang has exploited loopholes in the U.S. immigration system, and 

how it operates in the United States today: 

Because of an open border and years of lax immigration enforcement, MS13 has been sending both recruiters and members to regenerate gangs that 

20 

51Warren Richey, Are terrorists crossing the U.S.-Mexico border? Excerpts from the case file, 

Christian Science Monitor (Jan. 15, 2017), available at: https://www.csmonitor.com/USA/Justice/ 

2017/0115/Are-terrorists-crossing-the-US-Mexico-border-Excerpts-from-the-case-file. 52 Id. 53Who are Somalia’s al-Shabab?, BBC News (Dec. 22, 2017), available at: http://www.bbc.com/ 

news/world-africa-15336689. 

previously had been decimated, and smuggling members across the border 

as unaccompanied minors. They are not content to simply ruin the lives of 

adults—MS-13 recruits in our high schools, our middle schools and even our 

elementary schools. 

Just a few days ago, law enforcement believes that members of MS-13 murdered four young men and dumped their bodies in a park on Long Island. 

Last month, it was two teenage girls [in] Brentwood, New York who were 

killed with machetes and baseball bats. A few weeks ago, the FBI added an 

MS-13 member to their Ten Most Wanted Fugitives List for a suspected brutal murder with a baseball bat and screwdriver—all purportedly to earn his 

MS-13 tattoo. Violence is an initiation rite. They’ve killed mothers alongside 

their children and vice versa. They have gang raped and trafficked girls as 

young as 12 years old. 

Plainly, stopping these criminals from entering the United States is a lawenforcement priority, one that is critical to protecting the public and the many communities in which the gang operates. 

Individuals with ties to terrorism have also attempted to enter the United States 

across the U.S.-Mexico border, as the Christian Science Monitor reported in January 

2017.51 Most of the individuals identified in that article were apprehended after 

they attempted to enter illegally through the ports of entry. One case that bears 

particular notice as it pertains to illegal incursions, however, involves Anthony 

Joseph Tracy. As the paper reported: 52

Noor Services was a travel business in Nairobi, Kenya, that offered a very 

specific kind of assistance to its clients. The company specialized in helping 

would-be travelers from Somalia obtain visas to Cuba. 

They weren’t making the trip to the Caribbean island to enjoy the hospitality 

of Havana, its food and music, or the nearby beaches. Instead, according to 

federal prosecutors, Cuba was seen as a doorway to the U.S.-Mexico border 

and an illicit crossing into America. 

The business was set up by Anthony Joseph Tracy, a U.S. citizen and 

Muslim convert, who told federal agents that he had helped 272 Somalis 

travel illegally to the U.S., according to court documents. 

Federal prosecutors were concerned about more than just illegal immigration. During a polygraph examination, Tracy admitted to investigators that 

he’d been approached by members of the Somali terror group Al Shabab.53

He passed that portion of the polygraph. But he failed the part when asked 

whether he helped members of the terror group travel to the U.S., according 

to court documents. 

A prosecutor complained to the judge in Tracy’s case that investigators had 

‘‘no idea who these individuals are that he assisted.’’ She suggested Tracy’s 

clients might pose a risk to national security. 

Tracy pleaded guilty to a single charge of conspiring to induce non-citizens 

to enter the U.S. without legal authorization. 

Under the conspiracy outlined in court, Tracy helped his clients produce 

fraudulent documents to support their visa applications. He also paid bribes 

to a clerk at the Cuban Embassy in Kenya who issued the visas. 

Clients flew from Kenya to Dubai to Moscow to Cuba. From there they would 

fly to Belize and then travel to Mexico to make their way across the U.S. 

border. 

During a search, investigators found an email from a prospective client asking for Tracy’s help, according to court documents. Tracy sent a reply that 

reads in part: ‘‘I helped a lot of Somalis and most are good but there are 

some who are bad and I leave them to ALLAH . . ..’’ 

Tracy told investigators he’d made about $90,000 during his nine months 

in business. 

21 

54 Id. 55 Id. 56 Id. 57 Id. 58Todd Bensman, The Ultra-Marathoners of Human Smuggling: How to Combat the Dark 

Networks that Can Move Terrorists over American Land Borders, Homeland Security Affairs 

(May 2016), available at: https://www.hsaj.org/articles/10568. 59 Id. 60 Human smuggling equals grave danger, big money, U.S. Immigration and Customs 

Enforcement (updated Jan. 16, 2018), available at: https://www.ice.gov/features/humansmuggling-danger. 61 Id. 

Another intriguing reference in that article 54 pertains to Adnan El Shukrijumah: 

After Al Qaeda’s Sept. 11, 2001 attacks on the World Trade Center and 

Pentagon, Adnan El Shukrijumah spent more than a decade at the top of 

the FBI’s most wanted list. The U.S. Government offered a $5 million reward for information leading to his capture. 

He was believed to have been hand-picked by Osama Bin Laden and 9/11 

mastermind Khalid Sheikh Mohammed to plan and launch follow-up 

attacks against the U.S. and other Western countries. Federal agents were 

determined to find him before he could carry out a mass-casualty operation. 

Mr. Shukrijumah, a green-card holder from Saudi Arabia who had lived for 

many years in Brooklyn and south Florida, disappeared shortly before the 

9/11 attacks. 

According to the Christian Science Monitor,55 a formerly classified document revealed that in 2004, ‘‘officials at the U.S. Consulate in Ciudad Juarez received a tip 

about ‘suspect Arab extremists who have been smuggled through Mexico to the 

United States/Mexico border.’ ’’ Those ‘‘extremists’’ were purportedly in hiding in 

Agua Prieta, Sonora, Mexico, which is adjacent to Douglas, Arizona.56 The paper reports 57 that the aforementioned document stated that ‘‘one of the three men is 

‘likely Adnan G. El Shukrijumah, alleged to be a Saudi Arabian terrorist cell leader 

thought to be in Mexico.’ ’’ 

Concerns about such illegal incursions by potential terrorists over the southwest 

border were the focus of ‘‘The Ultra-Marathoners of Human Smuggling: How to 

Combat the Dark Networks that Can Move Terrorists over American Land 

Borders,’’ 58 a scholarly examination of transnational smuggling by Todd Bensman 

that appeared in Homeland Security Affairs in May 2016. As Bensman writes: 

Even before 9/11, . . . human smuggling networks were regularly transporting migrants—and potentially, terrorists among them—from some 35–40 

Islamic ‘‘countries of special interest’’ in the Middle East, South Asia and 

North Africa. The asylum-seeking people they moved would come to be 

known as ‘‘Other than Mexicans, (OTMs)’’ and then, even more specifically 

as American strategy developed around them, the OTM subcategory ‘‘special 

interest aliens (SIAs).’’ 59

It is beyond cavil that the Border Patrol’s mission of disrupting the cross-border 

transit of aliens, terrorists, drugs, and other contraband plays an essential role in 

keeping the American people safe. Unfortunately, in performing that mission, the 

Border Patrol faces well-organized, violent, and sophisticated foes. 

CRIMINAL SMUGGLING ORGANIZATIONS

Drug trafficking organizations (DTOs), other TCOs, and various subsidiary groups 

are actively involved in illicit cross-border traffic. With respect to alien smuggling, 

U.S. Immigration and Customs Enforcement (ICE) has reported: ‘‘Moving human 

beings as cargo pays in the billions of dollars for transnational criminal smuggling 

organizations.’’ 60 ICE continues: 

Human smuggling operates as a contract business; an understanding exists 

among transnational criminal organizations, smugglers and individuals 

seeking transport that trying to cross the border independently is not an option. Smugglers escort the illegal aliens through the desert, across the border, to stash houses and onto their final destinations within the interior of 

the U.S. A portion of the smuggling fees paid to the transnational criminal 

organizations helps fuel their other criminal enterprises.61

22 

62Mexico Drug War Fast Facts, CNN (Dec. 20, 2017), available at: https://www.cnn.com/2013/ 

09/02/world/americas/mexico-drug-war-fast-facts/index.html. 63 Christopher Woody, The State Department is telling U.S. citizens ’do not travel’ to 5 states 

in Mexico, Business Insider (Jan. 11, 2018), available at: http://www.businessinsider.com/mexicostates-no-go-zones-for-americans-us-state-department-2018-1. 64Mexico Travel Advisory, U.S. Dep’t of State (Jan. 10, 2018), available at: https:// 

travel.state.gov/content/travel/en/traveladvisories/traveladvisories/mexico-travel-advisory.html. 65Kate Linthicum, Why the State Department Said these 5 Mexican states Are Unsafe for 

Travel, Los Angeles Times (Jan. 11, 2018), available at: http://www.latimes.com/world/la-fgmexico-states-warning-20180111-htmlstory.html. 66 Id. 67 Id. 68 Id. 69 Id. 70Mexico Travel Advisory, U.S. Dep’t of State (Jan. 10, 2018), available at: https:// 

travel.state.gov/content/travel/en/traveladvisories/traveladvisories/mexico-travel-advisory.html. 

These groups have caused tremendous damage in Mexico, both in terms of human 

life and societal disruption. 

As CNN explained in December 2017: 62 ‘‘The Mexican government has been fighting a war with drug traffickers since December 2006. At the same time, drug cartels 

have fought each other for control of territory.’’ In fact, Business Insider recently 

reported that ‘‘2017 was Mexico’s most violent year on record, with 26,573 homicide 

victims during the first 11 months of the year.’’ 63

To illustrate this point, the United States Department of State (DOS) latest travel 

advisory for Mexico 64 advises United States citizens not to travel to five Mexican 

states (Colima, Guerrero, Michoaca ́n, Sinaloa, and Tamaulipas). The latter state, 

Tamaulipas, borders the United States along the RGV, while the other four are in 

the interior of Mexico. 

The Los Angeles Times explains 65 that cartel activity is largely responsible for the 

threats in those five states. In Colima: 

Rival cartels have been battling for control of Manzanillo’s port, a primary 

point of entry for drugs from South and Central America as well as for precursor chemicals coming from Asia that are used to manufacture synthetic 

drugs.66

In Guerrero: 

The cartel that once dominated Acapulco and the rest of the state fractured 

years ago, leaving smaller criminal groups to violently vie for power. There 

are more than a dozen gangs fighting in Acapulco, which is now Mexico’s 

homicide capital. Up in the Tierra Caliente, a region that encompasses parts 

of northern Guerrero and neighboring [Michoaca ́n] state, gangs have been 

battling for control of poppy production. Poppy grown in Guerrero and other 

states has made Mexico the No. 1 exporter of heroin to the U.S.67

In Michoaca ́n: 

Violence erupted . . . starting in the mid-2000s, as cartels battling for control of methamphetamine production expanded to extortion and kidnapping. 

The government’s failure to bring order spawned a citizen vigilante movement, and to this day, masked citizen police roam the state. In some towns, 

they have taken over local governments.68

As for Tamaulipas, that state: 

[H]as been engulfed in violence between factions of the Gulf cartel and the 

Zetas criminal group. While the homicide rate there is not as high as in 

other states, extortion and kidnappings are rampant. About one-fourth of all 

kidnappings in Mexico occur in the state.69

With respect to Tamaulipas, DOS warns: 70

Do not travel due to crime. Violent crime, such as murder, armed robbery, 

carjacking, kidnapping, extortion, and sexual assault, is common. Gang activity, including gun battles, is widespread. Armed criminal groups target 

public and private passenger buses traveling through Tamaulipas, often 

taking passengers hostage and demanding ransom payments. Local law enforcement has limited capability to respond to violence in many parts of the 

state. 

As Business Insider explained in July 2017: ‘‘Tamaulipas in Mexico’s northeast 

corner is valuable territory [for criminal groups] because of its proximity to the Gulf 

23 

71 Christopher Woody, Turmoil in Mexico’s criminal underworld is intensifying the violence in 

a valuable border territory, Business Insider (Jun. 29, 2017), available at: http:// 

www.businessinsider.com / cartel-gang-violence-in-reynosa-nuevo-laredo-matamoros-mexicoborder-2017-6. 72 June S. Beittel, Mexico: Organized Crime and Drug Trafficking Organizations (R41576), Cong. Research Serv. (Apr. 25, 2017), at 16, available at: https://fas.org/sgp/crs/row/R41576.pdf. 73 Id.; see also Christopher Woody, Turmoil in Mexico’s criminal underworld is intensifying the 

violence in a valuable border territory, Business Insider (Jun. 29, 2017), available at: http:// 

www.businessinsider.com / cartel-gang-violence-in-reynosa-nuevo-laredo-matamoros-mexicoborder-2017-6. 74 Christopher Woody, Turmoil in Mexico’s criminal underworld is intensifying the violence in 

a valuable border territory, Business Insider (Jun. 29, 2017), available at: http: / / 

www.businessinsider.com / cartel-gang-violence-in-reynosa-nuevo-laredo-matamoros-mexicoborder-2017-6. 75Kate Linthicum, Why the State Department Said these 5 Mexican states Are Unsafe for 

Travel, Los Angeles Times (Jan. 11, 2018), available at: http://www.latimes.com/world/la-fgmexico-states-warning-20180111-htmlstory.html. 76See Christopher Woody, The ‘godfather’ of Mexico’s cartels has been sentenced for killing of 

a DEA agent, Business Insider (Aug. 30, 2017), available at: http://www.businessinsider.com/ 

miguel-angel-felix-gallardo-godfather-of-mexicos-cartel-sentenced-2017-8. 77Patrick Radden Keefe, Cocaine Incorporated, New York Times (Jun. 15, 2012), available at: http://www.nytimes.com/2012/06/17/magazine/how-a-mexican-drug-cartel-makes-its-billions.html. 78Kate Linthicum, Why the State Department Said these 5 Mexican states Are Unsafe for 

Travel, Los Angeles Times (Jan. 11, 2018), available at: http://www.latimes.com/world/la-fgmexico-states-warning-20180111-htmlstory.html. 79 Nuevo Leo ́n, Border Legislative Conference (undated), available at: http:// 

www.borderlegislators.org/nuevo_leon_eng.htm. 80Membership, Border Legislative Conference (undated), available at: http:// 

www.borderlegislators.org/membership_eng.htm. 81Mexico Travel Advisory, U.S. Dep’t of State (Jan. 10, 2018), available at: https:// 

travel.state.gov/content/travel/en/traveladvisories/traveladvisories/mexico-travel-advisory.html. 

of Mexico and the U.S. border, highways that cross it, and the energy infrastructure 

in the area.’’ 71

CRS reports that the Gulf Cartel, ‘‘a transnational smuggling operation with 

agents in Central and South America,’’ is ‘‘[b]ased in the border city of Matamoros, 

Tamaulipas, with operations in other Mexican states on the Gulf side of Mexico,’’ 

although that cartel has ‘‘reportedly has split into several competing gangs.’’ 72 It 

is now also allegedly facing competition from Los Zetas cartel, ‘‘its former enforcement wing’’ in northeast Mexico.73

According to Business Insider: 74

Those two cartels, as well as rivals with designs on controlling the territory, 

have been responsible for much of the violence in Tamaulipas over the last 

20 years. The border cities of Reynosa, Nuevo Laredo, and Matamoros appear to be straining under a new wave of bloodshed driven by inter and 

intra-cartel feuding. 

The pervasive influence of criminal groups has undermined police in the 

state, and those groups are believed to have won political influence through 

intimidation and inducement. 

As for Sinaloa, that state ‘‘was . . . the birthplace of Joaquin ‘El Chapo’ Guzman, 

a poor kid who sold oranges in the street before becoming Mexico’s most infamous 

drug cartel leader.’’ 75 In a 2012 article, the New York Times reported that Guzman 

formed the Sinaloa cartel following the 1989 arrest of Miguel Angel Felix 

Gallardo,76 ‘‘El Padrino,’’ a one-time policeman and the head of the former 

Guadalajara cartel.77

As the Los Angeles Times describes 78 the situation in Sinaloa today: 

After Guzman’s arrest and extradition to the U.S. last year, his Sinaloa 

cartel fragmented into warring factions. Those factions are fighting each 

other as well as well as gangsters aligned with the ascendant Jalisco New 

Generation cartel, which has quickly taken control of wide swaths of the 

country with its brutal tactics. 

Five other Mexican states border the United States: Baja California, Sonora, 

Chihuahua, Coahuila, and (for nine miles) 79 Nuevo Leon.80

With respect to Baja California, DOS warns: 81

Criminal activity and violence, including homicide, remain an issue 

throughout the state. According to the Baja California State Secretariat for 

Public Security, the state experienced an increase in homicide rates compared to the same period in 2016. While most of these homicides appeared 

24 

82 Id. 83 June S. Beittel, Mexico: Organized Crime and Drug Trafficking Organizations (R41576), Cong. Research Serv. (Apr. 25, 2017), at 10, available at: https://fas.org/sgp/crs/row/R41576.pdf. 84Mexico Travel Advisory, U.S. Dep’t of State (Jan. 10, 2018), available at: https:// 

travel.state.gov/content/travel/en/traveladvisories/traveladvisories/mexico-travel-advisory.html. 85 June S. Beittel, Mexico: Organized Crime and Drug Trafficking Organizations (R41576), Cong. Research Serv. (Apr. 25, 2017), at 13, available at: https://fas.org/sgp/crs/row/R41576.pdf. 86Mexico Travel Advisory, U.S. Dep’t of State (Jan. 10, 2018), available at: https:// 

travel.state.gov/content/travel/en/traveladvisories/traveladvisories/mexico-travel-advisory.html. 87Sorcha Pollak, Shafted: Mexico’s miners and its drug cartels, Campaigners want Ireland to 

help with their country’s human rights crisis, Irish Times (Jan 28, 2017), available at: https:// 

www.irishtimes.com/news/world/shafted-mexico-s-miners-and-its-drug-cartels-1.2949396. 88 Id. 89Mexico Travel Advisory, U.S. Dep’t of State (Jan. 10, 2018), available at: https:// 

travel.state.gov/content/travel/en/traveladvisories/traveladvisories/mexico-travel-advisory.html. 90 June S. Beittel, Mexico: Organized Crime and Drug Trafficking Organizations (R41576), 

Cong. Research Serv. (Apr. 25, 2017), available at: https://fas.org/sgp/crs/row/R41576.pdf. 91 Id. at 7. 

to be targeted, criminal organization assassinations, turf battles between 

criminal groups have resulted in violent crime in areas frequented by U.S. 

citizens. Bystanders have been injured or killed in shooting incidents. 

As for Chihuahua, the State Department reports: 82 ‘‘Violent crime and gang 

activity are widespread.’’ 

With respect to those two states, CRS explains: 

The well-established Sinaloa [Drug Trafficking Organization (DTO)] with 

roots in western Mexico, has fought brutally for increased control of routes 

through the border states of Chihuahua and Baja California, with the goal 

of remaining the dominant DTO in the country. Sinaloa has a more decentralized structure of loosely linked smaller organizations, which has been 

susceptible to conflict when units break away. Nevertheless, the decentralized 

structure has enabled it to be quite adaptable in the highly competitive and 

unstable environment that now prevails.83

According to DOS: 84 ‘‘Sonora is a key location utilized by the international drug 

trade and human trafficking networks.’’ CRS reports that the Sinaloa DTO ‘‘controls 

crime’’ in that state.85

In Coahuila, DOS reports: ‘‘Violent crime is widespread. Local law enforcement 

has limited capability to prevent and respond to crime, particularly in the northern 

part of the state.’’ 86 The Irish Times reported 87 in January 2017: ‘‘Since the appearance of the Zetas cartel in Coahuila in 2009, people in the northern state live each 

day fearing for their safety.’’ The paper quotes ‘‘human rights defender Cristina 

Auerbach,’’ who states that the Zetas: 

[A]re a very disciplined operation and run an elaborate communication network far superior to any of the local authorities . . .. We are living in a time 

of absolute terror. We are living in a world not only of drug trafficking, but 

also of money laundering, human trafficking, child trafficking, the trafficking of women. These cartels have complete control over our state, and as 

a result we live in absolute terror.88

Finally, DOS states: 89 ‘‘Violent crime and gang activity are common in parts of 

Nuevo Leon state.’’ 

An April 2017 CRS report 90 contains an in-depth analysis of the various cartels 

and other DTOs that are responsible for the majority of the criminal violence in 

Mexico, as well as their tactics and the vicious nature of their activities. Of 

particular note is the following passage: 

Police corruption has been so extensive that law enforcement officials corrupted or infiltrated by the DTOs and other criminal groups sometimes 

carry out their violent assignments. Purges of Mexico’s municipal, state, and 

federal police have not contained the problem. 

The relationship of Mexico’s drug traffickers to the government and to one 

another is now a rapidly evolving picture, and any current snapshot (such 

as the one provided in this report) must be continually adjusted.91

In addition, that report notes: 

An[] emerging factor has been the criminal diversification of the DTOs into 

poly crime organizations. In addition to trafficking illegal narcotics, they 

25 

92 Id. at 25. 93Rio Grande Carrizo Cane Eradication Program, Texas State The Soil & Water Conservation 

Board (undated), available at: https://www.tsswcb.texas.gov/programs/rio-grande-carrizo-caneeradication-program. 

have branched into other profitable crimes, such as kidnapping, assassination for hire, auto theft, controlling prostitution, extortion, moneylaundering, software piracy, resource theft, and human smuggling. The 

surge in violence due to inter- and intra-cartel conflict over lucrative drug 

smuggling routes has been accompanied by an increase in kidnapping for 

ransom and other crimes.92

In short, the Border Patrol must respond to the efforts of violent, well-financed, 

ever-evolving criminal organizations on a daily basis in performing its mission. 

Given these facts, ‘‘border security’’ cannot easily be separated from ‘‘domestic 

security,’’ ‘‘homeland security,’’ or ‘‘national security.’’ 

CARRIZO CANE ERADICATION

Not all of the challenges that Border Patrol faces in performing its duties are the 

work of man, however. Along the Rio Grande River in the RGV and in the populated 

sections of Del Rio, Texas, I saw the impact of carrizo cane on the agency’s ability 

to prevent cross-border incursions. 

As the Texas State The Soil & Water Conservation Board (S&WCB) website 93

describes the problem: 

Large dense stands of non-native carrizo cane (Arundo donax) now occupy 

the banks and floodplains of the Rio Grande, thwarting law enforcement efforts along the international border, impeding and concealing the detection 

of criminal activity, restricting law enforcement officers’ access to riverbanks, 

and impairing the ecological function and biodiversity of the Rio Grande. 

Arundo is an exceptionally fast growing plant, able to grow about 4 inches 

per day and reach a mature height of over 25 feet in about 12 months. These 

stands of invasive riparian weeds present considerable obstacles for the protection of the international border by law enforcement and agricultural inspectors, by both significantly reducing visibility within enforcement areas 

and by providing favorable habitat for agriculturally damaging cattle ticks. 

Carrizo cane is considered one of the greatest threats to the health of riparian ecosystems in the southwestern United States, with great negative impact to biodiversity and ecological processes. Arundo does not provide any 

food sources or nesting habitats for native wildlife. Carrizo cane is linked 

to sediment accumulation, channel constriction, and increased flooding 

frequency threatening the riparian ecosystem of the Rio Grande. 

Carrizo cane is a noxious brush species that consumes precious water resources to a degree that is detrimental to water conservation. As a result of 

this weed’s high evapotranspiration capacity, infestations threaten water 

supplies for agriculture and municipal drinking water uses in south Texas. 

Because of the thickness of the cane, and its height, those crossing the border illegally along the river are able to quickly enter stands of the plant, and remain or 

proceed undetected. During my August trip to the border, I saw numerous paths 

through the cane that had been worn by illegal entrants, a number of which were 

marked by the presence of deflated rafts that crossers had used to ford the river: 

26 

94Tex. Agric. Code § 201.0225 (2018), available at: http://codes.findlaw.com/tx/agriculture-code/ 

agric-sect-201-0225.html. 95 Julian Aguilar, New Effort to Wipe Out Carrizo Cane Reignites Environmental Debate, 

Texas Tribune (Apr. 5, 2016), available at: https://www.texastribune.org/2016/04/05/new-carrizoeradication-effort-reignites-old-debat/. 

While Texas law 94 requires SWCB to ‘‘develop and implement a program to eradicate Carrizo cane along the Rio Grande River,’’ the Texas Tribune reported in 2016: 

[F]earing that herbicides used for the project will pollute the river, the primary water source for several border communities, an environmental group 

is planning a full-fledged effort to halt the plan and is recruiting local 

governments to join its side.95

The results of that effort are not clear. 

Eradicating this invasive plant would significantly facilitate control of the border 

in the areas where it proliferates, according to both Federal and state lawenforcement officials to whom I spoke. That plant also presents an officer-safety 

issue, as it conceals the presence of often-dangerous (and armed) smugglers and 

traffickers. 

27 

96See Carol Hardy Vincent, Laura A. Hanson, and Carla N. Argueta, Federal Land 

Ownership: Overview and Data (R42346), Cong. Research Serv. (Mar. 3, 2017), at 24, available at: https://fas.org/sgp/crs/misc/R42346.pdf. 

97 Id. 98 Id. 99 Id. 100 Id. 101Southwest Border: More Timely Border Patrol Access and Training Could Improve Security 

Operations and Natural Resource Protection on Federal Lands (GAO–11–38), Gov’t Accountability Office (Oct. 19, 2010), available at: https://www.gao.gov/products/GAO-11-38. 102 Id. 

BORDER SECURITY ON FEDERAL LANDS

The interplay between the Border Patrol and other Federal agencies (with 

primarily environmental missions) is a significant issue because there are large 

numbers of Federal lands within close proximity to the southwest border that are 

managed by those other agencies.96 CRS, for example, has reported: 

Precise estimates of the acreage [within 50 and 100 miles from the U.S.- 

Mexican border] are not readily available because the agencies do not distinguish their lands by distance from the border. One estimate provided by the 

agencies to the House Committee on Natural Resources reported that within 

100 miles of the border, there were about 26.7 million acres of federal lands. 

Nearly half of this land (12.3 million acres) was managed by [the Bureau 

of Land Management (BLM)], and the other federal lands were managed by 

[the Department of Defense (DOD)] (5.8 million acres), [Forest Service (FS)] 

(3.8 million acres), [National Park Service (NPS)] (2.4 million acres), [Fish 

and Wildlife Service (FWS)] (2.2 million acres), and other federal agencies 

(0.2 million acres).97

(Footnote omitted). 

As CRS notes, while Border Patrol ‘‘is the lead agency for border security between 

ports of entry,’’ at least 40 percent ‘‘of the southwestern border abuts Federal and 

tribal lands overseen by the FS and four [Department of the Interior (DOI)] agencies 

(including the Bureau of Indian Affairs) that also have law enforcement responsibilities.’’ 98 It admits: ‘‘Differences in missions and jurisdictional complexity among 

these agencies have been identified as potentially hindering border control.’’ 99

It reported: 

To facilitate control efforts, the three departments—DHS, the Department of 

Agriculture (for the FS), and DOI—signed memoranda of understanding 

(MOUs) on border security. These MOUs govern information sharing, budgeting, and operational planning; [Border Patrol] access to federal lands; and 

interoperable radio communications, among other topics.100

The tension among these agencies in executing their individual missions on 

Federal lands was the subject of an October 2010 report 101 issued by the 

Government Accountability Office (GAO). In that report, GAO explained: 

When operating on federal lands, Border Patrol has responsibilities under 

several federal land management laws, including the National Environmental Policy Act, National Historic Preservation Act, Wilderness Act, and 

Endangered Species Act. Border Patrol must obtain permission or a permit 

from federal land management agencies before its agents can maintain 

roads and install surveillance equipment on these lands. Because land management agencies are also responsible for ensuring compliance with land 

management laws, Border Patrol generally coordinates its responsibilities 

under these laws with land management agencies through national and 

local interagency agreements. The most comprehensive agreement is a 2006 

memorandum of understanding intended to guide Border Patrol activities on 

federal lands. 

GAO found,102 however: 

Border Patrol’s access to portions of some federal lands along the southwestern border has been limited because of certain land management laws, 

according to patrol agents-in-charge for 17 of the 26 stations, resulting in 

delays and restrictions in agents’ patrolling and monitoring these lands. 

Specifically, 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 managers 

28 

103Memorandum of Understanding Among U.S. Department of Homeland Security and U.S. 

Department of the Interior and U.S. Department of Agriculture Regarding Cooperative National 

Security and Counterterrorism Efforts on Federal Lands along the United States’ Borders (Mar. 

2006), available at: https://cis.org/sites/cis.org/files/articles/2010/mou.pdf. 104 Id., at 4. 105 Id. 106 Janice Kephart, My Great-Grandfather, President Obama, and Preserving Our Federal 

Lands, Center for Immigration Studies (Mar. 3, 2011), available at: https://www.cis.org/Kephart/ 

My-GreatGrandfather-President-Obama-and-Preserving-Our-Federal-Lands. 

to conduct required environmental and historic property assessments. The 

2006 memorandum of understanding [2006 MOU] directs the agencies to cooperate with one another to complete, in an expedited manner, all compliance required by applicable federal laws, but such cooperation has not 

always occurred. For example, Border Patrol requested permission to move 

surveillance equipment to an area, but by the time the land manager conducted a historic property assessment and granted permission—more than 

4 months after the initial request—illegal traffic had shifted to other areas. 

Despite the access delays and restrictions, 22 of the 26 agents-in-charge 

reported that the overall security status of their jurisdiction is not affected 

by land management laws. 

As an aside, I would note that ‘‘overall security status’’ is a weak benchmark by 

which to measure the effect of such ‘‘access delays and restrictions,’’ given that it 

encompasses all operations at the Border Patrol facility in question, and not individual operations. That said, the fact that these ‘‘access delays and restrictions’’ 

affected the overall security status at four facilities is significant, and any delays 

affect Border Patrol’s operations, as is apparent from the cite above. 

The 2006 MOU 103 is problematic in a number of ways, but the most fundamental 

issue with that MOU is that it fails to recognize the exigencies of Border Patrol 

operations, and in essence requires Border Patrol to seek DOI and/or USDA permission before undertaking its most critical missions. Simply put, it is a September 10 

document for a post-September 11 world, and one that fails to recognize, comprehend, or appreciate the sophistication and agility of the criminal entities 

operating along the southwest border. 

Take for example paragraph IV.A.5 in that MOU.104 It states: 

The Parties will cooperate with each other to identify methods, routes, and 

locations for CBP-[Border Patrol (BP)] operations that will minimize impacts to natural, cultural, and wilderness resources resulting from CBP-BP 

operations while facilitating needed CBP-BP access . . .105

By definition, such ‘‘cooperation’’ gives DOI and USDA significant say in the manner in which Border Patrol executes its mission. As a practical matter, however, it 

gives those departments, which do not otherwise have a significant national-security 

mission, veritable veto power over at least some of the ‘‘methods, routes, and locations’’ of the operations of the law-enforcement component of the United States 

government with expertise in border security, the Border Patrol. 

No one disputes the fact that ‘‘impacts to natural, cultural, and wilderness resources’’ should be minimized to the greatest extent possible. What the 2006 MOU 

does, however, is to put the ‘‘environmental cart’’ in front of the ‘‘national-security 

horse.’’ 

Congress should reassess the respective roles of the Border Patrol and the each 

of the land management agencies, to ensure that critical law-enforcement activities 

are not impeded in any way. Given the sophistication and funding of the entities 

with which it must contend, Border Patrol must be able to act swiftly, without restrictions, to respond to any criminal or national security threat that it faces. Any 

delay will allow those criminal organizations to exploit critical vulnerabilities along 

the border, a fact that can have significant safety implications for the United States, 

as shown above. 

ENVIRONMENTAL DAMAGE CAUSED BY CROSS-BORDER INCURSIONS

The large number of cross-border traffickers who have attempted to enter the 

United States illegally have caused harm to our most vulnerable, and culturally and 

environmentally valuable, Federal lands. 

Janice L. Kephart, a former National Security Fellow at the Center for Immigration Studies, described some of these issues in a March 2011 post for the Center.106

To assess the environmental impact of illegal immigration on Federal lands, Ms. 

29 

107 Id. 108 Id. 109 Effects of Illegal Border Activities on the Federal Land Management Agencies Before the H. 

Comm. on Appropriations, Subcomm. on Interior, Environment and Related Agencies, 109th 

Cong. (2006) (statement of Tina Terrell, Forest Supervisor of the Cleveland National Forest, 

U.S. Dept of Agriculture, Forest Service), available at: https: / / www.doi.gov / ocl / illegalimmigration. 

Kephart filed a Freedom of Information Act (FOIA) seeking documentation related 

to this issue.107 As she described the results: 

Some of the material I received from the request included internal memos 

discussing the problem within the Department of Interior, as well as 

PowerPoint presentations created by Park Service personnel from the Tohono 

O’odham Indian Reservation, Organ Pipe National Monument, and Buenos 

Aires Wildlife Refuge showing that nearly all national park destruction on 

these central Arizona border areas was due to illegal alien traffic. The threat 

from illegal activity is so bad, in fact, that for years the Park Service has 

completely closed these parks due to the ‘‘unacceptable level of risk to the 

public and staff’’ from the ‘‘high level of illegal activity going on’’ in these 

parks.108

In June 15, 2006 testimony 109 before the House Committee on Appropriations, 

Subcommittee on Interior, Environment and Related Agencies, Tina Terrell, thenForest Supervisor of the Cleveland National Forest, described the impacts of illegal 

crossers on that forest: 

The Cleveland National Forest in California continues to experience crossborder violators creating unwanted trails and leaving large numbers of 

abandoned campfires and large amounts of trash on the Forest as they travel through the area . . .. Since 1997, the Cleveland National Forest has 

staffed a border fire prevention and resource protection crew to remedy impacts created by cross-border violators. Their primary job is to find and extinguish illegal campfires before they expand and become wildfires. Each 

year these fire prevention efforts have helped reduce resource damage and 

wildfire costs. Despite these efforts, in 2005, over 370 acres of the National 

Forest burned due to illegal campfires and over 4 tons of trash was removed 

from the National Forest, much of which can be attributed to illegal immigration. 

She testified, however, that the effects of illegal border traffic on the Coronado 

National Forest had been much greater than on the Cleveland National Forest. She 

noted that: 

The natural and cultural resources on the Coronado have regional, national 

and international importance. There are 12 separate and uniquely distinct 

mountain ranges, eight designated wilderness areas, containing approximately 203 threatened, endangered, or sensitive species. These resources are 

suffering significant adverse impacts due to illegal border traffic. 

With respect to impacts to natural resources from such traffic in that forest, she 

asserted: 

Activities by cross-border violators sometimes adversely affect the natural resources we protect and manage, and interfere with authorized management 

activities and uses. Repeated damage to a livestock exclosure fence next to 

the border established to protect an endangered fish species, the Sonoran 

Chub, has been so extensive that the exclosure fence has had to be completely 

rebuilt several times and has often been rendered ineffective in restricting 

livestock use. This fence damage has allowed the destruction of endangered 

species habitat to continue and has resulted in very expensive, unplanned 

repairs. 

Literally hundreds of miles of unauthorized trails and roads have been created on the Forest by illegal foot and vehicle traffic. This proliferation of 

trails and roads damages and destroys cactus and other sensitive vegetation; 

disrupts or prohibits revegetation; disturbs wildlife, their security and travel 

routes; causes soil compaction and erosion; impacts stream bank stability; 

and puts the public at risk by creating confusion as to which routes are 

lawful and safe. 

Perhaps one of the most well[-]known of the impacts of illegal immigration 

is the litter left behind, which we note, tends to accumulate in higher 

30 

110Stephen Clark, Memo Reveals Refuge Officers’ Struggle to Secure Lands Along Southwest 

Border, Fox News (July 9, 2010), available at: http: / / www.foxnews.com / politics/2010/07/09/ 

federal-park-rangers-struggle-secure-public-land-southwest-border.html. 111 Arizona Border Trash, Ariz. Dep’t of Environmental Quality (undated), available at: https:// 

www.azbordertrash.gov/about.html. 112 Id. 113 Id. 114 Id. 115 Id. 116 Id. 117 Id. 

amounts than found in other urban National Forests. Additionally, cleaning 

up the litter is difficult due to the lack of facilities and remoteness of the 

border areas. The presence of trash also detracts from scenic qualities and 

from the visitors’ experience. Water sources near this contamination are often 

so fouled by pollution that wildlife can no longer use them. Where trash is 

left behind in designated wilderness or other areas far from roads, expensive 

and difficult removal by the use of horses or mules is required. Adding to 

the fire risk and agency expense are the hundreds of vehicles, most stolen, 

abandoned by smugglers and other cross-border violators or seized during 

law enforcement operations. 

Similarly, in July 2009, Fox News reported 110 on a 2007 internal Federal 

Government memo that detailed the effect of illegal alien crossings on DOI activities 

at National Parks in the Southwest: 

According to the memo, which was obtained by FOXNews.com, the Department of Interior warns that refuge officers are spending 100 percent of their 

time at Cabeza Prieta National Wildlife preserve and between 90 to 95 

percent of their time in Buenos Aires National Wildlife Refuge and Leslie 

Canyon dealing with border-related activities. It also notes that the Cabeza 

Prieta preserve is spending 60 to 70 percent of its budget on border-related 

activities. 

This includes everything from apprehending illegal immigrants until Border 

Patrol can arrive, to cleaning up the mountains of trash—about 500 tons a 

year—that they leave behind. More than 1,300 miles of illegal trails had 

been created on the refuge by illegal border-crossers, the memo says. 

Nor are such impacts a thing of the past. The Arizona Department of 

Environmental Quality manages the ‘‘Arizona Border Trash’’ website.111 It defines 

‘‘border trash’’ as: 

[I]tems discarded by persons involved in illegal immigration such as plastic 

containers, clothing, backpacks, foodstuffs, vehicles, bicycles and paper. It 

can also consist of human waste and sometimes medical products.112

That website explains: 113

The collection and disposal of waste in remote areas along Arizona’s 370- 

mile border with Mexico poses difficult challenges. An estimated more than 

2,000 tons of trash is discarded annually in Arizona’s borderlands. A variety 

of federal and state government entities, Native American tribes and private 

landowners are affected by the problem, and addressing it requires extensive 

coordination. 

The environmental impact caused by illegal immigration, and the trash left 

behind, is increasingly being found in areas that are more fragile and 

remote. 

The website notes 114 that border trash ‘‘has been shown to affect human health, 

the environment and economic wellbeing.’’ Included among the specific impacts listed 115 are: ‘‘[s]trewn trash and piles;’’ ‘‘[i]llegal trails and paths;’’ ‘‘[e]rosion and 

watershed degradation;’’ ‘‘[d]amaged infrastructure and property;’’ ‘‘[l]oss of vegetation and wildlife;’’ and ‘‘[c]ampfires and escaped fires.’’ 

According to the website,116 each of the approximately 64,900 border crossers apprehended in the Tucson Sector in FY 2016 (and others who were not apprehended) 

‘‘leave approximately six to eight pounds of trash in the desert during his or her 

journey.’’ Disposing of this trash is costly for the communities affected: ‘‘Landfill fees 

range from $37 to $49 per ton in Southern Arizona. These fees do not include costs 

for materials, equipment, labor and transportation for the collection and transfer of 

the trash to the landfill.’’ 117

31 

118Southern Arizona Project 2016 Border Report, U.S. Dep’t of the Interior, Bureau of Land 

Management (undated), available at: https://www.blm.gov/sites/blm.gov/files/documents/files/ 

SAP%202016%20%28508%20Final%29.pdf. 119 Id. 120 Id. 121Kris Eggle, U.S. Nat’l Park Service (updated May 24, 2016), available at: https:// 

www.nps.gov/orpi/learn/historyculture/kris.htm. 

Similar points are made in the Southern Arizona Project 2016 Border Report from 

BLM.118 That report states: 

While smuggling has been a long term concern along on the border, by the 

late 1990s, illegal transnational activity was prompting safety concerns for 

public land users in Arizona, as well as causing adverse effects on the health 

of public lands themselves. Initially, most impacts were concentrated near 

major ports of entry such as Yuma and Nogales. However, as port enforcement increased, smugglers moved to more remote, isolated areas, including 

BLM-managed public lands. As law enforcement patrols increased in these 

more remote areas, smugglers began traveling off-road in order to evade detection. These travelers leave more than tracks. The traffic creates new, adhoc roads and trails, damages native vegetation and disturbs wildlife. Drug 

and human smuggling also generates tons of garbage, including discarded 

personal items, bicycles, tires and abandoned vehicles. Millions of pounds of 

trash and waste along with damaged roads, structures, and fences have impacted Wilderness areas, riparian habitat, and other back-country natural 

resources.119

The danger to the environment from these activities is clear from that report: 

The Sonoran Desert boasts the highest biological variety of any North 

American desert. These two National Monuments exemplify this tremendous 

diversity. The striking vegetation protected by these monuments—saguaro 

cacti, palo verde, ironwood and mesquite trees, wildflowers—shape the iconic 

images of the American Southwest. The Monuments also protect a record of 

human habitation dating back more than 10,000 years. These delicate sites 

are easily disturbed by off-road travel. 

Border-related impacts are also felt on other significant public lands near 

the international border such as the San Pedro Riparian National Conservation Area and Las Cienegas National Conservation Area. Both areas contain 

intact examples of river and stream habitats that are rare in the Southwest. 

These riparian areas can also serve as expedient routes for illegal activity.120

Cutting the rate of illicit cross-border traffic is critical to protecting these endangered artifacts and environmental treasures. Facilitating the law-enforcement activities of the Border Patrol will deter this flow of traffic, and ensure that these Federal 

lands are maintained in their natural state. Any law or regulation that impedes the 

Border Patrol’s work, but no matter how well-meaning, will thus adversely affect 

the environment in both the short and long run. 

DANGERS TO NATIONAL PARK SERVICE EMPLOYEES

Not all of the dangers posed by cross-border incursions involve the environment, 

however. I would be remiss if I were not to mention at this point the sacrifice of 

Park Ranger Kris Eggle. As the National Park Service describes 121 his life: 

Kristopher William Eggle was a Law Enforcement Park Ranger from 

Cadillac, Michigan. He was an Eagle Scout, a National Honor Society 

Student, and valedictorian of his graduating class at Cadillac High School 

in 1991. After high school, he attended University of Michigan and earned 

a degree in wildlife biology. Kris approached his entire life with a kind of 

contagious enthusiasm that could only inspire everyone who knew him. He 

constantly gave of himself without ever asking for anything in return. 

***** 

In the wake of 9/11, Kris protected his country by intercepting thousands 

of pounds of illegal drugs, and guarding a 30-mile stretch of the nation’s 

southern boundary. 

Kris Eggle was shot and killed in the line of duty at Organ Pipe Cactus 

National Monument, on August 9, 2002 while pursuing members of a drug 

32 

122 Craig Welch, Park rangers’ jobs increasingly dangerous, Seattle Times (Jan. 2, 2012), available at: https://www.seattletimes.com/seattle-news/park-rangers-jobs-increasingly-dangerous/. 123 Id. 124 Id. 125Securing our Border on Federal Lands: Problem Overview, House Comm. on Natural 

Resources (undated), available at: https://naturalresources.house.gov/info/borderoverview.htm. 126 Border Security: Consequences of Federal Lands Management Along the U.S. Border to 

Rural Communities and National Security: Hearing Before the House Comm. on Natural 

Resources, Subcomm. on Oversight and Investigations, 114th Cong. (2016) (statement of Jon 

Andrew, Interagency Borderlands Coordinator, Dep’t of the Interior), available at: https:// 

www.doi.gov/ocl/border-security-1. 

cartel who fled into the United States after committing a string of murders 

in Mexico. 

He was 28 years old. 

The dangers facing Park Rangers generally was highlighted by a January 2012 

article 122 in the Seattle Times, captioned ‘‘Park rangers’ jobs increasingly 

dangerous.’’ 

While that article discussed the risks faced by Park Rangers nationwide, it specifically quoted 123 then-NPS chief spokesman David Barna, who stated: ‘‘In 

California and along the border between us and Mexico, we still fight drug cartels 

growing marijuana.. . .’’ It also noted: 124 ‘‘The job, like many in Federal law enforcement, has become more complex in recent years. With 22 parks along international borders, there are more homeland-security issues.’’ 

Moreover, as this committee’s own website 125 states: ‘‘National parks and forests 

have become some of the most dangerous and violent areas along the border where 

shootings, robberies, rapes, murders, kidnappings and car-jackings frequently 

occur.’’ 

The dangers that Park Rangers and the public face from cross-border criminals 

must be recognized, and eliminated. 

THE ROLE OF BORDER PATROL ENFORCEMENT IN PROTECTING THE ENVIRONMENT AND

LAND-MANAGEMENT AGENCY EMPLOYEES

It is plain from the foregoing that stemming the flow of illegal border crossings 

serves to protect the environment, to prevent the adverse ecological impacts of crossborder traffic, and protect land-management agency employees. 

The work of the Border Patrol is key to protecting the environment, as the testimony 126 of Jon Andrew, the Interagency Borderlands Coordinator for DOI before 

this Subcommittee in April 2016 made clear: 

The deployment of CBP personnel, equipment and infrastructure along the 

southwest border has led to significant improvements in border security. 

These improvements have both enhanced the security of our nation, and lead 

to overall healthier conditions on Interior lands along the border. Many of 

the natural and cultural resources under Interior’s responsibility have been 

adversely affected by illegal activities due to accumulations of trash, establishment of illegal roads and trails, and overall degradation of the environment. By deploying personnel, equipment, and infrastructure, CBP 

operations have reduced cross-border illegal activity and the environmental 

impacts of this illegal activity in a number of areas. 

Examples of infrastructure put in place by CBP include: Remote Video 

Surveillance System towers, Integrated Fixed Towers, rescue beacons, housing for Border Patrol agents, Forward Operating Bases (FOB), equipment 

storage facilities, horse corrals and mobile surveillance systems such as the 

Ground Based Operational Surveillance System (GBOSS) used in Arizona. 

In his testimony, Mr. Andrew emphasizes the cooperation between DOI and the 

Border Patrol in these efforts: 

Tactical communication needs are critical to the security of Border Patrol 

agents and Interior personnel and we have worked closely to assure adjustments can be made in placement and maintenance of these facilities when 

they are present on Interior managed lands. Maintenance of roads and 

fences have also become more routine through issuance of permits and 

rights-of-way by Interior’s land managing agencies. 

During deployment of additional border security resources, Interior worked 

closely with the Border Patrol to avoid or mitigate impacts to the environment by coordinating border security work with local federal land managers. 

33 

127 Id. 128Securing America’s Future Act, H.R. 4760, 115th Cong. div. C, tit. I, subtit. A, § 1118 

(2018). 129 Id. 

These mitigation activities have had no impact on the ability of the Border 

Patrol to protect the border. 

We have made and are continuing to make significant progress and we 

recognize DHS’s leadership on these issues.127

It is clear from the foregoing that to the Border Patrol has demonstrated respect 

for the environment and for protecting our national treasures on Federal lands 

along the border. 

I am not as confident as Mr. Andrew, however, about the effect that the agency’s 

cooperation with DOI has had on its enforcement activities. Given the dangers that 

Border Patrol Agents face on a daily basis, and the numerous contingencies that 

they must constantly deal with in carrying out their mission, clear, unimpeded 

authority should be given to the Border Patrol to access and move on Federal land, 

without restriction, to enable them to carry out their statutory duties. 

As stated above, facilitating the ability of Border Patrol agents to perform their 

duties is critical not only to preventing the illegal entry of aliens into the United 

States, but also to keeping drugs and criminals off of American streets, and to ensuring that individuals who seek to harm our country and our citizens are not able 

to do so. It is also crucial to protecting the environment from the effects of illegal 

cross-border traffic, as well as protecting land-management agency employees. 

Congress must carefully review any laws that impede the Border Patrol in its law 

enforcement efforts, and in particular any laws that inhibit, impede, or delay access 

and movement by the Border Patrol to any section of the border the agency deems 

necessary to carry out its duties. Border Patrol must not only be allowed to move 

freely along the border, but it must also have the ability, in a timely manner, to 

construct, install, and relocate the necessary tactical infrastructure to respond to 

cross-border threats. 

It is incumbent upon Congress to assess whether any laws that inhibit such movement or the employment of such infrastructure should be restricted or waived, at 

a minimum to the extent necessary to ensure that the critical mission of the Border 

Patrol is unhindered and successful. 

CONGRESSIONAL ACTION

Again, given the sophistication and the violent nature of the criminal groups controlling illicit cross-border traffic, Border Patrol must have the ability to react in 

a timely manner to any incursion. It is impossible to know whether a group of individuals crossing the border illegally are coming here to work, are carrying drugs, 

or pose a risk to the American people until they are intercepted. Congress must ensure that Border Patrol has that ability. 

At a minimum, Congress should review the 2006 MOU among DHS, DOI, and 

USDA, and assess in full the impact of that MOU on the Border Patrol’s ability to 

perform its mission on Federal land at and near the southwest border. 

I would argue, however, the Congress should go further, and pass legislation to 

make clear that the Border Patrol has full, unfettered access of movement on 

Federal land, as well as unfettered access to erect tactical infrastructure and maintain access roads across such land. 

For that reason, I would support implementation of Division C, Title I, Subtitle 

A, section 1118 in H.R. 4760, the Securing America’s Future Act of 2018.128 That 

provision would prohibit interference with CBP on covered Federal land to execute 

‘‘search and rescue operations,’’ ‘‘patrol the border area, apprehend illegal entrants, 

and rescue individuals,’’ and to ‘‘design, test[], construct[], install[], deploy[], and 

operat[e] . . . physical barriers, tactical infrastructure, and technology pursuant to 

section 102 of ’’ IIRIRA . . ..’’ 129

As stated above, Border Patrol has shown itself able to both perform its duties 

and to protect the environment. Further, as stated, the performance of those duties 

actually supports the efforts of the land-management agencies in protecting vulnerable environmental areas from the abuse inherent in illegal cross-border traffic. 

I would also support section 1120 in that subtitle, ‘‘Eradication of Carrizo Cane 

and Salt Cedar.’’ That section would direct the eradication of ‘‘the carrizo cane plant 

and any salt cedar along the Rio Grande River that impedes border security 

operations.’’ 

34 

Finally, I would support section 1111 in that subtitle, which, inter alia, would 

amend 8 U.S.C. § 1103(c) note to give the Secretary of Homeland Security waiver 

authority to include: 

[A]ll legal requirements the Secretary, in the Secretary’s sole discretion, 

determines necessary to ensure the expeditious design, testing, construction, 

installation, deployment, operation, and maintenance of the physical 

barriers, tactical infrastructure, and technology under this section. 

The agencies of the United States government are all playing on the same team 

when it comes to protecting the American people, our national security, and the 

environment. It is up to Congress to help them understand that fact. 

Mr. WESTERMAN. The Chair now recognizes Mr. Bell to testify for 

5 minutes. 

STATEMENT OF DAN BELL, PRESIDENT, ZZ CATTLE 

CORPORATION, NOGALES, ARIZONA 

Mr. BELL. Chairman Westerman, Ranking Member McEachin, 

and members of the Committee, good morning. My name is Daniel 

Bell. I am a third-generation rancher from Nogales, Arizona. Our 

family has been ranching on the same piece of country just west 

of the city of Nogales since the late 1930s. The ranch has approximately 10 miles of actual border with Mexico, 2 miles of bollard 

fence, a few hundred yards of vehicle barrier, and the remaining 

8 miles is a four-strand barbed wire fence. 

In the mid-1990s, illegal border crossers impacting the ranch 

were at an all time high. Groups of 50 or larger were being apprehended at any given time. Violence along the border was also 

spiking. 

In 1998, Border Patrol Agent Alexander Kirpnick was murdered 

by drug smugglers on our ranch. On May 12, 2010, the ranch foreman from Mexico, our neighboring ranch in Mexico, was murdered 

and found in a shallow grave. On December 17, 2010, Border 

Patrol Agent Brian Terry was murdered on our neighbor’s ranch directly to the north of us. And on March 27 of 2010, my friend, Rob 

Krentz, was murdered on his ranch in Cochise County. 

With the increase in illegal border crossers came an increase in 

fire frequency on the ranches along the border. Failure to extinguish warming fires, fires lit for those in distress, and fires lit by 

smugglers to create diversions were common. Year after year, fires 

started by illegal border crossers have cost the U.S. taxpayers 

millions upon millions of dollars. 

Much of our time on the ranch is spent fixing fences cut by illegal border crossers, dealing with trespass cattle from Mexico, and 

fixing water developments illegal border crossers have broken, 

leaving livestock and wildlife to suffer. Trash left behind by illegal 

border crossers is a huge problem. We have literally picked up 

many tons of discarded duffel bags, backpacks, clothing, water bottles, and hauled them off to the landfill, only to find them trashed 

again several months later. 

The trash left behind can be dangerous to curious livestock as 

well as wildlife. The situation on the ground is not good for 

wildlife, yet the environmental groups will throw out concerns for 

wildlife and endangered species to thwart border security. In many 

cases, the Endangered Species Act is being misapplied to species 

35 

occupying the border region. More often than not, they are abundant and healthy throughout their extensive range in Mexico and 

as far south as South America. 

Along the same lines, the wilderness designations along the 

border have the effect of creating unenforceable corridors and pathways into the United States. Vehicle access and the use of mechanized and motorized equipment are not permitted. These are the 

areas that tend to be the most heavily used drug trafficking routes. 

Access, infrastructure, and roads are drastically needed along the 

international boundary with Mexico. These measures will reduce 

the footprint of illegal border activity and benefit the natural 

resources. 

Implementing border projects on federally owned borderland is a 

lengthy process. In 2001, the Border Patrol had a desire to build 

a 4-mile long road along the border on our ranch. Actual construction began in 2011. As of today, we can see light at the end of the 

tunnel, nearly 17 years later. 

In recent years, there has been an added emphasis on streamlining the process and implementing projects in a timely manner 

on the Coronado National Forest, and they have designated a border liaison to assist Border Patrol in planning and implementation. 

The Coronado Forest and the Border Patrol are to be commended 

for the many recent accomplishments along the border we see 

today. I can attest to the effectiveness of these measures and how 

illegal activity has been reduced where law enforcement has been 

given more access to the border. This in turn produces the footprint 

of law enforcement which has a positive effect on the environment. 

I believe that this is a good model that other Federal agencies 

and state land management agencies need to adopt. Over the 

years, I have witnessed the construction of 2 miles of bollard-style 

fence, 4 miles of road systems along the international boundary, 

the placement of remote video surveillance system towers and integrated fixed towers. 

Also, new border roads have enabled wildland firefighters to 

respond rapidly and get control of fires. Continuing to establish 

better access roads along the international boundary with Mexico 

is vital. Being able to get to the border is paramount, if one expects 

to defend it. 

There is still work to be done on what is probably some of the 

most challenging terrain encountered along the border. It will not 

be easy, but I have faith we will get it done. I have witnessed significant improvements over the past decade and it coincided with 

implementation of the measures that I have mentioned here today. 

Thank you for your time and allowing me to come before you 

today. 

[The prepared statement of Mr. Bell follows:] 

PREPARED STATEMENT OF DANIEL G. BELL, PRESIDENT, ZZ CATTLE CORPORATION, 

NOGALES, ARIZONA

Good morning my name is Daniel G. Bell. I am a third-generation rancher from 

Nogales, Arizona and President of the ZZ Cattle Corporation. I am a University of 

Arizona Graduate with a Bachelor of Science Degree in Renewable Natural 

Resources, with emphasis in Rangeland Management. Our family has been ranching 

on the same piece of country since the late 1930s. The ranch is located west of the 

36 

city of Nogales, Arizona, along the border with Mexico. The ranch is located within 

the Nogales Station area of responsibility in the Tucson Sector of the Border Patrol. 

Our ranch is nearly 40,000 acres (62.5 sq. mi.) in size and has approximately 10 

miles of actual border with Mexico. Apart from a 2-mile stretch of Bollard Fence 

and a few hundred yards of vehicle barrier, the remainder of the international 

boundary with Mexico is comprised of a 4-strand barb wire cattle fence. The ranch 

consists primarily of four Federal grazing permits with the USDA forest service, 

three of which are situated directly on the international boundary with Mexico. The 

ranch also utilizes private land and Arizona State Trust Land. The entire ranch is 

subject to negative impacts revolving around illegal border crossers and drug 

smuggling. 

While there have always been impacts regarding illegal border crossers and drug 

smuggling on the ranch, things changed drastically in the 1990s! With the implementation of Operation Gatekeeper in California and Operation Hold the Line in 

Texas, illegal border traffic was essentially forced into Arizona. The increased illegal 

border traffic forced our border cities and towns to fortify fencing along the border, 

which in turn forced the illegal activity on to the adjacent ranch lands. The areas 

where it was once common to see one or two illegal border crossers, exploded into 

groups ranging in the number of 50 or more. With that increase, came increases in 

property damage, theft, fire frequency and violence. Our fences were being cut, 

watering facilities were being tampered with and drained, our houses were being 

broken into and valuables were taken. We even had vehicles stolen. On one occasion, the wife of one of our employees was forced at knife point to prepare meals 

for a small group. Upon arriving home, our employee tracked the illegal border 

crossers and led authorities to their location. 

Over the years, violence in the border region had been on the increase. Nogales 

Station agents had been fired upon and in a few incidents, agents were wounded 

by apparent sniper style shootings. In 1998, Border Patrol Agent Alexander 

Kirpnick was murdered as he was apprehending drug smugglers in one of our grazing pastures. On March 27, 2010 while checking livestock, watering facilities and 

fences, my friend Rob Krentz was murdered on his ranch in Cochise County. On 

May 12, 2010, the ranch foreman from the neighboring ranch in Mexico was found 

murdered and buried in a shallow grave after he had gone missing a month earlier. 

On December 17, 2010, Border Patrol Agent Brian Terry, a member of BORTAC, 

the elite tactical unit of the Border Patrol, was murdered on the neighboring ranch 

to the north. His team was in the area to rid the area of violent rip-off crews that 

were targeting illegal border crossers and drug carriers. 

In addition to an increase in violence over the years, fire frequency had also increased on the ranches along the border. Failure to extinguish warming fires, along 

with fires lit by illegal border crossers in distress, and fires lit by smugglers to create diversions were most common. In the mid 2000s, an unoccupied house on the 

Bear Valley portion of our ranch was set ablaze by undocumented aliens when they 

attempted to light the propane powered lights. In 2011, we experienced one of the 

worst fire seasons ever. I believe there were 13 different fires that year that burned 

approximately two-thirds of the entire ranch. Only one of those fires was considered 

a naturally caused fire, all the others were either diversion fires or distress fires. 

In the years that followed, there have been many more fires started by illegal border 

crossers that have cost the U.S. taxpayers millions upon millions of dollars to 

extinguish. 

Because the ranch relies on only the grass production from summer monsoon 

rains, we utilize rotational grazing systems that allow for different seasons of use 

and rest. Each grazing permit is divided into fenced pastures and the livestock are 

moved into fresh pastures upon reaching a specified utilization level. Under normal 

circumstances this is a substantial undertaking with 4 separate herds and 30 

pastures. When you ranch on or near the border you can expect that fences will be 

cut by illegal border crossers on a regular basis, causing ranchers to constantly inspect fences to ensure cattle remain in the proper pasture. Also, when the 

international boundary with Mexico is a 4-strand barb wire fence, you can expect 

to experience problems with trespass cattle from Mexico, which also takes considerable time and effort to get the cattle back to our Mexican neighbors. The rancher 

bears the cost of the damage at the hands of those engaged in the illegal border 

activity. 

When you live in and operate a ranch in an arid environment, water is an essential piece in the health and welfare of livestock, as well as the wildlife that have 

grown accustomed to the water we provide. Most of the water systems located on 

the ranch are outfitted with water faucets to allow anyone to get drink. Unfortunately, illegal border crossers have in many instances broken the water developVerDate Mar 15 2010 08:49 Jun 25, 2018 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6621 J:\115TH CONGRESS\OVERSIGHT & INVESTIGATIONS\02-15-18\28683.TXT DARLEN
37 

ments and drained thousands and thousands of gallons of water. Again, the rancher 

bears this cost, as well as, livestock and wildlife dependent on this vital resource. 

Several years ago, we participated in a University of Arizona study that estimated 

the additional costs that border ranchers face in the wake of illegal immigration. 

What the study indicated is that for every 100 pounds of weight that a calf puts 

on over its life on the ranch, there is an additional $15.00 in cost to the rancher. 

Those are the costs that I mentioned above. The average weight of a steer or heifer 

when marketed is 500 lbs which equates to $75.00 per head. If a ranch sold 300 

head, it would equate to $22,500.00 which is a substantial additional cost. 

In addition to the additional costs, the trash left behind by illegal border crossers 

is a huge problem. We have literally picked up many tons of discarded duffle bags, 

back packs, clothing, water bottles and hauled it off to the landfill, only to go to 

the same spot a few months later and clean it up again. In recent years trash has 

been bagged up and hidden in shrubs to conceal the movement of the illegal border 

crossers. The trash left behind is not only unsightly but also can be dangerous to 

livestock and wildlife. Curious animals have been known to eat plastic bags containing remnants of food. Cloven hooved animals like deer, javelina and cattle have 

had issues with food containers like tuna and sardine cans. The cans get stuck on 

an animal’s foot and eventually wear through the bottom of the can, causing it to 

ride up the animal’s leg and eventually constrict the leg as the animal grows. 

Where border security measures are lacking, the situation on the ground is not 

a good for wildlife, yet ‘‘radical environmental groups’’ will throw-out concerns for 

wildlife and endangered species to thwart border security. Much of the area along 

the border is fringe habitat for so-called threatened and endangered species. In 

many cases, the Endangered Species Act (ESA) is being misapplied to species that 

are abundant and healthy throughout their extensive range in Mexico and as far 

as South America. There is a definite double standard when the border is used to 

define a species’ limited range in the United States to garner protections under 

ESA, but in the next breath we are told you can’t have border security because wildlife species do not recognize borders. 

Along the same lines wilderness designations and natural areas along the border 

have the effect of creating unenforceable corridors and pathways into the United 

States, where vehicles, as well as mechanized and motorized equipment are not permitted. In fact, these areas are the most heavily drug trafficked routes on the ranch. 

We have had chance encounters with armed drug smugglers and their human mules 

in the Pajarito Wilderness and a local chapter of the Boy Scouts of America will not 

go backpacking in the area after an encounter they had on one of their field days. 

Wilderness areas that limit access are available to Border Patrol Agents on only foot 

or horseback. 

Access and infrastructure in the form of roads is drastically needed along the 

border, otherwise the area of operation remains unwieldy. By creating better access 

along the international boundary, the footprint of illegal border activity will be 

greatly reduced. 

With better access, infrastructure like barriers, walls and fences can be constructed. Better access will also facilitate implementation of technology in the form 

Remote Video Surveillance Systems (RVSS), Integrated Fixed Towers (IFTs) and 

Mobile Surveillance Capable (MSC) Vehicles. Agents will be more efficient in securing the border when the area they are responsible for patrolling is significantly 

reduced. 

The reality of gaining access and constructing infrastructure along the border on 

Federal lands is a lengthy process and it needs to be streamlined. In 2001, Border 

Patrol had a desire to build a 4-mile road, referred to by some as the 222- 

interconnector road, along the border on our ranch. Actual construction began in 

2011 and as of today there is light at the end of the tunnel, nearly 17 years later. 

In recent years there has been added emphasis on streamlining the process and implementing projects in a timely manner. For several years now, the Coronado 

National Forest has had a liaison assigned, to assist Border Patrol and try to 

streamline projects on the Forest. 

The Nogales Ranger District and the Border Patrol are to be commended for many 

of the recent accomplishments along the border today. I can attest to the effectiveness of these measures and how illegal traffic has been reduced in areas where law 

enforcement has been given more access to the border. That access reduces the footprint of the illegal activity as well as the footprint required for law enforcement, 

which is a positive for the environment. I believe that this is a good model that 

other Federal and state land management agencies need to adopt. 

Until access and infrastructure can be established in rugged and remote areas, 

it is extremely important that we do not lose focus of the other important aspects 

of border security. Air assets like helicopters, and fixed wing aircraft, as well as 

38 

drones, need to be available to detect illegal activity. Providing support from above, 

inserting agents, guiding them to intercept points, and providing the much-needed 

situational awareness. 

Another area of importance, especially in remote areas is the lack the necessary 

communications technology for both law enforcement and civilians. This is important as there are citizens out recreating in the forest despite the travel caution 

signage warnings of smuggling and illegal immigration in the area. 

Of course, the most crucial factor is having boots on the ground, in the right place 

and at the right time to intercept illegal activity. In rugged areas Border Patrol 

must increase horse patrols and establish Forward Operating Bases in remote areas 

which have been effectively used in the past. 

Funding State and Federal Attorneys’ Offices must be adequate to assure timely 

prosecution of border related offenses. As part of that, ensuring that there are judicial resources in place to provide consequences to offenders is imperative. 

Border Patrol Ranch Liaison Programs to address concerns and gather intelligence. I am fortunate to be a part of the Citizens Advisory Boards and the Rancher 

Liaison Group for the Nogales Border Patrol Station. It gives me the opportunity 

to address security issues in areas of our operation and allows Border Patrol the 

ability to communicate with the public and the folks most affected by illegal activity. 

I view these groups as another sort of metric. 

My focus here today is to highlight what I consider to be useful and positive measures to help secure the border and the lands we work on. Measurables like creating 

access and establishing roads along the international boundary with Mexico. Being 

able to get to the border is paramount if one expects to defend it. Border Patrol has 

done an excellent job in many areas along the border and in my estimation the easier areas have been addressed. What remains on the table is probably some of the 

most challenging terrain encountered along the border, most of which has no vehicle 

access. It will not be easy, but I have faith it will get done. 

Over the last decade, I have witnessed the construction of 2 miles of a Bollard 

style fence, focusing attention to the international boundary with Mexico. The fence 

construction improved range condition by eliminating the constant flow of illegal 

border crossers that created havoc with trails and left trash throughout the landscape. It only took the resource a short time heal and become productive once again. 

In establishing 4 miles of road systems along the international boundary and 

simultaneously erecting RVSS Towers and Integrated Fixed Towers, the traffic patterns were again changed nearly overnight with the flick of switch. We were no 

longer getting the traffic at the ranch headquarters 7 miles from the border. Again, 

we were witness as the range responded and trails healed. We also noticed that 

there were less trespass cattle from Mexico as cuts in the barb wire fence were 

fewer. I even queried friends who lived in the unincorporated community of Rio Rico 

on the northern boundary of the ranch and asked if they were experiencing the 

same reductions in activity, to which the answer was yes. 

39 

In the areas with better access to the border there is a notable reduction in fire 

frequency and with less incidence of fire spreading as the roads have enabled 

wildland firefighters to respond and get control of fires. 

As I have stated before. I have witnessed improvement over the past few years 

in certain areas and it has coincided with the implementation of the measures that 

I have mentioned to you here today. 

Thank you for your time and allowing me to come before you today! 

Mr. WESTERMAN. The Chair now recognizes Mr. Nicol to testify 

for 5 minutes. 

STATEMENT OF SCOTT NICOL, CO-CHAIR, SIERRA CLUB 

BORDERLANDS CAMPAIGN, THE SIERRA CLUB, MCALLEN, 

TEXAS 

Mr. NICOL. Thank you. 

I am the volunteer Co-Chair for the Sierra Club Borderlands 

Team, and I live and teach in McAllen, one of the safest cities in 

the state of Texas. My house is 12 miles north of a section of border 

wall. The actual border is another mile further south. The wall 

south of my home cuts off a World Birding Center, established to 

attract eco-tourism dollars to a community in one of the poorest 

counties in the United States from an adjacent U.S. Fish and Wildlife refuge. And like most of the rest of the 654 miles of border that 

already have a wall or barrier, it was built without regard for local, 

state, and Federal laws meant to protect the environment and 

border communities like mine. 

The authority given to DHS to selectively disregard laws it 

deems inconvenient when it builds walls along either the U.S.- 

Mexico or U.S.-Canada border should not be expanded to cover all 

enforcement activities on all Federal lands within 100 miles of both 

borders, as has been proposed. The laws that are swept aside are 

not merely red tape, they are critical protections that were put in 

place for a reason, to protect people, their communities, and the 

environment. 

The levee border wall that stands 12 miles south of my home is 

a prime example. Twenty-seven laws were waived to expedite its 

construction. The pre-existing levee was essentially a pile of earth 

with a gentle slope on either side that terrestrial animals could 

easily surmount. To convert it into a levee border wall, the riverfacing side was carved away and replaced with an 18-foot tall 

vertical concrete slab. 

Like many of the levee border walls in the Rio Grande Valley, 

this one cuts off a portion of the lower Rio Grande Valley National 

Wildlife Refuge, which was intended to provide habitat for endangered ocelots, a small wild cat. A year after the levee wall’s completion, flooding of the Rio Grande inundated farmlands and refuge 

tracts for 3 to 4 months. Where sloping levees had been converted 

into levee border walls, the U.S. Fish and Wildlife reported that, 

‘‘The floodwall blocked almost all egress for terrestrial wildlife 

species.. . . Hundreds of shells of Texas tortoise have been found 

demonstrating the probability of mortality for species which could 

not retreat from rising water levels. The Service fears any ocelots 

or jaguarundi that may have been caught in these areas when 

40 

water began to rise may have been malnourished, injured, or 

perished.’’ 

Other walls have been built without regard for laws that protect 

people from unnecessary flooding. We have seen devastating floods 

in communities like Nogales and in protected natural areas such 

as Organ Pipe Cactus National Monument. When walls are built 

across our rivers, arroyos, and flash flood zones, they catch debris, 

back up water as much as 6 feet deep, and cause massive damage. 

The Native American Graves Protection and Repatriation Act 

was also waived when barriers were built in the Tohono O’odham 

Nation in southern Arizona. Chairman Ned Norris, Jr. testified 

that during the building of border barriers, ‘‘Fragments of human 

remains were observed in the tire tracks of the heavy construction 

equipment. Barriers of the border road now cross the site. Imagine 

a bulldozer parking in your family graveyard turning up bones.’’ 

The expansion of waivers to cover not only the construction of 

walls along the border but any Border Patrol or Customs and 

Border Protection activity on Federal lands within 100 miles of the 

U.S.-Mexico and U.S.-Canada border would add to the unnecessary 

damage. 

In 2011, Ron Vitiello, who is currently the Acting Deputy 

Commissioner of Customs and Border Protection, testified that, ‘‘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.’’ 

Laws have also been waived for patrol roads along the border. In 

addition to causing environmental harm, carving a road through a 

formerly roadless locale can make that area more accessible to 

drive-throughs by smugglers. This occurred in the San Bernardino 

National Wildlife Refuge, which stated in its 2008 annual report 

that newly installed tactical infrastructure, ‘‘Allowed vehicles loaded with marijuana to drive into the United States, using the new 

system of all-weather roads constructed by DHS. Drive-through 

drug loads have subsequently increased in the San Bernardino 

Valley.’’ 

So, the waiving of laws has proved to be environmentally destructive, and by short-circuiting the normal deliberative process, 

has allowed for counter-productive activities to be undertaken. It 

has also hurt borderland communities. 

Thank you. 

[The prepared statement of Mr. Nicol follows:] 

PREPARED STATEMENT OF SCOTT NICOL, SIERRA CLUB BORDERLANDS TEAM COCHAIR, MCALLEN, TEXAS

My name is Scott Nicol. I am the Volunteer Co-Chair for the Sierra Club’s 

Borderlands Team and I live and teach in McAllen, one of the safest cities in the 

state of Texas. My house is 12 miles north of a section of border wall; the actual 

border is another mile further south. The wall south of my home cuts off a World 

Birding Center, established to attract eco-tourism dollars to a community in one of 

the poorest counties in the United States, from an adjacent U.S. Fish and Wildlife 

41 

1 Rationale and Justification for Conservation Measures Rio Grande Valley Sector. U.S. Fish 

and Wildlife Corpus Christi Ecological Services Field Office. March 9, 2011. 

Refuge. Like most of the rest of the 654 miles of border wall that currently stand, 

it was built without regard for local, state, and Federal laws meant to protect the 

environment and border communities like mine. 

The authority given to the Department of Homeland Security to disregard laws 

it deems inconvenient when it comes to border walls along both the U.S.-Mexico and 

U.S.-Canada border should not be expanded to cover all enforcement activities on 

all Federal lands within 100 miles of both borders, as has been proposed. This flies 

in the face of the basic tenet that the United States is a nation of laws, and sets 

a terrible precedent that could be applied to other destructive Federal projects. 

But the biggest problem with waiving laws is not judicial or philosophical, it is 

concrete. The laws that are swept aside are not merely red tape. They are critical 

protections that were put in place for a reason—to protect people, their communities, and the environment that we depend upon. 

The levee-border wall that stands 12 miles south of my home is a prime example. 

In 2008, 27 laws were waived to ‘‘expedite’’ construction, and it was completed in 

2009. The pre-existing levee was essentially a pile of earth with a gentle slope on 

either side that terrestrial animals could easily surmount. To convert it into a leveeborder wall, the river-facing side was carved away and replaced with an 18-foot tall 

vertical concrete slab. It is a barrier that is readily climbed by humans, as the everreplenishing piles of ladders that still accumulate beside it attest to, but which 

animals that don’t have wings or ladder technology cannot get past. 

Like many of the levee-border walls in the Rio Grande Valley, this one cuts off 

a portion of the Lower Rio Grande Valley National Wildlife Refuge, which was intended to provide habitat for endangered ocelots, a small wildcat with spots resembling a leopard’s. With the Endangered Species Act and the National Environmental 

Policy Act waived, the wall’s impact upon ocelots was detrimental. 

A year after the levee-wall’s completion, the Rio Grande flooded, backing water 

up to the levees and inundating farmlands and refuge tracts for 3 to 4 months. 

Where sloping levees had been converted to levee-border walls, U.S. Fish and 

Wildlife reported that: 

‘‘The floodwall blocked almost all egress for terrestrial wildlife species. 

[. . .] Hundreds of shells of Texas Tortoise have been found demonstrating 

the probability of mortality for species which could not retreat from rising 

water levels. The Service fears any ocelots or jaguarundi that may have 

been caught in these areas when water began to rise may have been 

malnourished, injured, or perished.’’ 1

The decision to waive laws in order to build border walls has caused harm that 

might otherwise have been avoided. 

Walls have been built without regard for laws that protect people from unnecessary flooding. We have seen devastating floods in communities like Nogales and in 

protected natural areas such as Organ Pipe Cactus National Monument. When 

walls are built across our rivers, arroyos and flash flood zones, they catch debris, 

back up water as much as 6-feet deep, and cause massive damage. 

In 2008, flooding caused by the border wall in Nogales, Sonora, caused millions 

of dollars of property damage and was responsible for two deaths. Following that 

event many walls were retrofitted with gates that were intended to allow water and 

debris to pass through, but in 2011 and 2014 those measures failed to stop debris 

from piling up, flood water building up, and sections of border wall being washed 

away. 

The Native American Graves Protection and Repatriation Act is, as its title implies, intended to prevent the desecration and destruction of Native American 

burials, a goal which one might assume would be widely shared. But when waivers 

were issued for border barrier construction through the Tohono O’odham Nation, the 

Native American Protection and Repatriation Act was suspended in the project area. 

The compilation of a list of laws that are to be waived implies a degree of forethought, as there is no reason to waive a law that border barriers or roads are 

unlikely to violate. 

The waiving of the Native American Graves Protection and Repatriation Act 

proved prescient. In 2008, Tribal Chairman Ned Norris Jr. testified that during the 

building of border barriers: 

‘‘. . . fragments of human remains were observed in the tire tracks of the 

heavy construction equipment. Barriers and the border road now cross the 

42 

2 Norris Jr., Ned. Written testimony of The Honorable Ned Norris Jr., Chairman Tohono 

O’odham Nation to the to the Subcommittee on Fisheries, Wildlife, and Oceans and 

Subcommittee on National Parks, Forests, and Public Lands of the House Committee on Natural 

Resources. Joint Oversight Hearing ‘‘Walls and Waivers: Expedited Construction of the Southern 

Border Wall and Collateral Impacts to Communities and the Environment.’’ U.S. House of 

Representatives Committee on Natural Resources. Subcommittee on National Parks, Forests 

and Public Lands. Subcommittee on Fish, Wildlife and Oceans. April 28, 2008. 3 Vitiello, Ron. ‘‘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 Public Lands of the Committee 

on Natural Resources. April 15, 2011. 4 ‘‘Subject: Natural disaster cancels trip . . .’’ Sender redacted. September 17, 2008. Email 

obtained by the Sierra Club via Freedom of Information Act request. 

site. Imagine a bulldozer parking in your family graveyard, turning up 

bones.’’ 2

The expansion of waivers to cover not only the construction of walls along the 

border, but any Border Patrol or Customs and Border Protection activity on all 

Federal lands within 100 miles of the U.S.-Mexico and U.S.-Canada border, would 

add to the unnecessary damage. 

In light of the existing Memorandum of Understanding between Customs and 

Border Protection and the Department of the Interior, granting Border Patrol 

agents access to Federal lands there is no clear need to waive laws, environmental 

or otherwise, to facilitate Border Patrol activities. In 2011, Ron Vitiello, who is currently the Acting Deputy Commissioner of Customs and Border Protection, testified 

that: 

‘‘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.’’ 3

Since Acting Deputy Commissioner Vitiello made this statement, in a congressional committee hearing discussing a proposal to waive laws on Federal lands very 

similar to the one being made today, Border Patrol apprehensions have decreased, 

and seizures of marijuana have plummeted. 

It has been alleged that the need to comply with Federal laws when new patrol 

roads are established or existing roads are repaired through protected Federal lands 

undermines Border Patrol interdiction efforts. But in addition to the environmental 

harm that cutting a road through a refuge or wilderness area can inflict, carving 

a road through a formerly roadless area can make an area that was previously impassable to smugglers easily accessible. This occurred in the San Bernardino 

National Wildlife Refuge, where 10 miles of barrier and patrol roads were built following the issuance of a waiver. Located in Arizona’s southeastern corner, where the 

terrain is heavily eroded, with deep fissures that make much of the area impassable 

to vehicles. Nonetheless, in 2008 Customs and Border Protection proposed the 

erection of barriers and construction of a graded patrol road through the area. In 

response a local stakeholder who had been working with the Malpai Borderlands 

Group (an association of ranchers who work together to restore and maintain 

natural processes while encouraging ranching and other traditional livelihoods) 

warned: 

‘‘They are going to open 10 miles-plus of access to illegal vehicles and 

Border Patrol vehicles through country that has no access now. Where 

there are barriers west of us, the illegals had already cut them with 

torches. 

The Refuge is being compromised and so is the security of the U.S. 

We are furious that they can’t be stopped from building this road and 

barriers. 

We can’t seem to get anyone to see what the damage will be. 

Mark my word, within a year there will be so much increase in traffic and 

damage that it will never be stopped. Then DHS will say they can’t figure 

out how to solve the huge breach in our security.’’ 4

43 

5San Bernardino National Wildlife Refuge, Leslie Canyon National Wildlife Refuge Annual 

Narrative Report Calendar Year 2008. U.S. Department of the Interior, Fish and Wildlife 

Service, National Wildlife Refuge System. 

Absent the need to comply with Federal laws, construction crews inflicted tremendous damage that otherwise might have been avoided. With the Antiquities Act 

waived, a known archaeological site which refuge managers had asked workers to 

avoid harming, was destroyed to create an equipment staging area. Two bodies of 

water that are home to fish listed under the Endangered Species Act were partially 

filled with loose dirt in an effort to create a roadbed. A bulldozer sank and got stuck 

in the resulting saturated muck in one of the ponds. As predicted, soon after the 

barriers and patrol road were constructed through the previously impassable terrain, refuge staff reported that the new ‘‘tactical infrastructure’’ facilitated, rather 

than deterred, illicit cross-border traffic. The San Bernardino National Wildlife 

Refuge’s annual report for 2008 stated that this: 

‘‘. . . allow[ed] vehicles loaded with marijuana to drive into the United 

States using the new system of all-weather roads constructed by DHS. 

Drive-through drug loads have subsequently increased in the San 

Bernardino Valley.’’ 5

So the waiving of laws has not only proved to be environmentally destructive, by 

short-circuiting the normal deliberative process, it has allowed for counterproductive activities to be undertaken. It has also hurt borderlands communities. 

With the waiving of protections like the Clean Water Act and National 

Environmental Policy Act, towns have flooded and borderlands residents are left 

with the aftermath. Expanding the waiver to include more Federal lands and more 

types of projects would expand and exacerbate these problems. 

Mr. WESTERMAN. The Chair now recognizes Mr. Judd to testify 

for 5 minutes. 

STATEMENT OF BRANDON JUDD, PRESIDENT, NATIONAL 

BORDER PATROL COUNCIL, TUCSON, ARIZONA 

Mr. JUDD. Chairman Westerman, Ranking Member McEachin, 

and distinguished members of the Subcommittee, I appreciate the 

opportunity to testify today. 

The myriad of laws, regulations, and bureaucratic policies related 

to federally managed and protected lands prevent Border Patrol 

agents in the field from fully doing their job on a daily basis. 

Ultimately, these laws undermine our ability to effectively and efficiently secure our borders, and put the lives of our agents and the 

public at greater risk. 

The vast majority of apprehensions made by the Border Patrol 

occur on the southern border with Mexico. Along this very same 

border, roughly 40 percent of the land that makes up our 2,000- 

mile long border is designated by the Federal Government as some 

type of Federal land. This is land that is managed, controlled, or 

protected by multiple agencies spread across two separate cabinetlevel departments, not including the department responsible for 

border security. 

Simply looking at a map of border areas in California, Arizona, 

New Mexico, and Texas, one will see a landscape blanketed by 

Federal lands that include national conservation areas, forests, 

monuments, parks, recreation areas, scenic areas, and wildlife 

refuges. The restrictions that agents face on these lands on a daily 

basis are due to a laundry list of some three dozen laws that date 

back over a century. 

44 

Even with the significant impediments to our work stemming 

from these legal requirements and regulations, morale among rank 

and file Border Patrol agents is surging, thanks to the support and 

backing we have received from the Trump administration encouraging agents to go out and do the job we were hired to do. 

In fact, from his very first week in office, President Trump has 

demonstrated his unwavering commitment to finally securing our 

land borders. On January 25 of last year, President Trump signed 

Executive Order 13767 to improve border security and immigration 

enforcement. Most relevant for the Subcommittee is Section 12 of 

the order, which directs the Secretaries of Homeland Security, 

Interior, and Agriculture, to take all appropriate action to ensure 

that the men and women of the Border Patrol have access to all 

Federal lands in order to secure our land borders. 

This important executive action is a crucial step to solve a problem that has long plagued the Border Patrol and our ability to do 

our job. 

As Chairman Westerman and Bishop recently saw firsthand, the 

challenges created by these legal requirements, rules, and policies 

are very real for those patrolling our borders. For example, in the 

Coronado National Forest within the Tucson Sector of Arizona, our 

inability to build proper access roads along and near the line, including secondary roads, diminishes agent mobility while patrolling, and ultimately prevents agents from being as effective as they 

could otherwise be. 

Because there is no actual east-west border road beyond the 

fence, which only stretches a short distance into the forest, the 

United States, in essence, has ceded approximately a quarter mile 

of U.S. territory to criminal enterprise, including drug and human 

traffickers. 

While my primary concern is overall border security, including 

the safety of agents and the public, I would like to highlight for the 

Subcommittee how unintended consequences stemming from environmental laws meant to protect our natural resources can have 

the opposite effect and actually harm the environment. 

For example, in one of my personal experiences in the mid-2000s, 

in the Naco area of operations within the Tucson Sector, the Border 

Patrol built a continuous fence that was constructed right up to the 

San Pedro River within the San Pedro National Conservation Area. 

While we were able to continue with the construction of the fence 

to the west of this sensitive riparian area, due to legal restrictions, 

we had to wait to complete construction within the conservation 

area until we had the required permitting and the environmental 

impact studies were complete. 

During this long waiting period, the massive hole left in our fencing allowed criminal enterprises to drive their vehicles up to the 

riparian area with absolutely no regard for this environmentally 

sensitive area. While we now have some barriers in place that 

make it a little more difficult for criminal enterprises to spoil this 

riparian area, due to the difficulty of the laws, the barriers are a 

far cry from what is needed and are easily defeated. 

Finally, I would like to close by urging Congress to consider and 

pass legislation that would solve these very real problems. 

45 

Mr. Chairman, I would like to commend the Subcommittee, 

Chairman Bishop, and Congressman Johnson, for your work in 

crafting reform language that has been included in H.R. 4760, 

Securing America’s Future Act. This Committee’s contribution to 

the broader border security reform is crucial to ensure that agents 

have the ability to properly patrol Federal lands and prevent all 

unlawful entries into the United States. 

Additionally, the Committee may want to consider an amendment to ensure that Border Patrol efforts to close off tunnels used 

by drug and human smugglers are not delayed or blocked by existing laws. Regardless of this amendment, by waiving the relevant 

environmental laws and thus eliminating the restrictions imposed 

on Border Patrol, the Committee’s legislation will finally take the 

handcuffs off the agents and allow us to simply do our jobs. 

I want to thank the Subcommittee, and I look forward to 

answering any and all of your questions. 

[The prepared statement of Mr. Judd follows:] 

PREPARED STATEMENT OF BRANDON JUDD, ON BEHALF OF THE NATIONAL BORDER

PATROL COUNCIL, TUCSON, ARIZONA

Chairman Westerman, Ranking Member McEachin, and distinguished members of 

the Subcommittee, I would like to thank you for inviting me to testify before you 

today in order to communicate the significant challenges that our Nation’s Border 

Patrol Agents are facing, specifically when patrolling on Federal lands. 

My name is Brandon Judd and I currently serve as the President of the National 

Border Patrol Council, where I represent approximately 16,000 Border Patrol field 

agents and support staff. I have 20 years of experience as a Border Patrol Agent 

and a thorough understanding of the policies affecting border security. 

While this is my first time testifying before this Subcommittee, I know that both 

the Subcommittee and Full Committee have been working for years to address the 

issues before us today and I am grateful for your continued oversight and steadfast 

dedication to solving these problems. Thank you for allowing me the opportunity to 

describe the current state of the border and how the myriad of laws, regulations and 

bureaucratic policies related to federally managed and protected lands prevent 

Border Patrol Agents in the field from fully doing their job on a daily basis. Ultimately, these laws undermine our ability to effectively and efficiently secure our 

borders and put the lives of our agents and the public at greater risk. 

As the Subcommittee is undoubtedly aware, the vast majority of apprehensions 

made by the Border Patrol occur on our southern land border with Mexico. Even 

though we saw apprehension numbers drop to historic lows soon after President 

Trump took office, the Border Patrol still made over 310,000 total apprehensions 

across the country during Fiscal Year 2017. Of those 310,000 apprehensions, nearly 

304,000 or roughly 98 percent, occurred along the southwest border. 

Along this very same border, roughly 40 percent of the land that makes up our 

2,000 mile-long border is designated by the Federal Government as some type of 

Federal land, according to a Government Accountability Office analysis. This is land 

that is managed, controlled or protected by multiple agencies, spread across two separate cabinet-level departments, not including the Department responsible for 

border security. 

Simply looking at a map of border areas in California, Arizona, New Mexico and 

Texas, one will see a landscape blanketed by Federal lands that include National 

Conservation Areas, Forests, Monuments, Parks, Recreation Areas, Scenic Areas, 

and Wildlife Refuges. The restrictions that agents face on these lands on a daily 

basis are due to a laundry list of some three dozen laws that date back over a 

century. 

Even with the significant impediments to our work stemming from these legal requirements and regulations, morale among rank-and-file Border Patrol Agents is 

surging thanks to the support and backing we’ve received from the Trump administration encouraging agents to go out and do the job we were hired to do. In fact, 

from his very first week in office, President Trump has demonstrated his unwavering commitment to finally securing our land borders. On January 25 of last year, 

President Trump signed Executive Order 13767 to improve border security and immigration enforcement. Most relevant for the Subcommittee is Section 12 of the 

46 

Order which directs the Secretaries of Homeland Security, the Interior and 

Agriculture to ‘‘take all appropriate action’’ to ensure that the men and women of 

the Border Patrol have access to all Federal lands in order to secure our land 

borders. 

This important executive action is a crucial step to solve a problem that has long 

plagued the Border Patrol and our ability to do our job. Even former President 

Obama’s Homeland Security Secretary Janet Napolitano acknowledged the significance of the problem when she wrote in a 2009 letter that: 

‘‘While the USBP recognizes the importance and value of wilderness area 

designations, they can have a significant impact on USBP operations in 

border regions. This includes that these types of restrictions can impact the 

efficacy of operations and be a hindrance to the maintenance of officer 

safety. The USBP, in accordance with [a] 2006 MOU [with DOI and USDA] 

makes every reasonable effort to use the least impacting means of 

transportation within wilderness; however along the southwest border it can 

be detrimental to the most effective accomplishment of the missions. 

For example, it may be inadvisable for officer safety to wait for the arrival of horses for pursuit purposes, or to attempt to apprehend smuggling 

vehicles within wilderness with a less capable form of transportation.’’ 

While the ‘‘detrimental’’ impact to the border security mission is certainly concerning when reading former Secretary Napolitano’s letter, what I’d like the 

Subcommittee to focus on for a moment are the real-life implications for agent 

safety—something that should be of paramount concern to everyone. To ever suggest 

that an agent—who is likely working alone, probably on terrain making he or she 

vulnerable to attack, and almost certainly in a remote location—should wait for the 

arrival of agents mounted on horses in order to safely make an apprehension of an 

illegal entrant is completely and utterly absurd. I hope that the Subcommittee would 

never tolerate policies of this nature and allow senior agency bureaucrats in 

Washington to prioritize possible impacts on the environment over the safety of the 

men and women of the Border Patrol. This is of particular concern at a time when 

we’ve seen a dramatic increase in assaults on agents. Just last year, assaults on 

Agents were up by 76 percent and totaled 774 for 2017. 

With the threats facing agents at an all-time high due to drug cartels, violent 

criminal aliens and ever-growing personnel shortages, the last thing agents need to 

contend with are the added burdens created by environmental laws, regulations and 

memos drafted by supervisors and managers sitting behind desks. As Chairmen 

Westerman and Bishop recently saw firsthand, the challenges created by these legal 

requirements, rules and policies are very real for those patrolling our borders. For 

example, in the Coronado National Forest within the Tucson Sector of Arizona, our 

inability to build proper access roads along and near the line, including secondary 

roads, diminishes agent mobility while patrolling and ultimately prevents agents 

from being as effective as they could otherwise be. Because there is no actual eastwest border road beyond the fence, which only stretches a short distance into the 

Forest, the United States in essence has ceded approximately a quarter-mile of U.S. 

territory to criminal enterprise, including drug and human traffickers. 

While my primary concern is overall border security including the safety of agents 

and the public, I’d like to highlight for the Subcommittee how unintended consequences stemming from environmental laws meant to protect our natural 

resources can have the opposite effect and actually harm the environment. For example, in one of my personal experiences in the mid-2000s in the Naco Area of 

Operations within the Tucson Sector, the Border Patrol built a continuous fence 

that was constructed right up to the San Pedro River within the San Pedro National 

Conservation Area. This conservation area runs north from the border and is made 

up of approximately 57,000 acres of public land, managed by the Interior 

Department’s Bureau of Land Management. While we were able to continue with 

the construction of the fence to the west of this sensitive riparian area, due to legal 

restrictions, we had to wait to complete construction within the conservation area 

until we had the required permitting and the environmental impact studies were 

complete. During this long waiting period, the massive hole left in our fencing allowed criminal enterprises to drive their vehicles up the riparian area along and 

near the riverbed, with absolutely no regard for this environmentally sensitive area. 

While we now have some barriers in place that make it a little more difficult for 

criminal enterprises to spoil this riparian area, due to the difficulty of the laws the 

barriers are a far cry from what’s needed and are easily defeated. 

Tactical infrastructure and barriers, such as the fencing in Naco, are crucial to 

preventing illegal entries and securing our border. While there has been no shortage 

of debate and controversy over the proposed border wall, in my opinion serving in 

47 

the Border Patrol for the past 20 years, including in the busiest sector in the history 

of the Border Patrol, a wall, in strategic locations is pivotal to securing our border. 

Without physical barriers, such as a wall, we’re far less able to dictate and direct 

where illegal entries are made, making us less effective and inefficient. A wall in 

strategic locations will ultimately lead to far greater effectiveness and allow us to 

direct our very limited manpower resources to areas without barriers and where illegal crossings are more likely to take place. If, in the coming months and years, 

new plans and efforts to build physical barriers are blocked, delayed or otherwise 

stopped because of these environmental laws, then the safety and security of our 

agents and citizens will suffer greatly. 

Finally, I’d like to close by urging Congress to consider and pass legislation that 

would solve these very real problems. Mr. Chairman, I would like to commend this 

Subcommittee, Chairman Bishop and Congressman Johnson for your work in 

crafting reform language that has been included in H.R. 4760, Securing America’s 

Future Act, sponsored by Chairmen Goodlatte, McCaul, and Labrador, as well as 

Chairwoman McSally. This Committee’s contribution to the broader border security 

reform effort is crucial to ensure that agents have the ability to properly patrol 

Federal lands and prevent all unlawful entries into the United States. While this 

legislation is still pending before the House, I’d like to suggest that the Committee 

consider amending Section 1118 to ensure that the Border Patrol can conduct proper 

maintenance of physical barriers, tactical infrastructure and technology on Federal 

lands. Additionally, the Committee may want to consider an amendment to ensure 

that Border Patrol efforts to close off tunnels used by drug and human smugglers 

are not delayed or blocked by existing laws. Regardless of these two suggestions, 

by waiving the relevant environmental laws and thus eliminating the restrictions 

imposed on the Border Patrol, the Committee’s legislation will finally take the handcuffs off of agents, and allow us to simply do our jobs. 

I want to thank the Subcommittee for your time this morning and I look forward 

to answering any questions that you may have. 

QUESTIONS SUBMITTED FOR THE RECORD BY REP. GRIJALVA TO BRANDON JUDD, 

PRESIDENT, NATIONAL BORDER PATROL COUNCIL

Please answer the following questions regarding the 2014 incident you described 

in which Border Patrol could not fill a cross-border tunnel near the San Diego area 

due to the presence of a bird’s nest: 

Question 1. What was the specific location of the opening of the tunnel? Was the 

opening located on Federal lands? 

Answer. Prior to the hearing, Customs and Border Protection (CBP) management 

sent one of my consultants an e-mail regarding tunnel remediation delays stemming 

from environmental laws. Below are the relevant portions of the e-mail with the example. The agency is the entity that provided me with this information and thus 

allowed me to use the information if relevant questions were asked at the hearing. 

The information provided by CBP does not give the specific location in San Diego 

of the opening of the tunnel nor if it was on Federal lands. I have no additional 

information regarding the 2014 incident described by CBP management beyond 

what was in the e-mail and recommend that you ask the agency for additional 

information. 

Email from CBP management (bold added for emphasis): 

‘‘All tunnel remediations have to go through the NEPA process. This 

requirement can and often does delay remediation.’’ The e-mail goes 

on to mention, ‘‘. . . an incident in 2014 in the SDC AOR in which a 

bird nesting in a tunnel delayed a remediation.’’ 

Last, in order to better assist the Ranking Member and the Committee in its 

oversight, I wanted to let the Committee know that based on additional information 

provided by CBP, 194 illicit cross-border tunnels have been discovered nationally 

since Fiscal Year 2000. Based on the CBP data, four cross-border tunnels were discovered during Fiscal Year 2014 in the San Diego Sector. 

Question 2. What species of bird occupied the nest near the tunnel opening? How 

close was the nest to the tunnel opening? 

Answer. Please refer to the answer to Question Number 1. I have no additional 

information regarding the 2014 incident described by CBP management beyond 

48 

what was in the e-mail and recommend that you ask the agency for additional 

information. 

Question 3. Which Federal agency directed Border Patrol to postpone filling the 

tunnel until the bird’s eggs had hatched? Under what authority or environmental 

law was this directive given? 

Answer. Please refer to the answer to Question Number 1. I have no additional 

information regarding the 2014 incident described by CBP management beyond 

what was in the e-mail and recommend that you ask the agency for additional 

information. 

Question 4. How long did the tunnel remain unfilled since being discovered? How 

much of this time was due solely to the presence of the bird’s nest? 

Answer. Please refer to the answer to Question Number 1. I have no additional 

information regarding the 2014 incident described by CBP management beyond 

what was in the e-mail and recommend that you ask the agency for additional 

information. 

Question 5. Was an environmental impact statement required to fill the tunnel? 

Has Border Patrol established a categorical exclusion under NEPA for filling cross 

borders tunnels? If not, why not? 

Answer. Please refer to the answer to Question Number 1. I have no additional 

information regarding the 2014 incident described by CBP management beyond 

what was in the e-mail and recommend that you ask the agency for additional 

information. 

Question 6. Has the tunnel since been filled? If not, why not? Is the portion of 

the tunnel on the Mexico side of the border filled? 

Answer. Please refer to the answer to Question Number 1. I have no additional 

information regarding the 2014 incident described by CBP management beyond 

what was in the e-mail and recommend that you ask the agency for additional 

information. 

Other questions for Mr. Judd: 

Question 7. What was NBPC’s involvement in Mark Morgan’s dismissal? 

Answer. The first time I was made aware that former Chief Mark Morgan was 

being dismissed was on the morning of January 26, 2017 when CBP Acting 

Commissioner Kevin McAleenan called me and informed me he made the decision 

to remove Chief Mark Morgan from his position as the Chief of the Border Patrol. 

There were several NBPC officers with me when Acting Commissioner McAleenan 

called me. The call was professional and appropriate. Acting Commissioner 

McAleenan knew I would get numerous questions from the media and he asked 

that, ‘‘I do not dance on his grave.’’ I am not aware that I or NBPC played a role 

in Chief Morgan’s dismissal and I certainly never asked Acting Commissioner 

McAleenan to remove Morgan. 

Furthermore, I am not aware of any statute, regulation or policy that would have 

given me, as a GS-12 Border Patrol Agent and President of the NBPC, or the NBPC 

itself, the authority to determine the employment status of any CBP employee, including the Chief of the Border Patrol. As per the call referenced above with Acting 

Commissioner McAleenan, he made it very clear that the decision to remove Chief 

Morgan was his and his alone. 

At the time he was appointed to be the Chief, Chief Morgan was a retired Federal 

employee and was hired to the Chief’s post as a rehired annuitant and therefore 

did not have the protections of a career employee. Acting Commissioner McAleenan 

was free to dismiss him without the customary formalities because he was not a 

career employee but rather was a rehired annuitant. 

What is true and is well known is that I, acting on behalf of the bargaining unit 

as the President of the NBPC, believed there was a culture problem in the Border 

Patrol and continue to hold this belief to this day. When Chief Morgan was selected, 

I was informed that he was selected to bring about a much needed culture change. 

I was publicly supportive of his selection but quickly became disenchanted due to 

the fact that he surrounded himself with the same management officials who were 

the cause of the culture problems. During his short tenure the culture did change 

but changed for the worse, as those same people who were in part responsible for 

the agency’s long-standing culture problems were emboldened when Chief Morgan 

failed to make needed changes. Sadly under his watch there was less accountability 

in the agency and that lack of accountability continues to this day. 

49 

Question 8. Has NBPC ever condemned the use of excessive force? 

Answer. Yes. The NBPC does not and will not condone ‘‘excessive force.’’ Excessive 

force is against the law and I personally do not know any Border Patrol Agent who 

believes it is acceptable for law enforcement officers/agents to break the law. The 

NBPC does believe in due process for all persons including those accused of crossing 

the border illegally, as outlined in law, and that also includes any law enforcement 

officer/agent accused of excessive force. 

Question 9. The FBI has not found any evidence to suggest that the death of 

Border Patrol agent Rogelio Martinez was caused by an attack. What evidence does 

NBPC use when continuing to characterize this incident as a ‘‘heinous attack?’’ 

Answer. On Monday, November 20, 2017, El Paso Sector Assistant Chief Patrol 

Agent Richard C. Whitman sent an e-mail to one of my former Local Presidents in 

which he describes the death of BPA Rogelio Martinez as a ‘‘heinous attack.’’ When 

speaking with the media since the incident, I have been using the verbiage given 

to NBPC by management officials in the Border Patrol. The following is the text 

of the e-mail in its entirety. 

‘‘I’m sure you are aware of the LOD death of the BBT agent and his partner 

that is in serious condition. While FBI has the lead, HQ/OBP has directed 

EPT to throw as much personnel and resources as possible to assist in 

locking down that area to locate the perpetrators of this heinous 

attack [emphasis added]. Obviously, this will cause an additional strain on 

EPT’s already thinly spread staffing. The details on what this might look 

like are still being put together. To this end, I was wondering if the Agency 

were to grant a blanket extension on grievances, replies, etc., would you 

support a moratorium on official time?’’ 

Furthermore, the morning following Agent Martinez’ death a Supervisory Border 

Patrol Agent from the El Paso Sector sent the following text message to several individuals. Please forgive any punctuation or grammar mistakes, I am quoting the 

text message verbatim: 

‘‘2 agents got assaulted in Van Horn last night and got airlifted to UMC. 

There was a sensor activation and 1 agent responded went back to his 

vehicle to call out that the sensor was good. Not sure what happened after 

that but I’m hearing he got jumped by 6 mules and had his face basically 

smashed in. 2nd agent arrived to help out with trail without knowing 1st 

agent had been assaulted and he also got jumped. Word is 1st agent passed 

away and 2nd agent is in critical but stable condition. They r back tracking 

the group south of van horn. Everyone’s been activated. We sent 3 guys to 

assist’’ 

As you can clearly see, it was Border Patrol management that characterized the 

death of Rogelio Martinez as an attack. NBPC had no reason to believe the 

information by the agency itself was incorrect. 

Mr. WESTERMAN. I say thank you to all of the witnesses for your 

testimony. 

I would like to remind the members of the Committee that 

Committee Rule 3(d) imposes a 5-minute limit on questions. I will 

now recognize Members for any questions they may wish to ask the 

witnesses. I will recognize myself to start with for 5 minutes. 

I also remind the witnesses that we are going to keep this to 5 

minutes per person. We have votes coming up here shortly, so if 

we cut you off, it is because we have a lot of questions we want 

to ask. 

My first question is for the whole panel. There is a graphic up 

here, the one on the top left shows a lot of ad hoc roads along the 

border. You see examples of the trash that we talked about in some 

of these areas. 

[Slide.] 

In March of 2010, then-Secretary Salazar, while on a border visit 

with Ranking Member Grijalva, stated that, and I quote, 

50 

‘‘Deterring unlawful activity along the border is the best option for 

preventing damage to cultural and natural resources and minimizing risks to visitors and employees.’’ 

The Fish and Wildlife Service found almost 8,000 miles of ad hoc 

roads used by cross-border violators in the Cabeza Prieta National 

Wildlife Refuge. Millions of pounds of trash and waste are collected 

from layup areas. Wildland fires are also often ignited by border 

violators. 

I want to ask each of you a simple yes or no question. Do you 

agree with Secretary Salazar’s statement that deterring unlawful 

activity along the border best protects our natural resources? 

Mr. ARTHUR. Yes. 

Mr. BELL. Chairman Westerman, yes. 

Mr. WESTERMAN. Mr. Nicol, yes or no? 

Mr. NICOL. It is more complicated than that, unfortunately. 

Mr. WESTERMAN. Mr. Judd? 

Mr. JUDD. I do agree, yes. 

Mr. WESTERMAN. OK. Mr. Bell, as a third-generation rancher 

along the southern border, you have experienced firsthand the 

impact illegal activity can have on Federal lands. Can you briefly 

describe for us how Border Patrol’s increased presence and infrastructure has improved the health of your grazing land? 

Mr. BELL. We have a permit that we graze cattle on called the 

Mariposa, and when we started grazing there, there was so much 

illegal activity and trash and trails and trespass from Mexican cattle, we were unable to actually go in there because utilization levels of the grass were already hit. Once Border Patrol established 

a presence on the border, put in a portion of the bollard-style fence, 

we were able to start using that the next season. It healed that 

quickly. 

Mr. WESTERMAN. OK. Mr. Judd, a 2006 Memorandum of 

Understanding between the Department of the Interior, 

Agriculture, and Homeland Security attempted to provide guidance 

and increase coordination between Customs and Border Protection 

and Federal land managers to balance border security and environmental issues. In what ways is this MOU insufficient for Border 

Patrol agents’ needs? 

Mr. JUDD. It is the large bureaucracy that the government currently has. When we have to go and discuss issues with so many 

different agencies to try to make something happen, we see what 

happened in the San Pedro riparian area. We weren’t able to build 

the barriers that were necessary, which allowed the human and 

narcotics smugglers to ruin that area for a time until it was able 

to heal, which took several years. But to even put Normandy-style 

barriers in that area took about 2 years, just to be able to do that. 

Mr. WESTERMAN. And, Mr. Arthur, based on your experience 

drafting some of the most significant border security laws since 

September 11, 2001, what would you change in the 2006 MOU to 

ensure that Border Patrol can accomplish its mission on Federal 

lands? 

Mr. ARTHUR. I would actually refer to the way that the MOU 

operates. Right now, it puts environmental agencies in charge of 

border security. Law enforcement should be the entity that actually 

controls the process rather than the other way around. 

51 

Mr. WESTERMAN. OK. Mr. Judd, as mentioned in my opening 

statement, during my visit to the southern border, we heard from 

Border Patrol about tunnels being used for drug smuggling, and 

you referenced that as well. Can you briefly explain the statutory 

and regulatory obstacles that agents face when trying to remediate 

one of these cartel tunnels? 

Mr. JUDD. Just to remediate a tunnel, we have to follow the 

NEPA laws. And in 2014, in San Diego, we had a tunnel that we 

were not able to remediate because a bird had nested in that area 

and we had to wait until the eggs hatched before we could remediate that tunnel. The problem with that was that we had to allocate resources to guard that tunnel, which then left other areas on 

the border unsecured, which allowed the cartels to exploit that 

area. We have to be able to remediate these tunnels immediately. 

Mr. WESTERMAN. OK. And I am going to stick to my rule, not 

going past 5 minutes, or the Committee Rule. So, I won’t ask a 

question where you only have a few seconds to answer. 

With that, I will recognize the Ranking Minority Member of the 

Subcommittee, Mr. McEachin, for questions. 

Mr. MCEACHIN. Thank you, Mr. Chairman. 

Mr. Arthur, is your Center for Immigration Studies the same one 

that was founded by John Tanton? 

Mr. ARTHUR. It was not founded by John Tanton. 

Mr. MCEACHIN. Was it founded in 1985? 

Mr. ARTHUR. It was founded in 1985. I only began working—— 

Mr. MCEACHIN. Thank you. That answers my question. 

Mr. Nicol, there has been some suggestion by some of the 

witnesses here that the Border Patrol has been handcuffed. And I 

assume by being handcuffed, we are talking about handcuffed by 

environmental and public policy safety laws. What rights and protections do these so-called handcuffs help to keep in place? 

Mr. NICOL. I think it is important to see the interaction between 

the Border Patrol and land management agencies as a net positive. 

You have two different agencies that are responsible for work in a 

given area, they should be working together to minimize the kind 

of harm that could be done. Giving one an upper hand over the 

other is not helpful in any way. 

Mr. MCEACHIN. All right, sir. The Chairman asked a yes or no 

question concerning a quotation from a few years back. You gave 

the answer, it is more complicated than that. Do you care to elaborate on your answer at this point? 

Mr. NICOL. Certainly. Trash can be remediated fairly easily, it 

can be picked up. Trails that somebody leaves walking across the 

border can heal themselves relatively quickly. 

If the laws are waived to build border walls, those walls cause 

significantly more damage, they tend to dam water, they cause 

flooding, the roads that have been carved through are far worse 

than trails. So, yes, it is good to limit the amount of trash that is 

left behind. But if the measures that are used to do that are more 

destructive than the trash itself, then that is a bigger problem. 

Mr. MCEACHIN. Thank you. It also has been suggested that public land management agencies like the Department of the Interior 

and the USDA are to blame for delays in Border Patrol’s border 

security efforts. However, it is my understanding that these public 

52 

land agencies hold an MOU with the Department of Homeland 

Security that helps to ensure cooperative management of border 

security on public lands. In fact, both Customs and Border Protection and the Department of the Interior have submitted testimony 

to this Subcommittee before saying that the MOU is working well. 

To your knowledge, is this MOU working as it was intended? 

Mr. NICOL. I think generally it is. I think that there are going 

to be issues in which one agency or the other, I think this goes on 

both sides, feel that things did not go as quickly as they would like. 

I think one thing that might slow things down is the lack of 

biologists within the U.S. Fish and Wildlife. They have had a decreasing workforce, so possibly hiring some more biologists would 

help things like that to speed up. But I think overall it has been 

a positive. 

Mr. MCEACHIN. That is probably a nice segue into my final question to you. How do you think the severe funding cuts proposed for 

the Department of the Interior and the USDA in the President’s 

Fiscal Year 2019 budget will affect their ability to make land management decisions along the border? 

Mr. NICOL. It will have a tremendous impact. These land management agencies also have their own law enforcement officers. If 

they don’t have the funds to hire those officers or retain those officers, if they don’t have people on the ground in these places, they 

are less able to do their jobs and they are also less able to work 

with Border Patrol. 

Mr. MCEACHIN. Thank you. 

Mr. Chairman, while that concludes my questions, I would ask 

unanimous consent to enter into the record the evidence that led 

the Southern Poverty Law Center to declare the Center for 

Immigration Studies a hate group. 

Mr. WESTERMAN. Without objection. 

The Chair will now recognize the Vice Chair of the Committee, 

Mr. Johnson from Louisiana, for 5 minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Mr. Judd, I had a couple of questions for you. I want to thank 

you for your service first, and just kind of highlight some of the 

things you have said here today and what you have presented. On 

page 2 of your submitted testimony, you focus on the real life implications for agency safety, and you talked about that this morning. 

Specifically, something that really drew my attention from page 

2 of your written testimony, you say, ‘‘This is a particular concern 

at a time when we have seen a dramatic increase in assaults on 

agents. And just last year, assaults on agents were up 76 percent. 

They totaled 774 for 2017.’’ 

It is a dangerous job, and I think the American people recognize 

that or are beginning to appreciate it more. And we need to do all 

we can, that is our commitment, to assist you all and protect those 

who protect us. 

Since my time is limited, I am not going to repeat everything you 

stated in those comments, but I do want to associate myself with 

that because I think your comments well articulate the importance 

of the topic that we are discussing today. 

But here is my question. In your testimony, you also raise the 

point of how unintended consequences of environmental laws, 

53 

which are meant to protect our national resources, are actually 

harming the very areas they are supposed to protect. I am curious, 

in your personal experience that you related in your testimony, 

specifically with regard to the Naco area of operations, this is 

where the Border Patrol was required to leave the conservation 

area alone until it received the necessary permits and completed 

the environmental impact studies. 

You mention that you had a long waiting period in that interim 

time, but you didn’t say exactly how long. I know you probably cannot give a detailed number of days, but approximately how long 

was that waiting period? Are we talking weeks, months, a year? 

How long was it? 

Mr. JUDD. To the best of my recollection, it was approximately 

2 years. 

Mr. JOHNSON. So, for nearly 2 years, for that amount of time, 

there was a massive hole that allowed criminal enterprises to drive 

their vehicles along areas that were intended to be nationally protected areas. Is that right? 

Mr. JUDD. Yes. I personally chased several of these vehicles that 

crossed the border in that area. 

Mr. JOHNSON. I think the importance of this hearing today is 

that I don’t think the American people are aware of how nonsensical these things are and that it is jeopardizing our public safety. 

I am so grateful you brought it. It is very frustrating to all of us, 

and it must be very frustrating to the agents on the ground. I can 

just imagine what they must be saying about Congress and those 

who are making these laws. 

Does it affect morale in that way? I know you said morale is 

trending upward, thankfully, because of the Administration’s appreciation and the increasing awareness of all this. But that has 

to be a problem on the ground, right? 

Mr. JUDD. I believe that all individuals want to feel like they are 

productive. I remember the best job that I ever had was when I 

worked construction when I was a college student. I was able to 

leave the construction site, look back and see what I accomplished. 

Border Patrol agents want to feel exactly the same way. They want 

to feel like they are in fact securing the border. 

Mr. JOHNSON. I appreciate that. 

I had one question for Mr. Nicol with regard to testimony you 

just gave. I think I heard you say that the trash that is left behind 

can be picked up, collected easily. Am I characterizing your response? 

Mr. NICOL. A lot more easily than remediating problems that are 

caused by border walls and patrol roads, yes. 

Mr. JOHNSON. The reason that piqued my interest is that we 

know that Border Patrol estimates that every CBV leaves approximately 8.5 pounds of garbage behind, each individual. So, if you do 

the math, based on the Border Patrol’s conservative estimate of 1.3 

million known CBVs, that means illegal immigrants and smugglers 

left approximately 11,050,000 pounds of trash over a 3-year period. 

Are you suggesting today that that is an easy thing to control and 

pick up? 

Mr. NICOL. Again, the amount of harm that that does to an environment, it is significant, but it is far less than the amount of 

54 

harm done by border walls or by roads that are cut through 

roadless areas. 

Mr. JOHNSON. But just so we are clear. Are you saying that 11 

million pounds of trash is an easy thing to contain and control? 

Because I thought that is what you said a few minutes ago. 

Mr. NICOL. It is matter of which one is greater, which does the 

greater harm. 

Mr. JOHNSON. OK. I will yield back. 

Mr. WESTERMAN. The gentleman yields back. 

The Chair now recognizes the Ranking Member for 5 minutes, 

Mr. Grijalva. 

Mr. GRIJALVA. Thank you, Mr. Chairman. And, Mr. Chairman, 

the Committee staff, Mr. McEachin’s Subcommittee staff, searched 

long and hard for an example which was in Mr. Judd’s testimony 

of a tunnel that was never closed or never mitigated because of environmental regulations or laws. The example that he just gave 

about San Diego, I would request, Mr. Chairman, that you share 

the information with the staff so we can look at that, because we 

could not find any information on that example right there. 

Mr. Nicol, the Majority is going to have us think that local communities are so overwrought by border crossers and things that 

they leave behind, that border communities should be thrilled to 

surrender their rights and their decision making to the Department of Homeland Security. That is not my experience from my 

own discussions with people in my district. 

However, how do border communities you have talked to, that 

you worked with, feel about surrendering these prerogatives or 

rights, essentially against their will? Do you think the right to 

clean water or due process is red tape? Number one. Because I 

think that we are minimizing the effect on people themselves that 

live there and have lived there for generations. I would like to 

know if you could respond to that, please. 

Mr. NICOL. Thank you. I live in a border community. I live in 

McAllen, Texas, just a few miles north of the border. The general 

feeling among people who are aware of the waiver of laws that is 

in place currently for the wall is a sense of offense. That we don’t 

have the same level of legal protections that the rest of the country 

has. That someone in the interior of the Nation has the protection 

of the Safe Drinking Water Act, but the Safe Drinking Water Act 

was waived to build the border wall. All of my drinking water has 

to come through that to get to my home because all of my drinking 

water comes out of the Rio Grande. 

We live in safe communities. McAllen is one of the safest communities in Texas. El Paso is one of the safest communities in the 

United States. Border communities are not over-run horrifying, 

dangerous war zones. They are safe. They are quiet. If anything, 

they are a little boring. The idea that we need to suspend the rule 

of law, and that only our safe communities get the rule of law suspended is, frankly, offensive to many people that I know. 

Mr. GRIJALVA. And for local governments in those communities, 

those towns, those counties, how do they feel about having their 

legal requirements subject to basically irrelevance by the Department of Homeland Security and Border Patrol? 

55 

Mr. NICOL. I think it is the same basic thing. It also makes for 

a lot of legal uncertainty. You had the El Paso Water District challenge the waiver back in 2009 because they didn’t know what their 

legal framework was to draw water out of the Rio Grande, if the 

laws had been waived, if the Clean Water Act and the Safe 

Drinking Water Act had been waived. So, I think it causes a tremendous amount of difficulty. It is a very broad-brush approach to 

waive everything. 

Mr. GRIJALVA. Thank you. 

Mr. Judd, if I may, just one question. On February 2 of last year, 

San Diego’s NBPC Local 1613 said in a tweet that appears to now 

have been deleted, ‘‘It is morning in America. With new leadership 

having the will to secure the border, a Hemingway quotation follows: Certainly there is no hunting like the hunting of man, and 

those who have hunted armed men long enough and liked it, never 

really care for anything else thereafter.’’ 

This tweet was deleted. I just want to ask you, do you stand by 

that quote or are you aware of that quote, Mr. Judd? 

Mr. JUDD. I personally had that quote deleted. I made sure that 

quote was deleted. 

Mr. GRIJALVA. Why? 

Mr. JUDD. I didn’t think that quote was appropriate. 

Mr. GRIJALVA. About the hunting of man? 

Mr. JUDD. That is correct. 

Mr. GRIJALVA. Thank you. I yield back. 

Mr. WESTERMAN. The gentleman yields back. 

The Chair now recognizes the gentleman from Texas, Mr. 

Gohmert, for 5 minutes. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

Mr. Nicol, in your testimony, you said, as I read it, ‘‘laws that 

are swept aside are not merely red tape. They are critical protections that were put in place for a reason—to protect people, their 

communities, and the environment that we depend on.’’ 

Is that your belief? 

Mr. NICOL. Yes, it is. 

Mr. GOHMERT. But, apparently, it is only your belief when it 

comes to certain laws, but it is not your belief regarding laws about 

our border. Would you be happier if there were no U.S.-Mexico 

border? 

Mr. NICOL. I am concerned about a lot of different laws, 

including—— 

Mr. GOHMERT. Let me ask it again, and listen real carefully. 

Would you be happier if there were no U.S.-Mexico border? 

Mr. NICOL. No. 

Mr. GOHMERT. You would not. So, you are OK with a border as 

long as it is not enforced and there is no wall, correct? 

Mr. NICOL. The border has been enforced for a long time before 

there was a wall. The wall is not necessary for—— 

Mr. GOHMERT. Well, you are not answering my question. Because 

the fact is, when we have a national park that allows people to 

come in, drug smugglers, to use the park at will, and they destroy 

the park, they leave tons of trash, and we cannot allow our enforcement people to go out there and stop them, then that is not 

enforcing the border. 

56 

And when we put up a sign that, to me, is the most repugnant 

thing we can do to American citizens that says, look, basically, 

drug cartels have taken over our park, you will be safer if you don’t 

use this area, go north of I-10, that is completely neglecting our 

duty as the U.S. Government and our oath to protect this country. 

And I know you have such great judgment. I have certainly had 

my disagreements with Mr. Cornyn, our Senator, but isn’t it true 

you said in response to John Cornyn’s statement regarding 

Dreamers, ‘‘He forgot to add that he is a tool with no scruples and 

his head looks like a thumb with a face drawn on it.’’ Aren’t those 

your words? It was your post, wasn’t it? 

Mr. NICOL. Yes. 

Mr. GOHMERT. And another post here, ‘‘We all know Ted Cruz is 

slimy and evil,’’ and that, ‘‘if he were to crawl back under the rock 

from whence he was spawned, the world would be a better place.’’ 

That was one of your posts. But you also post that you would like 

to see more of a coming together between the sides. Isn’t that 

right? 

Mr. NICOL. Those are personal, yes. But I do feel that it would 

make far more sense to have immigration—— 

Mr. GOHMERT. All right. Well, let me ask you about this, since 

I get to ask questions. 

Another entry you had is that, ‘‘It is important to have some 

historical perspective and understand the racist reasons that our 

immigration laws were put in place.’’ 

Let me ask you, have you ever heard of MS-13? 

Mr. NICOL. Yes. 

Mr. GOHMERT. You know who they are. Have you seen the kind 

of hideous murders they have inflicted upon Americans in the 

United States? Have you seen that? 

Mr. NICOL. I have read about them, yes. 

Mr. GOHMERT. Yes. OK. And how about ISIS? You are familiar 

with who and what ISIS is, correct? 

Mr. NICOL. Yes. 

Mr. GOHMERT. And you are aware that they have made plans, 

and the FBI Director has testified that we now have ISIS in every 

state. He said there is an investigation in every state in the Union. 

Are you aware of that? 

Mr. NICOL. Yes. 

Mr. GOHMERT. And it was the FBI Director, even though people 

made fun of me for pointing out and quoting the FBI Director, he 

said that there are Middle Eastern terrorists who have changed 

their names to sound Hispanic and sneak across the U.S. border 

so that they can do damage in this country. That is also a threat. 

We also have people like Kim Jong-un that has made clear he 

wants to destroy our Nation. We also know that drug cartels’ estimated about $80 billion or so last year that they brought in that 

has done massive damage on the rule of law in Mexico. It is why 

Mexico is not one of the top 10 economies in the country. 

And, I would just suggest to you, that, hopefully, we will do as 

the Secret Service found when they raised the wall and the fence 

around the White House by 5 feet, fences and walls work. If they 

don’t, as I told the head of the Secret Service, then tear down the 

wall around the White House. They haven’t seen fit to do that. 

57 

I yield back. 

Mr. WESTERMAN. The gentleman’s time has expired. 

The Chair now recognizes the gentleman from California, Mr. 

Huffman, for 5 minutes. 

Mr. HUFFMAN. Thank you, Mr. Chairman. Thanks to the 

witnesses for being here. 

Environmental protections and bedrock environmental laws like 

NEPA are in place so that we can protect communities and the resources they depend on and provide an opportunity for public input 

into land management decisions. And, unfortunately, although I 

have heard my colleagues across the aisle many times say that 

local voices are the most important, it seems that it is only certain 

voices that matter and there is some selective listening going on. 

They seem to hear only the local voices that they agree with when 

it comes to things like national monuments and certainly with this 

rhetoric around border security we are hearing today. 

Ignoring tribal rights, community voices, and our country’s laws, 

as some are proposing, doesn’t help solve problems, but it does advance President Trump’s very authoritarian, dystopic agenda. In 

fact, today, it looks like we are having a blue light special, a twofor-one on scapegoating. We get to scapegoat environmental laws 

and Mexicans at the same time, so what an irresistible opportunity 

for this authoritarian agenda. 

* * * * * 

Mr. GOHMERT. I would ask that the gentleman’s words be taken 

down. He has impugned my motivation, and it is entirely inappropriate. It violates the rules of decorum in the House, and it is 

simply not true. I did not scapegoat any Mexicans—— 

Mr. HUFFMAN. Mr. Chair—— 

Mr. GOHMERT [continuing]. So, I ask the rule—— 

Mr. HUFFMAN [continuing]. The clock is running during Mr.—— 

Mr. GOHMERT. Yeah, he is going to have a whole time—— 

Mr. WESTERMAN. The gentleman will suspend. 

Mr. GOHMERT [continuing]. As long as it doesn’t violate the rules. 

Mr. WESTERMAN. Does the gentleman wish to take down his 

words? 

Mr. GOHMERT. Yes, I do. 

Mr. HUFFMAN. He can do whatever he would like. I haven’t 

violated any rules. 

Mr. WESTERMAN. We need to consult for just a moment. 

Can the official reporter report the words? Will the official 

reporter report the words? 

[Discussion off the record.] 

Mr. HUFFMAN. Mr. Chair, may I be heard for a point of 

clarification? 

Mr. WESTERMAN. Still waiting for counsel. We will be right back. 

Mr. HUFFMAN. I think we might be able to obviate some of the 

further delay and inquiry. 

The gentleman from Texas, when he interrupted and I did not 

yield, but he did ask a question during that point about his 

personal motivation, and I answered in the affirmative. I am happy 

to withdraw that because, frankly, my earlier point was a 

58 

rhetorical point about the effect of the hearing and not about any 

individual Member’s personal motivation. So, if withdrawing that 

colloquy, which I hadn’t yielded for in any event, but I am happy 

to withdraw it, would move us forward, I would be happy to do 

that. 

Mr. WESTERMAN. The gentleman from Texas. 

Mr. GOHMERT. If I might respond. I would gladly accept that 

withdrawal, but I hope the gentleman understands, under the rules 

of decorum, if someone uses words that impugn a Member of 

Congress’ integrity or motivation, I know it is not normally polite 

to interrupt, but if there is no challenge to have the words taken 

down while that speaker is still speaking and present, then you 

waive the right, and that was why I interrupt. Otherwise, I would 

apologize for interrupting because it was your time, but that is the 

only time I have to make clear ‘‘were you speaking directly to me?’’ 

And on the gentleman’s explanation, I appreciate it. And my 

request for his words to be taken down is withdrawn. Thank you. 

Mr. WESTERMAN. Does the gentleman wish to withdraw his 

words? 

Mr. GOHMERT. And I would ask that his time be restored too. 

Mr. WESTERMAN. Does the gentleman wish to withdraw his 

words? 

Mr. HUFFMAN. I am happy to withdraw the words as the 

gentleman just—— 

Mr. GOHMERT. Thank you. And, Mr. Chairman, I—— 

Mr. WESTERMAN. Without objection, the words are withdrawn, 

and the gentleman may resume and ask questions. 

Mr. GOHMERT. And his time be restored because he shouldn’t be 

charged for my—— 

Mr. WESTERMAN. And his time will be restored. 

Mr. GOHMERT. Thank you. 

Mr. WESTERMAN. Please add 1 minute to the clock. 

Mr. HUFFMAN. Well, thank you, Mr. Chairman and Mr. Gohmert. 

And certainly, I don’t offer any words about individual motivations, 

but my rhetorical point about the effect of this hearing being one 

of scapegoating Mexicans and the environmental laws at the same 

time, I stand by completely. 

Now, Mr. Nicol, you have already pointed out that where border 

infrastructure projects fail to fully consider impacts, local communities were left to deal with the consequences of that. And you 

mentioned eco-tourism, which is a large part of your local border 

economy. 

According to a 2011 study, nature tourism contributes roughly 

$460 million to the economy in south Texas every year. Could you 

please elaborate on the economic impacts of the border wall that 

cut off the World Birding Center? And then, maybe also speak to 

how you expect increased wall construction to impact wildlife and 

related eco-tourism that drives economic development in border 

communities. 

While you are at it, it has been suggested that protecting wildlife 

is perhaps a rationale for this wall. I found that very creative, almost as good as the one from the President about putting solar 

panels on the wall, and now suddenly, we are for renewable 

energy. This wall can mean many things to many people and, 

59 

apparently, it is now a wildlife wall to some people. I would 

appreciate your thoughts on that rationale. 

Mr. NICOL. Certainly. As far as eco-tourism is concerned, the 

wall that is south of my house was built between a World Birding 

Center that a local community established to try to tap into the 

some of the eco-tourism dollars that come to south Texas every 

year. We are in a migratory flyaway. All the birds heading north 

and south from about the Rockies to the East Coast bottle up and 

come through our area. So, in the fall and the spring, eco-tourism 

and bird watching are a tremendous part of the local economy. 

The wall that was put up between the World Birding Center and 

the adjacent wildlife refuge, which is where all the habitat for the 

birds actually is, has a gate on it. The locals were promised that 

that gate would be opened during regular business hours. It has 

never been opened. There is a sign that points to it saying, 

‘‘Pedestrian walking trail this way,’’ but the gates never open so 

the birders can’t go there. 

If the same thing is done at the Santa Ana National Wildlife 

Refuge, the National Butterfly Center, Bentsen-Rio Grande State 

Park, and World Birding Center, all of which are on the map for 

President Trump’s proposed walls, we can expect the same sort of 

thing. And even if the gate is opened, it is hard to imagine that 

very many tourists would want to go between prison bars to go see 

the birds they are interested in. It is not a very good vacation 

option. 

As far as the wildlife is concerned, the levee wall in particular 

is terrible for wildlife because it takes an easy slope and turns it 

into a sheer cliff, essentially an 18-foot tall slab of concrete. And 

when we get floods, the wildlife is trapped, so you turn a wildlife 

refuge into a wildlife deathtrap. There is no way that an ocelot can 

get over that. People get over it pretty easily. There is usually a 

pile of ladders stacked up at the end of the wall. But for something 

that can’t fly or can’t build a ladder, the wall becomes a deathtrap. 

Mr. HUFFMAN. What about the antelope that were referred to 

earlier as being impacted by illegal immigration, an antelope or 

mobile migratory animals? Does the construction of a continuous 

border wall impact the wildlife corridors that species like that 

would normally—— 

Mr. NICOL. The antelope, that was out in Arizona. I have read 

that report as well. The report did not say that it was just because 

of cross-border traffic. It was the whole package of enforcement and 

traffic that impacted those animals. So, it was also including the 

walls, the roads, patrols, helicopters, and everything else. 

Mr. HUFFMAN. Thank you. I yield back. 

Mr. WESTERMAN. The gentleman yields back. 

If you notice, votes were just called, but we want to try to get 

one more round of questioning in. And I want to recognize the 

Chairman of the Full Committee, Mr. Bishop from Utah, for 5 

minutes. 

Mr. BISHOP. Thank you. 

Let me see if I can get a few of these things in here quickly and 

change the focus back to what we are talking about. 

Mr. Arthur, very quickly, is there a conflict between the missions 

of the Interior Department and Homeland Security? 

60 

Mr. ARTHUR. They can work together, but they actually have two 

very different missions. And, quite frankly, when they do work 

together, when we do enforce our—— 

Mr. BISHOP. It works real well. 

Mr. ARTHUR. It works best, yes. 

Mr. BISHOP. But that requires personality, which is something 

we don’t—we legislate on worst-case scenario, not on best-case 

personality. 

Mr. Bell, is the violence that you are witnessing on the border 

increasing or decreasing? I knew the Krentz family. I feel bad 

about everything. Is it increasing? 

Mr. BELL. Where we have seen the access granted and the infrastructure and the road systems come in, we see less activity if 

there is less conflict. We don’t run into folks. There hasn’t been 

very much violence in our area. We do know that assault on agents 

is up, though. I belong to the Citizens Advisory Committee for our 

Nogales Border Patrol Station, and the statistics are up on that. 

And we get briefed on that regularly. 

Mr. BISHOP. OK. Mr. Judd, we are talking here not necessarily 

about a wall. We are talking about access. The Border Patrol needs 

the access that happens to be there. 

Have you served in other areas? You have served in Tucson, 

right? 

Mr. JUDD. I have. I have also served in California, Maine, and 

Montana. 

Mr. BISHOP. How many apprehensions did you have in Maine in 

a year? 

Mr. JUDD. At my station, we had maybe two a year. 

Mr. BISHOP. A little bit fewer than in Tucson. 

Mr. JUDD. Yes. 

Mr. BISHOP. Which means the history is somewhat cyclical. It 

also means that each border area is different. And having a onesize-fits-all MOU probably does not meet all the circumstances. So, 

for example, historically, San Diego is the entrance port of choice, 

until they actually waived those iconic bedrock laws and build a 

fence, and then it kind of shifted over to the Tucson Sector. 

Rio Grande actually has more, but there is a different kind of 

personality going across. Rio Grande, a lot of those illegals that are 

coming across are kids, women, but in Tucson, isn’t that mainly 

adults, males? 

Mr. JUDD. It is, yes. 

Mr. BISHOP. So, in each of these sectors, what we really need to 

have for the Border Patrol to be effective is to give them flexibility 

to meet the differences of those situations and give them access. 

This is what I really want you to talk to me about, because when 

we were down there, you explained why east-west access is so significant. If somebody is crossing the border illegally and you have 

the ability of finding that out, what is your method? What do you 

try to do to catch those people? 

Mr. JUDD. Well, what you want to do is you want to box those 

individuals in between two agents, because if you can do that, your 

effectiveness goes sky high. Whereas, if you are chasing from behind, the chances of you actually catching those individuals are 

nearly none. 

61 

Mr. BISHOP. So, to do that, you need different kinds of access 

points, one at the border wall, one further up there, further up 

again. You need to be able to go behind the group as well as in 

front of the group. 

Mr. JUDD. To be effective, we have to have those. 

Mr. BISHOP. And that is where the east-west access becomes 

critical. 

Mr. JUDD. Absolutely. 

Mr. BISHOP. Do you have a problem with maintenance of access 

routes that you already have? 

Mr. JUDD. No, we don’t. 

Mr. BISHOP. All right. But you do need significantly more, as we 

were talking, were we in the Coronado at the time? 

Mr. JUDD. We were, yes. 

Mr. BISHOP. All right. Is there the ability of getting that access 

point right along the border so you can have somebody behind as 

well as somebody in front? 

Mr. JUDD. We could absolutely build a border road that would 

help us be effective. 

Mr. BISHOP. Is it there now? 

Mr. JUDD. It is not. 

Mr. BISHOP. Why not? 

Mr. JUDD. The environmental laws, frankly. 

Mr. BISHOP. You mean to tell me that sometimes it takes so long 

to get approval from the land managers, you don’t even have time, 

you don’t even ask the question? 

Mr. JUDD. Oftentimes, we just don’t even want to go through the 

process because we know what the outcome is going to be. 

Mr. BISHOP. Borderland has a specific meaning, correct? 

Mr. JUDD. It does, yes. 

Mr. BISHOP. It is 100 miles. 

Mr. JUDD. Yes. 

Mr. BISHOP. It is different. And some of the frustrations I have 

of, obviously, people who simply, I think, try to put their head in 

the sand and ignore that there is an opinion. Sometimes we make 

a decision that if we are giving Homeland Security the ability of 

making these kinds of decisions on local communities, aren’t we already doing that with the Department of the Interior and the 

Department of Agriculture? Aren’t they already making these arbitrary decisions on these local communities? 

Mr. JUDD. They have, yes. 

Mr. BISHOP. The difference is not significant, except that the 

difference is national security has an interest in those areas. The 

difference is the topography. So, that Tucson Sector is 80 percent 

controlled by the Federal Government, and almost half of that is 

in wilderness area. You don’t find that along the Texas border. You 

don’t find that in Maine or Montana. 

Mr. JUDD. No, you don’t. 

Mr. BISHOP. What we need to do is make sure that we give flexibility for access. Access has to be critical. If the Border Patrol does 

not have access, we cannot do our job with security. It is not the 

same thing as a wall. But that access becomes significant, and our 

environmental laws inhibit that access from taking place. 

I yield back, in 1 second. 

62 

Mr. WESTERMAN. Great job. The gentleman yields back. 

There are several people still on the list to ask questions, so the 

Committee will stand in recess, and we will reconvene after votes. 

[Recess.] 

Mr. WESTERMAN. The Committee will reconvene. 

I now recognize the gentleman from Arizona, Mr. Gosar, for 5 

minutes of questions. 

Mr. GOSAR. Thank you, Mr. Chairman. 

Mr. Judd, regarding Border Patrol agents that are under scrutiny for sabotaging water stashes set up by humanitarian groups 

and coyotes, who are aiding the commission of criminal crimes, 

what is the procedure for Border Patrol agents who find humanitarian groups or supply stashes along and around the border? 

Mr. JUDD. When you look at those pictures, what they are not 

telling you is why we would dispose of that water. If that water 

heats up in the desert, it is actually a lot more dangerous to drink 

extremely heated water than what it is if you don’t have that water 

at all. 

So, what our agents are doing is they are actually taking a 

humanitarian effort to try to save these individuals. And it is on 

record to the extraordinary length that we have gone to save individuals, including an agent that went into the Colorado River and 

lost his life trying to save somebody who had crossed the border illegally. We have procedures in which we try our best to be as humanitarian to those that we come in contact with at all times. 

Mr. GOSAR. Are the agents actively dismantling supplies for 

coyotes and individuals being smuggled? 

Mr. JUDD. Absolutely not. 

Mr. GOSAR. About how much of the waste and garbage throughout the borderlands comes from these humanitarian groups and the 

human and drug smugglers that they enable? 

Mr. JUDD. A great deal. In fact, the vast majority of all the trash 

that is left in the desert is left from smugglers, the people that 

cross the border illegally, and from these humanitarian groups that 

leave these water jugs and these food piles around. 

Mr. GOSAR. I have been to the border many times and have 

witnessed it firsthand. 

In your view, would Border Patrol agents benefit from a clear 

plan and procedure for combating supposed humanitarian groups 

that are aiding and abetting and smuggling environmental pollution in felony border crossings? 

Mr. JUDD. Well, in fact, under the Obama administration, we 

were not able to enter into these camps to extricate these individuals that crossed the border illegally, even if we had the foot sign 

that clearly showed that illegal aliens were entering into these 

humanitarian camps. 

We know that these groups are helping people cross the border 

illegally, and that is just flat out against the law. If we are there 

to help for humanitarian purposes, that is perfect, but you can help 

through humanitarian purposes by reporting to the Border Patrol 

that people crossed the border illegally and let them know what 

hospital you are taking them to. But in reality, what they are doing 

is they are furthering the entrance of these individuals. 

Mr. GOSAR. Well, to the law, they are aiding and abetting, right? 

63 

Mr. JUDD. They are. 

Mr. GOSAR. OK. Mr. Nicol, you stated in your written testimony 

that there is no clear need to waive laws, environmental or otherwise, to facilitate Border Patrol activities. To make clear for the 

record, how many years of experience do you have in border 

security law enforcement? 

Mr. NICOL. As a law enforcement officer, none. 

Mr. GOSAR. Really? Can you say that again for the record? 

Mr. NICOL. None. 

Mr. GOSAR. Mr. Judd, in your decades of serving as a Border 

Patrol agent, do you agree with Mr. Nicol’s statements that the 

2006 MOU grants sufficient access to our agents to successfully 

deter illegal activity on the border? 

Mr. JUDD. The way it is being implemented at this time, 

absolutely not. 

Mr. GOSAR. Would there be any means to change that that you 

would find would suffice to actually work? 

Mr. JUDD. No. It needs to be rewritten. 

Mr. GOSAR. Thank you. 

Mr. Bell, your family has ranched land along the border for some 

80 years. As someone who lives and works on the borderlands, your 

testimony included mention of violence, murder, and threats. Since 

the MOU was signed in 2006, have you seen these problems 

disappear? 

Mr. BELL. We have seen things get better on the border as far 

as that is concerned. When we see infrastructure come in along the 

border, we actually see conditions get better. We see interactions 

with illegal border crossers diminish. We don’t see the drug smugglers as much. But there are those chance occasions when you run 

into somebody and you don’t know who you are confronting, so—— 

Mr. GOSAR. Can you give me a timeline? You have seen it get 

better, let’s say around November of 2016 and since that time? 

Mr. BELL. Yes, I have seen it actually get better prior to that, 

actually. When they started to get these liaisons with the Forest 

Service in with the Border Patrol and actually work on projects to 

get roadways implemented on the border and infrastructure, like 

RVSS towers and IFT towers. Those were all done in coordination 

with the Forest Service. 

Mr. GOSAR. So, has the deterrence been sufficient as Mr. Nicol 

would state? 

Mr. BELL. No. There is still a lot of smuggling going on in the 

area. There are still a lot of groups coming through the area. And 

in fact, they are using the areas where the agents have less capability of patrolling. Right now, the biggest area on our ranch where 

drugs are being smuggled is through the wilderness area. 

Mr. GOSAR. Oh, absolutely. I thank the gentleman. 

My time has expired. I appreciate it. 

Mr. WESTERMAN. The gentleman’s time has expired. 

We will now move into a second round of questions, and I 

recognize myself for 5 minutes. 

Mr. Judd, can you clarify what types of challenges you have that 

you face in order to conduct maintenance on tactical infrastructure? 

This is infrastructure that is already in place. 

64 

I know when I was at the border, we were in a vehicle, looked 

like it had new tires on it, but we spent part of the time changing 

a flat on the vehicle driving along the road that was on the border. 

Mr. JUDD. The main issue that we have with maintenance, if we 

have a road, we can maintain that road, to answer Chairman 

Bishop’s question. But the problem is, is we don’t have north-south 

access roads that allow us to get to the border roads that allow us 

to maintain it in a timely fashion. 

To drive a road grader from, let’s just say, the Naco or the Brian 

Terry Memorial Border Patrol Station to the Coronado National 

Forest, as opposed to driving that same road grader on the highway, taking it into the forest and then having that north-south 

access road, greatly diminishes the time. So, we have to have access to those roads. 

Mr. WESTERMAN. And, Mr. Arthur, in Mr. Nicol’s testimony he 

talked about the decrease in the amount of drugs coming over the 

southern border. Is that true? I thought there has actually been an 

increase in fentanyl and methamphetamine? 

Mr. ARTHUR. I don’t have the numbers in front of me, but I can 

tell you right now that the amount of fentanyl—and again, I cannot 

overstate the toxicity of this drug—the amount of fentanyl that we 

have seen has actually increased significantly month to month in 

the first 4 months of Fiscal Year 2018. It is almost as much as we 

saw in all of Fiscal Year 2017. 

Mr. WESTERMAN. OK. And, Mr. Judd, recently when I traveled 

to the Border Patrol’s Tucson Sector with Mr. Bishop, we witnessed 

the various effects of illicit border crossing activity. We were able 

to see firsthand how transnational criminal organizations utilize 

gaps in our border security to circumvent criminal operations. We 

saw these hideouts in the hills where the scouts operate from. And 

we know this can often lead to the creation of tunnels that are used 

for human trafficking and smuggling of narcotics. And I found out 

something else interesting when I was there, that the city of 

Nogales treats the sewage from Mexico and drugs actually get 

smuggled through the sewer system. 

Can you lead us through the steps your agents must take after 

the discovery of a cross-border tunnel and what it takes to remediate that tunnel or fill it in? 

Mr. JUDD. Yes, it is a very difficult and lengthy process. We have 

to contact, again, as per the National Environmental Policy Act, or 

NEPA, we have to contact several different agencies in order just 

to fill that tunnel in, which is what we are hoping to do. In remediating it, you are trying to take it back to its natural state. And it 

takes weeks, even months, to be able to take that tunnel back to 

its natural state because of the bureaucracy that is involved with 

these laws. 

Mr. WESTERMAN. Mr. Nicol, a report on the Cabeza Prieta 

National Wildlife Refuge found almost 8,000 miles of ad hoc roads 

that were associated with illegal border crossings, and recommended Border Patrol be allowed to access the refuge and install tactical infrastructure. Since you believe the Border Patrol 

and security infrastructure are ineffective, what would you do to 

reduce the number of and the amount of damage that these 

unauthorized roads cause in the refuge? 

65 

Mr. NICOL. Many of those roads are being created by east-west 

traffic, not just north-south traffic. One of the remediation efforts 

that has been undertaken at Cabeza Prieta and at Organ Pipe 

Cactus National Monument has been to retire and repair unneeded 

roads, because those are used by smugglers the same way as they 

are used by Border Patrol agents. So, reducing the number of roads 

would not only help to remediate the damage, but it would also 

make it so that when you do have cross-border traffic, it is more 

concentrated in specific areas, which would in turn make it easier 

for Border Patrol to intercept. 

Mr. WESTERMAN. Mr. Judd, you spent a lot of time in this area. 

Do you think these roads are mainly east-west or do you see northsouth? The image we saw earlier looked like a vast web of ad hoc 

roads. 

Mr. JUDD. The roads that Border Patrol agents use are east-west, 

but the roads that the smugglers use are all north-south. I mean, 

they might go east-west for a couple hundred yards until they go 

north-south again, but they are all north-south. 

Mr. WESTERMAN. OK. My time has almost expired. 

I will now recognize Mr. Beyer for 5 minutes. 

Mr. BEYER. Thank you, Mr. Chairman, very much. Mr. 

Chairman, we are here today to talk about the border wall while 

the Senate is talking about immigration legislation, so I think it is 

only fair that I take a few minutes to express my extreme disappointment with how disingenuous this immigration conversation 

has been in Congress. I think the American public is being spun, 

confused, misled by the President and Republican congressional 

leadership, so let me set the record straight. 

Number one, President Trump told us that Mexico would pay for 

the wall. Number two, Mr. Trump ended protection for Dreamers. 

Number three, now President Trump is insisting that we agree on 

his plan to limit immigration or else. 

Trump insists he is a dealmaker, but nothing could be further 

from the truth. He says he wants a bipartisan deal, but then he 

says he won’t support any that are brought to him. He says Mexico 

will pay for the wall. Now, he is begging for us to fund it. He says 

he wants to protect Dreamers, but he won’t do it unless Congress 

agrees to limit legal immigration. And he is holding immigration 

conversations hostage. 

This is reckless, period. The anti-immigrant right wants to build 

a border wall despite efforts that experts have said already decried 

because it doesn’t make us any safer. And the anti-immigrant right 

wants to limit immigration, which is a fundamentally different conversation from anything that we have had before. No one was talking about this before because it is truly radical. 

Our economy needs immigration to be competitive and a lead. 

We need to protect our Dreamers, and nearly 80 percent of 

Americans and a vast majority of Republicans agree this must happen. We need to look at our high-skilled immigrants and per 

country caps, for example, House Bill H.R. 392. We need the 

American Hope Act, a meaningful bill for Dreamers, or my bill with 

Congressman Espaillat and Bonamici, the Protecting Sensitive 

Locations Act, or Congresswoman Chu’s Reuniting Families Act. 

We need meaningful discussion on temporary protective status. 

66 

Congressman McGovern has a bill pushing this. We need meaningful treatment toward refugees, like Congressman Pascrell and 

Cicilline have been pushing. And we need meaningful access to 

health services, like Congresswoman Luja ́n Grisham has been 

advocating. 

But that is not our conversation. We are not being heard. The 

scared children and families are not being heard. Arguments about 

merit ignore that we already have merit in our system. Yes, it 

needs tweaks. The skills-based visa system is not perfect, but that 

is not the conversation we are having. Family reunification is now 

called chain migration, but we all understand the importance of 

family reunification. President Trump’s own wife brought her 

parents here through that family reunification system. 

So, let’s be real. Let’s eliminate the coded language that tries to 

make us more comfortable with a nativist and even racist 

immigration policy. Look, we are all children, grandchildren, great 

grandchildren of immigrants, mostly when there were little or no 

immigration restrictions, and there were certainly no walls. 

Mr. Chairman, that is the end of my formal statement, but I do 

have a question or two. 

Mr. Nicol, in your testimony, you mention that the waiver to 

build roads and public lands is not only environmentally destructive, but can be counterproductive to border security efforts. We 

have heard a lot about the east-west walls needed just on the side. 

Can you give an example how the public roads could be counterproductive? 

Mr. NICOL. Probably the best documented example is in the San 

Bernardino National Wildlife Refuge. They are in an area that is 

very fissured and eroded and has deep crevices that someone cannot drive through. A patrol road was built along the southern edge 

of the refuge. That patrol road involved filling in lakes that are 

used by endangered fish. It didn’t work very well because they got 

their bulldozers stuck when they tried to just dump dirt into it. But 

once the road was built, the refuge reported, in 2008, that that 

road was being used by smugglers, and that areas that previously 

had not seen any cross-border vehicle activity because one could 

not drive a vehicle through, were now being used by smugglers. 

There may well be other examples that have not been as well 

documented. That one, because you have land banners on the 

ground observing it, has been. 

Mr. BEYER. One more question. In Mr. Judd’s written testimony, 

he described the need for some Border Patrol agents to use horses 

to patrol public lands as ‘‘absurd.’’ As someone who lives on the 

border, do you think it is absurd that the Border Patrol may need 

to use horses as transports in some cases? 

Mr. NICOL. For me? 

Mr. BEYER. Yes, Mr. Nicol. 

Mr. NICOL. Sure. I think that it makes a lot of sense in certain 

areas. It doesn’t make sense to create a road when a horse is a 

more effective way to get across that terrain. There are some very 

rugged parts of the border where a horse is just the most appropriate and most effective way to get from point A to point B. 

Mr. BEYER. Mr. Chairman, I yield back. 

Mr. WESTERMAN. The gentleman yields back. 

67 

The Chair now recognizes the gentleman from Arizona, Mr. 

Gosar, for 5 minutes. 

Mr. GOSAR. Mr. Judd, Mr. Nicol made a comment about it is 

easier to pick up trash than building a wall. You are familiar with 

lower Santa Cruz, right? 

Mr. NICOL. I am, yes. 

Mr. GOSAR. What happens in the lower Santa Cruz? Mexico is 

high ground. We are low ground in Arizona. So, what ends up happening, we get this episodic flooding, right? 

Mr. JUDD. And we get a lot of trash washed into our areas. 

Mr. GOSAR. Not just trash, but sewage, right? 

Mr. JUDD. Yes, correct. 

Mr. GOSAR. OK. Mr. Arthur, when we start looking at disease, 

I would talk about trash with disease, is the antibiotic-resistant 

tuberculosis advancing in the United States or receding? 

Mr. ARTHUR. I know that we have seen incidents of antibiotic 

tuberculosis in the United States. The source of it, I cannot actually identify, but I believe it is increasing. 

Mr. GOSAR. Well, epidemiology-wise, in Arizona, it is moving farther north. OK? We have tons of illegals that come in, because we 

are one of the ones that actually have the treatments for that. 

So, where I am going with this is, the lower Santa Cruz, we 

made a comment about a wall. So, Mr. Judd, if we were to build 

a management of water with Mexico, would that actually be as 

good as a wall? 

Mr. JUDD. I am sorry? 

Mr. GOSAR. Like an infrastructure project where we actually 

mitigate the process and direct water along the mitigation, along 

the lower Santa Cruz. 

Mr. JUDD. Absolutely. What we need to do is we need to be able 

to keep anything that is flowing from Mexico into the United 

States that could be bringing trash, sewage, or anything like that. 

And whether that is a wall, whether that is building an infrastructure with Mexico, we just need to be able to keep that out from the 

United States. 

Mr. GOSAR. Let me ask you another question. Maybe you can’t 

answer, but I have the answer. When you do something along the 

international border between Mexico, the United States, and 

Arizona, who helps pay for it? 

Mr. JUDD. The United States does, as far as I know. 

Mr. GOSAR. Can you say it? What is the other country south of 

us? 

Mr. JUDD. I don’t know very much that Mexico pays for anything. 

Mr. GOSAR. No, but Mexico would pay for that on an infrastructure—— 

Mr. JUDD. Oh, yes. In that case, yes. 

Mr. GOSAR. Absolutely, so once again, President Trump said, ‘‘no, 

Mexico would pay for it,’’ well, this is a creative way of looking at 

something that actually mitigates trauma to our infrastructure aspects that both sides take care of. And it is even better than a wall. 

Mr. JUDD. Yes. 

Mr. GOSAR. We can actually extrapolate that to Nogales because 

of the wastewater problem. Once again, we have rampant sewage 

coming into the United States from Mexico. When we do the 

68 

wastewater aspect, we are the low ground, they are high ground. 

So, we can actually mitigate this and it makes it something that 

both countries mitigate. 

Oh, by the way, let me ask you the question. There is also another tribe down there, right, the Tohono O’odham that are along 

that border as well? 

Mr. JUDD. That is correct, yes. 

Mr. GOSAR. So, this might be an interesting facade in regards to 

a mitigation on how we look at border security with an infrastructure project, would it not? 

Mr. JUDD. It would, yes. 

Mr. GOSAR. Wow. Interesting. But I guess I am the racist, 

because that is what was said here. It is disingenuous for my colleagues on the other side to say that. Over and over again, that is 

all I hear. 

You know what, there is an old analogy: ‘‘Look in the mirror. The 

enemy is me.’’ 

I yield back. 

Mr. WESTERMAN. The gentleman yields back. 

We will do one more round of questioning. 

Mr. Arthur, you stated that you observed environmental concerns 

in your recent visit to the Rio Grande Valley Sector that hinders 

border security. Can you please explain the problems that agents 

face there? We have been talking about the Tucson Sector in 

Arizona, but let’s look at some other areas along the border. 

Mr. ARTHUR. The main issue that I saw when I was down there 

was carrizo cane. Carrizo cane is an invasive species that grows 

along the banks of the Rio Grande River. And to quote The New 

Yorker, ‘‘it forms a grassy forest along the border within which visibility is roughly 12 to 24 inches and makes an excellent hiding 

space.’’ It is also a woody substance. It is very difficult to get 

through. Once smugglers, once any sort of cross-border traffic, 

enter that cane, it is next to impossible to find it. There are cane 

eradication projects, but the cane remains. And for some reason, 

nothing has been done. The curious thing is that when I stood on 

the bluffs of Roma, Texas, and I stared across the river at Ciudad 

Miguel Alema ́n, I believe it is, I actually saw Mexican workers cutting the cane on the other side of the border, when I looked down 

and I saw the cane growing along our own border. I don’t know 

why we still have it. 

Mr. WESTERMAN. Mr. Nicol, in your opening statement, you mentioned the San Bernardino National Wildlife Refuge as an example 

where border security infrastructure has failed. But you failed to 

note that Border Patrol’s access to the refuge must be negotiated 

at the supervisor’s level on a case-by-case basis. 

Do you think that if Border Patrol had more immediate access 

to the refuge’s roads, it would deter illegal immigration and drug 

smugglers from using those roads? 

Mr. NICOL. I think that the interaction between the land management agencies and Border Patrol for any kind of interdiction 

efforts where they are both having jurisdiction is critical. 

Mr. WESTERMAN. I want to change the format here just a little 

bit. We asked a lot of questions, but there may be something on 

69 

your mind that you think the Committee needs to hear that we 

haven’t asked. 

Mr. Bell, I want to start with you. Are there any other issues regarding border security, environmental laws, regulations and 

access that you think we need to hear? 

Mr. BELL. Well, it just doesn’t stop with getting access to the border and waiving rules. We still need other things. We have to make 

sure there are boots on the ground. We have to make sure that we 

have aerial assets. We have to make sure they have the technology. 

All those things coupled together. But it doesn’t stop there either. 

We need to make sure there is the infrastructure in place in the 

courts that allow for timely prosecutions and a judicial system that 

is willing to put out consequences. Only then can we really see a 

change if we impose consequences on folks. 

Mr. WESTERMAN. Being from Arkansas and making a trip down 

to the border like I did recently, it was really eye-opening to me 

the vastness of the land there, the issues that the agents face, the 

obstacles that are in their way. 

Mr. Judd, I want to ask you, is there something else you think 

the Committee should know that would enhance the Border 

Patrol’s ability to do their job in regards to rules and regulations 

and environmental policy that currently is on the books? 

Mr. JUDD. Absolutely. I think that the main issue that we currently face is the access that we have to these public lands. Horse 

patrol is extremely important, and we always have to have horse 

patrol. But if we cannot respond in a timely manner to activity that 

is currently happening on the border, we are never going to be able 

to control the border and we are never going to be able to secure 

the border. Without that access, and without us being able to stop 

those people from entering into the country, we will never be able 

to secure the border. 

Mr. WESTERMAN. Another thing I noticed there was that it is a 

system of protection with walls and roads and remote-sensing 

equipment. And access is a critical component of that. Even if you 

have a wall in a remote area, people could figure out how to breach 

that. And if you can’t access it, you can’t stop them. 

Mr. Arthur, do you have anything to add to that on anything the 

Committee should know that you haven’t had a chance to tell us? 

Mr. ARTHUR. Absolutely. I would commend to the Committee 

Section 118, Division C, Title I of the Securing America’s Future 

Act. It will respond to a lot of the issues that Agent Judd and Mr. 

Bell have raised today about Border Patrol agents having their 

hands tied. Basically, what it would do is it would waive a variety 

of laws in very critical situations when Border Patrol needs to get 

access and needs to provide crucial infrastructure along the border. 

In fact, I would expand it to include all laws so that state laws 

are not able to stop this critical work. 

Mr. WESTERMAN. The Chair now recognizes Mr. Beyer for 5 

minutes. 

Mr. BEYER. Thank you, Mr. Chair, very much. 

Mr. Nicol, I want to ask you about flooding. My friend Mr. Gosar 

talked about Nogales. There is the waiver authority in the border 

wall. What happened in 2008 in Nogales? 

70 

Mr. NICOL. In 2008, seasonal monsoon rains that hit this area 

every 3 to 5 years came through Sonora and Nogales, Arizona. 

Rainfall that goes kind of from uphill in Mexico to downhill into 

the United States was dammed by the border wall that separates 

the two cities. 

In addition to the wall above ground, there had been a wall built 

below ground, without discussion with the International Boundary 

Water Commission, that backed up water that was going through 

the drainage culvert underneath and caused the road above to 

heave up so that water was flowing along the top and pouring out 

of the ground. Water on the Mexican side was about up to the door 

frames. On the U.S. side, it was ankle deep. Hundreds of buildings 

were damaged and two people drowned in Mexico. 

After that, there were efforts to retrofit border walls where they 

cross washes, but after that retrofitting occurred in 2011, water 

backed up behind a section of border wall in Organ Pipe Cactus 

National Monument, a section that had been retrofitted. It then 

went over the top of the obstruction, carved out the foundation of 

the wall, and blew out a 60-foot wide section. We were told that 

that was an error and would not occur again, but in 2014 it occurred again, just outside of Nogales. 

Mr. BEYER. Would a NEPA analysis have made any difference in 

Organ Pipe National Monument or Nogales? 

Mr. NICOL. More than likely, because the land managers at 

Organ Pipe, before the wall went up, foresaw that walls were going 

to obstruct debris that would be going down awash during a flood. 

They actually commissioned a channel morphology report to be 

done as a baseline so they could see how it changed before the wall 

and after the wall. So, they saw it coming. 

Mr. BEYER. In my statement the last round, I complained about 

how candidate Trump and President Trump had promised that 

Mexico was going to pay for the wall. In his Fiscal Year 2019 budget we just got the other day, it has an $18 billion request for building the border wall across the U.S.-Mexico border, including 65 

miles in the Rio Grande Valley. We all know that initial estimates 

tend to go way up. But my friend, Mr. Gosar, made some comment 

about how Mexico was actually paying. 

I was going to ask Congressman Gosar, but he left, anyone understand what he said and could explain that to me, how currently 

we are expecting Mexico to pay for this wall, or some parts of it? 

This is a friendly question. It would have been a friendly 

question for him. 

Mr. ARTHUR. If I could, Mr. Beyer, I believe that the statement 

had to do with levee walls being built on either side of the border. 

And if there were to be a levee on the United States side and a 

levee on the Mexican side, that, in fact, would be a border wall that 

Mexico would pay for. 

Mr. BEYER. OK. Do we anticipate that much of the remaining 

wall that has to be built along the Mexican border is going to be 

these parallel levees? 

Mr. ARTHUR. That I can’t answer. But it actually goes exactly to 

the point that Mr. Nicol made, because what he was saying was, 

if you put a wall on one side and you don’t have a wall on the 

other, you end up having a flood control problem. If you cure the 

71 

flood control problem, you cure it on both sides, and that is one 

way that you would alleviate the problem. 

Mr. BEYER. But we are also depending on Mexico deciding that 

they have to build a wall on their side. 

Mr. ARTHUR. As I said, I was surprised to see the Mexicans— 

there seems to be this impression that the Mexicans don’t care 

about border security. This is a real bread-and-butter issue for 

them because they don’t want the gangs in their country either. 

That is why I saw them cutting the carrizo cane in Ciudad Miguel 

Alema ́n. They don’t want this, so, quite frankly, it is possible that 

that could happen. 

Mr. BEYER. Thank you. 

Mr. Nicol, you talked about the Tohono O’odham Nation. It is a 

long history with the Border Patrol. Nevertheless, I understand 

that a waiver is used to construct a vehicle barrier across their 

land. Can you describe how that waiver affected the Tohono 

O’odham Nation? 

Mr. NICOL. They have complained that it has made it more difficult for them to interact with tribal members on both sides of the 

border. Their nation pre-exists the border being placed there. It restricts access to sacred sites and to family on the south of the 

border. And they have come out very strongly against converting 

that vehicle barrier into a pedestrian barrier as has been proposed. 

Mr. BEYER. OK. Mr. Chairman, I yield back. Thank you. 

Mr. WESTERMAN. The gentleman yields back. 

I, again, want to thank all the witnesses for your valuable testimony, and the Members, to those that are still here, for our questions. The members of the Committee may have some additional 

questions for the witnesses, and we will ask you to respond to 

these in writing. 

Under Committee Rule 3(o), members of the Committee must 

submit witness questions within 3 business days following the 

hearing by 5:00 p.m., and the hearing record will be held open for 

10 business days for their responses. 

In closing, I ask unanimous consent that the following items be 

entered into the record: A November 9, 2017, Congressional 

Research Service Report on Federal and Indian Lands on the U.S. 

Mexico Border. And as a point of clarification, a Washington Post 

article, and articles from The Daily Signal, and a document from 

the Center for Immigration Studies that address the Southern 

Poverty Law Center’s allegations about the Center for Immigration 

Studies. 

Without objection, so ordered. 

If there is no further business, without objection, the 

Subcommittee stands adjourned. 

[Whereupon, at 12:43 p.m., the Subcommittee was adjourned.] 

72 

[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

Rep. Grijalva Submission 

SENT BY E-MAIL 

February 14, 2018 

Hon. Bruce Westerman, Chairman 

Hon. A. Donald McEachin, Ranking Member 

Committee on Natural Resources 

Subcommittee on Oversight and Investigations 

Dear Chairman Westerman and Congressman McEachin: 

I am writing to request that the attached research brief be read into the record 

for the hearing on ‘‘The Costs of Denying Border Patrol Access: Our Environment 

and Security’’ scheduled for 10:00 a.m. on Thursday February 15, 2018. Our 

statement summarizes findings from seven years of research on interagency cooperation on the U.S. Mexico Border conducted by my colleagues and me at the 

University of Arizona. We hope that the information we provide is of help to the 

subcommittee’s deliberations. If members have questions or want further clarification on our research brief, we would be glad to respond to any requests. 

Sincerely, 

KIRK EMERSON, 

Professor of Practice 

School of Government and Public Policy 

University of Arizona 

[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE

COMMITTEE’S OFFICIAL FILES]

Rep. Grijalva Submission 

—Research Brief—‘‘Interagency Cooperation on the U.S. 

Mexico Border,’’ University of Arizona, February 14, 2018. 

Rep. McEachin Submission 

—Southern Poverty Law Center, article titled, ‘‘Center for 

Immigration Studies,’’ accessed February 15, 2018. 

Rep. Westerman Submissions 

—The Daily Signal, article titled ‘‘The Southern Poverty Law 

Center Almost Got Me Killed. Why Does the Media Still 

Propagate Its ‘Hate Map’?’’, September 5, 2017. 

—The Daily Signal, article titled, ‘‘CNN’s ‘Hate Groups’ Map 

Puts Conservative Lives at Risk,’’ July 13, 2017. 

—Letter addressed to House Committee on Natural Resources, 

Subcommittee on Oversight and Investigations staff from 

Carol Hardy Vincent, Specialist in Natural Resources Policy, 

Congressional Research Service, dated November 9, 2017. 

—Center for Immigration Studies, article titled ‘‘Immigration 

and the SPLC,’’ March 11, 2010. 

—The Washington Post, article titled ‘‘How labeling my 

organization a hate group shuts down public debate,’’ March 

17, 2017. 

Æ