Southwest Border: More Timely Border Patrol Access and Training Could Improve Security Operations and Natural Resource Protection on Federal Lands
Released: 2010-10-19T00:00:00

Letter

Background

The southwestern borderlands region contains many federally managed lands and also accounts for over 97 percent of all apprehensions of undocumented aliens by Border Patrol. Over 40 percent of the United States-Mexico border, or 820 linear miles, is managed by Interior’s land management agencies and the Forest Service. Each of these land management agencies has a distinct mission and set of responsibilities: The Bureau of Land Management manages federal land for multiple uses, including recreation; range; timber; minerals; watershed; wildlife and fish; natural scenic, scientific, and historical values; and the sustained yield of renewable resources.

The Park Service conserves the scenery, natural and historical objects, and wildlife of the national park system so they will remain unimpaired for the enjoyment of this and future generations.

The Fish and Wildlife Service preserves and enhances fish, wildlife, plants, and their habitats, primarily in national wildlife refuges.

The Forest Service manages lands for multiple uses, such as timber, recreation, and watershed management and to sustain the health, diversity, and productivity of the nation’s forests and grasslands to meet the needs of present and future generations.

Border Patrol’s mission is defined by the Immigration and Nationality Act, as amended, which gives the Secretary of Homeland Security the power and duty to control and guard the boundaries and borders of the United States against the illegal entry of people who are not citizens or nationals. To fulfill this mission, Border Patrol agents patrol federal and nonfederal lands near the border to find and apprehend persons who have illegally crossed the U.S. border. Agents carry out this mission primarily between ports of entry, located in cities such as El Paso, Texas, and San Ysidro, California, and have the authority to search, interrogate, and arrest undocumented aliens and others who are engaging in illegal activities, such as illegal entry and smuggling of people, drugs, or other contraband. Border Patrol is organized into nine sectors along the southwestern border. Within each sector, there are stations with responsibility for defined geographic areas. Of the 41 stations in the borderlands region in the 9 southwestern border sectors, 26 have primary responsibility for the security of federal lands in the borderlands region, according to Border Patrol sector officials.

Apprehensions of undocumented aliens along the southwestern border increased steadily through the late 1990s, reaching a peak of 1,650,000 in fiscal year 2000. Since fiscal year 2006, apprehensions have declined, reaching a low of 540,000 in fiscal year 2009. This decrease has occurred along the entire border, with every sector reporting fewer apprehensions in fiscal year 2009 than in fiscal year 2006. The Tucson Sector, however, with responsibility for central and eastern Arizona, continues to have the largest number of apprehensions (see fig. 2). Border Patrol shares with land managers data on apprehensions and drug seizures occurring on federal land, providing such information in several ways, including in regularly occurring meetings and e-mailed reports.

Border Patrol measures its effectiveness at detecting and apprehending undocumented aliens by assessing the border security status for a given area. The two highest border security statuses—“controlled” and “managed”—are levels at which Border Patrol claims the capability to consistently detect entries when they occur; identify what the entry is and classify its level of threat (such as who is entering, what the entrants are doing, and how many entrants there are); effectively and efficiently respond to the entry; and bring the situation to an appropriate law enforcement resolution, such as an arrest. Areas deemed either “controlled” or “managed” are considered by Border Patrol to be under “operational control.”

Patrol agents-in-charge of Border Patrol stations aim to achieve operational control of their jurisdictions by deploying a mix of personnel, technology, and tactical infrastructure, such as vehicle and pedestrian fences, in urban and rural areas along the border. These activities are part of DHS’s Secure Border Initiative—a multiyear, multibillion dollar program aimed at securing U.S. borders and reducing illegal immigration. Since the program began in 2005, Border Patrol has nearly doubled the number of agents along the northern and southern U.S. borders to 20,200, with more than 17,000 agents (85 percent) on the southwestern border. According to Tucson Sector Border Patrol officials, having more agents has allowed the agency to patrol additional areas, such as remote federal lands. As part of routine operations to detect undocumented aliens, agents in remote areas typically travel on roads near the border—generally those that parallel the border east to west—several times a day in search of signs of illegal traffic, such as footprints.

In addition to the increase in the number of agents along the southwestern border over the last 5 years, DHS has spent about $1.6 billion to provide technological resources in the borderlands region as part of the Secure Border Initiative. These resources include surveillance technologies, such as underground sensors, cameras, and radar, among other things. For example, to assist agents in detecting illegal entries, Border Patrol uses mobile surveillance systems (see fig. 3). These systems are mounted on trucks outfitted with towers that have infrared cameras and live video feeds for detecting suspected undocumented aliens. According to Border Patrol field agents, once an entry is detected, agents monitoring a system can direct other agents to respond and apprehend the suspected undocumented aliens. As illegal traffic shifts within a station’s area of operation—such shifts can occur daily—agents can move the mobile surveillance systems as needed.

In addition to increasing the number of agents and technological resources along the border, DHS has installed hundreds of miles of tactical infrastructure as part of the Secure Border Initiative. Specifically, as of April 2010, the department had completed 646 of the 652 miles of border fencing it committed to deploy along the southwestern border, including pedestrian fencing and permanent vehicle barriers (see fig. 4). According to a Tucson Sector Border Patrol official, pedestrian fencing is typically located near urban areas and is designed to prevent people on foot from crossing the border. Vehicle barriers consist of physical barriers meant to stop the entry of vehicles; almost all the fencing on federal lands along the southwestern border consists of vehicle barriers.

Border Patrol’s strategy emphasizes border enforcement in urban and populated areas, which can divert large concentrations of illegal traffic to outlying areas—including federal lands—where Border Patrol believes its agents have more time to detect and apprehend undocumented aliens attempting to cross vast and remote landscapes. A consequence of this strategy, however, is an impact on natural, historic, and cultural resources on federal lands—resources that land management agencies are charged with conserving, preserving, and protecting. According to a 2003 Interior report, endangered species and their habitats are potentially being irreversibly damaged from this illegal activity.

In addition to damage caused by undocumented aliens traversing environmentally sensitive lands, Border Patrol’s deployment of personnel, technology, and infrastructure resources on federal lands can also have negative impacts on certain plants and wildlife that are protected under federal law. For example, according to a Fish and Wildlife Service refuge manager in the borderlands region, when Border Patrol agents use vehicles off road to patrol or pursue suspects on federal lands, the tire tracks left by their vehicles may remain for years (see fig. 5). The tracks from these off- road incursions can disrupt water flow from slopes and mountain ranges. This runoff normally pools and provides water for vegetation, which allows wildlife to survive through hot, dry summers. With tire tracks, the water collects in the tracks instead of natural pools. As a result, pools are smaller and evaporate more quickly, leading to less vegetation, less available food, and fewer animals able to survive the summer.

The number of undocumented aliens crossing federal lands along the southwestern border can overwhelm law enforcement and resource protection efforts by federal land managers, thus highlighting the need for Border Patrol’s presence on and near these lands, according to DHS and land management agency officials. The need for the presence of both kinds of agencies on these borderlands has prompted consultation among DHS, Interior, and Agriculture to facilitate coordination between Border Patrol and the land management agencies. The departments have a stated commitment to foster better communication and resolve issues and concerns linked to federal land use or resource management.

Border Patrol Operates under Several Land Management Laws and Coordinates Its Responsibilities under These Laws with Land Management Agencies through National and Local Agreements

When operating on federal lands, Border Patrol has responsibilities under several federal land management laws, including the National Environmental Policy Act of 1969, Wilderness Act of 1964, and Endangered Species Act of 1973, and it generally coordinates its responsibilities under these laws with land management agencies through national and local interagency agreements. Border Patrol must obtain permission or a permit from federal land management agencies before its agents can undertake certain activities on federal lands, such as maintaining roads and installing surveillance equipment. Because the land management agencies are responsible for ensuring compliance with land management laws, Border Patrol and the land management agencies have developed several mechanisms to coordinate their responsibilities. The most comprehensive of these is a national-level agreement—a memorandum of understanding signed in 2006 by the Secretaries of Homeland Security, the Interior, and Agriculture—intended to provide consistent principles to guide their agencies’ activities on federal lands. At the local level, Border Patrol and land management agencies have also coordinated their responsibilities through various local agreements.

Several Land Management Laws Govern Border Patrol Operations on Federal Lands

Border Patrol, like all federal agencies, must obtain permission or a permit from the appropriate federal land management agency to conduct certain activities—such as road maintenance—on federal lands. To obtain permission or a permit, Border Patrol and land management agencies must fulfill the requirements of various land management laws, including, but not limited to, the following: National Environmental Policy Act of 1969. Enacted in 1970, the National Environmental Policy Act’s purpose is to promote efforts that will prevent or eliminate damage to the environment, among other things. Section 102 requires federal agencies to evaluate the likely environmental effects of proposed projects using an environmental assessment or, if the projects would likely significantly affect the environment, a more detailed environmental impact statement evaluating the proposed project and alternatives. Environmental impact statements can be developed at either a programmatic level—where larger-scale, combined effects and cumulative effects can be evaluated and where overall management objectives, such as road access and use, are defined—or a project level, where the effects of a particular project in a specific place at a particular time are evaluated. If, however, the federal agency determines that activities of a proposed project fall within a category of activities the agency has already determined has no significant environmental effect—called a categorical exclusion—then the agency generally does not need to prepare an environmental assessment or an environmental impact statement. The agency may instead approve projects that fit within the relevant category by using one of the predetermined categorical exclusions, rather than preparing a project-specific environmental assessment or environmental impact statement.

When more than two federal agencies are involved in an activity—as is the case with Border Patrol operations on federal lands—National Environmental Policy Act regulations require that a lead agency supervise the preparation of the environmental impact statement. Under a 2008 memorandum of agreement between Border Patrol and Interior’s land management agencies, Border Patrol is to be the lead agency on preparation of National Environmental Policy Act documents for all Border Patrol tactical infrastructure projects. For all other projects, such as road maintenance, Border Patrol or Interior land management agencies may be the lead, joint lead, or a cooperating agency. When Border Patrol and Interior land management agencies are joint lead agencies, they share responsibility for developing the scope and content of the environmental assessments and environmental impact statements. When either agency is a cooperating agency, it can develop its own environmental assessment or environmental impact statement or adopt the one developed by the lead agency if the cooperating agency reviews it and finds that its comments and suggestions have been satisfied.

Once the lead and cooperating agencies agree on a draft environmental impact statement, a notice of its availability is published in the Federal Register and it is made available for public notice and comment for at least 45 days. The agencies are to then prepare a final environmental impact statement and publish a notice of its availability in the Federal Register. At least 30 days after the notice of availability for the final environmental impact statement is published, the lead agency must publish a record of its decision, describing how the findings of the environmental impact statement were incorporated into the agency’s decision-making process. Figure 6 illustrates the process for implementing National Environmental Policy Act requirements.

National Historic Preservation Act of 1966. The National Historic Preservation Act provides for the protection of historic properties—any prehistoric or historic district, site, building, structure, object, or properties of traditional religious and cultural importance to an Indian tribe, included, or eligible for inclusion in, the National Register of Historic Places. For all projects receiving federal funds or a federal permit, section 106 of the act requires federal agencies to take into account a project’s effect on any historic property. In accordance with regulations implementing the act, Border Patrol and land management agencies often incorporate compliance with the National Historic Preservation Act into their required evaluations of a project’s likely environmental effects under the National Environmental Policy Act. Thus, the lead agency or agencies on Border Patrol’s proposed projects or activities on federal lands must determine, by consulting with relevant federal, state, and tribal officials, whether a project or activity has the potential to affect historic properties. The purpose of the consultation is to identify historic properties affected by the project; assess the activity’s adverse effects on the historic properties; and seek ways to avoid, minimize, or mitigate any of those effects. Specifically, the consultation is to determine and document a proposed action’s area of potential effects; assess whether the proposed project would alter, directly or indirectly, certain characteristics of the historic property; and develop and evaluate alternatives or modifications to the proposed project or activity that could avoid, minimize, or mitigate adverse effects. The entire process, including resolution of any adverse effects, must be completed before the relevant land management agency can issue a permit or grant permission to proceed with the proposed activity.

Wilderness Act of 1964. The Wilderness Act of 1964 provides for federal lands to be designated as “wilderness areas,” which means that such lands are to be administered in such a manner that will leave them unimpaired for future use and enjoyment and to provide for their protection and the preservation of their wilderness character, among other goals. If Border Patrol proposes to patrol or install surveillance equipment on federal land that has been designated as wilderness, the agency must comply with the requirements and restrictions of the Wilderness Act of 1964, other laws establishing a particular wilderness area, and the relevant federal land management agency’s regulations governing wilderness areas. Section 4 of the act prohibits the construction of temporary roads or structures, as well as the use of motor vehicles, motorized equipment, and other forms of mechanical transport in wilderness areas, unless such construction or use is necessary to meet the minimum requirements for administration of the area, including for emergencies involving health and safety.

Generally, the land management agencies have regulations that address the emergency and administrative use of motorized equipment and installations in the wilderness areas they manage. For example, under Fish and Wildlife Service regulations, the agency may authorize Border Patrol to use a wilderness area and prescribe conditions under which motorized equipment, structures, and installations may be used to protect the wilderness, including emergencies involving damage to property and violations of laws. Forest Service regulations are similar to Fish and Wildlife Service regulations but allow the agency to prescribe conditions to protect the wilderness and its resources. including in emergencies involving damage to property. Under Bureau of Land Management regulations, the agency may authorize Border Patrol to occupy and use wilderness areas to carry out the purposes of federal laws as well as prescribe conditions for Border Patrol’s use to protect the wilderness area, its resources, and users.

Endangered Species Act of 1973. The purpose of the Endangered Species Act is to conserve threatened and endangered species and the ecosystems upon which they depend. Under section 7 of the act, if Border Patrol or the land management agencies determine that an activity Border Patrol intends to authorize, fund, or carry out may affect an animal or plant species listed as threatened or endangered, the agency may initiate either an informal or a formal consultation with the Fish and Wildlife Service—which we refer to as a section 7 consultation—to ensure that its actions do not jeopardize the continued existence of such species or result in the destruction or adverse modification of its critical habitat. The agencies are to initiate informal consultation if they determine that an activity may affect—but is not likely to adversely affect—a listed species or critical habitat. If the Fish and Wildlife Service agrees, typically by issuing a letter of concurrence with Border Patrol or the land management agency’s determination, then Border Patrol may proceed with the activity without further consultation. If Border Patrol or the land management agency determines that an activity is likely to adversely affect a species, formal consultation must be initiated, which involves submitting to the Fish and Wildlife Service a written request that includes a description of the proposed action and how it may affect threatened or endangered species and their critical habitat. The consultation usually ends with the issuance of a biological opinion by the Fish and Wildlife Service, and the opinion can contain provisions affecting Border Patrol activities.

National and Local Agreements Facilitate Coordination of Responsibilities among the Agencies

To help implement these key federal land management laws, Border Patrol and the land management agencies have developed several mechanisms to coordinate their responsibilities, including a national-level memorandum of understanding and local agreements. The national-level memorandum of understanding was signed in 2006 by the Secretaries of Homeland Security, the Interior, and Agriculture and is intended to provide consistent principles to guide the agencies’ activities on federal lands along the U.S. borders. Such activities may include placing and installing surveillance equipment, such as towers and underground sensors; using roads; providing Border Patrol with natural and cultural resource training; mitigating environmental impacts; and pursuing suspected undocumented aliens off road in wilderness areas. The memorandum also contains several provisions for resolving conflicts between Border Patrol and land managers, such as directing the agencies to resolve conflicts at and delegate resolution authority to the lowest field operations level possible and to cooperate with each other to complete—in an expedited manner— all compliance that is required by applicable federal laws.

Some Border Patrol stations and land management agencies have coordinated their responsibilities through use of the national-level memorandum of understanding. For example, Border Patrol and land managers in Arizona used the 2006 memorandum of understanding to set the terms for reporting Border Patrol off-road vehicle incursions in Organ Pipe Cactus National Monument, as well as for developing strategies for interdicting undocumented aliens closer to the border in the Cabeza Prieta National Wildlife Refuge and facilitating Border Patrol access in the San Bernardino National Wildlife Refuge. Border Patrol and land management agencies have also coordinated their responsibilities through local agreements that were facilitated by the 2006 memorandum of understanding, which provides guidance on the development of individual local agreements. For example, for the Coronado National Forest in Arizona, Border Patrol and the Forest Service developed a coordinated strategic plan that sets forth conditions for improving and maintaining roads and locating helicopter landing zones in wilderness areas, among other issues. Regarding road maintenance, the plan states that sufficient funding has not been available for the Forest Service to perform road maintenance on many of the roads needed by Border Patrol for patrol and surveillance operations. It therefore sets forth the conditions for Border Patrol to use its own funding to pay for or perform road maintenance on the forest. Another example of a local agreement that resulted from the national-level 2006 memorandum of understanding is one between the Bureau of Land Management’s Las Cruces office and Border Patrol in New Mexico, concerning the maintenance of unpaved Bureau of Land Management roads. Specifically, in 2007, the agencies agreed in writing that the Bureau of Land Management is to promptly review Border Patrol road maintenance requests and expeditiously conduct necessary analysis of proposed requests, such as environmental and historic property assessments under the National Environmental Policy and National Historic Preservation acts. In addition, Border Patrol agreed to limit road maintenance so that it does not change the existing road profile or include new construction of drainage structures.

Border Patrol and land managers have also used other mechanisms to coordinate their responsibilities, such as local agreements predating the 2006 memorandum of understanding, as well as a 2000 legal settlement requiring a section 7 consultation and an environmental impact statement resulting in measures that now govern Border Patrol’s activities in a certain area. For example, in California, officials in the Bureau of Land Management’s El Centro office sought input from officials in Border Patrol’s El Centro Sector in deciding which Bureau of Land Management roads to close as part of a comprehensive road designation and mapping project. In obtaining Border Patrol’s input, the Bureau of Land Management decided to keep open numerous roads that it had otherwise been planning to close. Border Patrol El Centro Sector officials told us they appreciated this local coordination, which allowed them the access they needed while helping the Bureau of Land Management balance its requirements for protecting resources and facilitating vehicle access by Border Patrol and the public. In addition, in 2000, Border Patrol settled a lawsuit alleging that its Operation Rio Grande in south Texas violated the National Environmental Policy Act and the Endangered Species Act. The settlement prohibited Border Patrol, on an interim basis, from mowing brush in the floodplain of the Rio Grande and clearing, burning, or driving through any brush or other vegetation in the floodplain, with some exceptions, and using lights at night to illuminate portions of the Lower Rio Grande National Wildlife Refuge property, among other terms. The legal settlement also required Border Patrol to conduct section 7 consultations and prepare an environmental impact statement, which resulted in measures that now govern Border Patrol’s activities in and around the Fish and Wildlife Service’s South Texas Refuge Complex.

Several other mechanisms as well have been used to facilitate interagency coordination. For example, Border Patrol and Interior established interagency liaisons, who have responsibility for facilitating coordination among their agencies. Border Patrol’s Public Lands Liaison Agent program directs each Border Patrol sector to designate an agent dedicated to interacting with Interior, Agriculture, or other governmental or nongovernmental organizations involved in land management issues. The role of these designated agents is to foster better communication; increase interagency understanding of respective missions, objectives, and priorities; and serve as a central point of contact in resolving issues and concerns. Key responsibilities of these public lands liaison agents include implementing the 2006 memorandum of understanding and subsequent related agreements, and monitoring any enforcement operations, issues, or activities related to federal land use or resource management. In addition, Interior established its own Southwest Border Coordinator, located at the Border Patrol Tucson Sector, to coordinate federal land management issues among Interior component agencies and with Border Patrol. The Forest Service also established a dedicated liaison position in the Tucson Sector to coordinate with Border Patrol, according to Forest Service officials. In addition to these liaison positions, a borderlands management task force provides an intergovernmental forum in the field for governmental officials, including those from Border Patrol, the land management agencies, and other state and local government entities, to regularly meet and discuss challenges and opportunities for working together. The task force acts as a mechanism to address issues of security, safety, and resources among federal, tribal, state, and local governments located along the border.

Land Management Laws Have Limited Border Patrol’s Access to Federal Lands in Some Areas, but Most Agents-in-Charge Reported No Effect on Their Stations’ Border Security Status

Border Patrol stations’ access has been limited on some federal lands along the southwestern border because of certain land management laws, according to some patrol agents-in-charge in the borderlands region. Specifically, 17 of the 26 stations that have primary responsibility for patrolling federal lands along the southwestern border reported that when they attempt to obtain a permit or permission to access portions of federal lands, delays and restrictions have resulted from complying with land management laws. Despite these delays and restrictions, 22 of the 26 Border Patrol stations reported that the border security status of their area of operation has not been affected by land management laws.

More Than Half of Border Patrol Stations Reported That Land Management Laws Have Affected Their Access for Patrolling and Monitoring Parts of Federal Lands

Patrol agents-in-charge of 17 of 26 stations along the southwestern border reported that they have experienced delays and restrictions in patrolling and monitoring portions of federal lands because of various land management laws. Specifically, patrol agents-in-charge of 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 to comply with the National Environmental Policy Act and the National Historic Preservation Act. In addition, 3 of the 17 stations reported that their agents’ ability to access portions of federal lands has been affected by Wilderness Act restrictions on the creation of additional roads and installation of structures, such as SBInet towers. Furthermore, 5 of the 17 stations reported that as a result of consultations under section 7 of the Endangered Species Act, their agents had to change the timing or specific location of ground and air patrols because endangered species were present in these areas.

Land Management Agencies’ Implementation of the National Environmental Policy Act and National Historic Preservation Act Has Caused Delays for 14 Stations

Fourteen of the 26 Border Patrol stations along the southwestern border have reported experiencing delays in getting a permit or permission from land managers to gain access to portions of federal land because of the time it took land managers to complete the requirements of the National Environmental Policy Act and the National Historic Preservation Act. These delays in gaining access have generally lessened agents’ ability to detect undocumented aliens in some areas, according to the patrol agents- in-charge. The 2006 memorandum of understanding directs the agencies to cooperate with each other to complete, in an expedited manner, all compliance required by applicable federal laws, but such cooperation has not always occurred, as shown in the following examples: Federal lands in Arizona. For the Border Patrol station responsible for patrolling certain federal lands in Arizona, the patrol agent-in-charge reported that it has routinely taken several months to obtain permission from land managers to move mobile surveillance systems. The agent-in- charge said that before permission can be granted, land managers generally must complete environmental and historic property assessments—as required by the National Environmental Policy and National Historic Preservation acts—on roads and sites needed for moving and locating such systems. For example, Border Patrol requested permission to move a mobile surveillance system to a certain area, but by the time permission was granted—more than 4 months after the initial request—illegal traffic had shifted to other areas. As a result, Border Patrol was unable to move the surveillance system to the locale it desired, and during the 4-month delay, agents were limited in their ability to detect undocumented aliens within a 7-mile range that could have been covered by the system. The land manager for the federal land unit said that most of the area and routes through it have not had a historic property assessment, so when Border Patrol asks for approval to move equipment, such assessments must often be performed.

Moreover, the federal land management unit has limited staff with numerous other duties. For example, the unit has few survey specialists who are qualified to perform environmental and historic property assessments. Thus, he explained, resources cannot always be allocated to meet Border Patrol requests in an expedited manner.

Federal lands in New Mexico. In southwestern New Mexico, the patrol agents-in-charge of four Border Patrol stations reported that it may take 6 months or more to obtain permission from land managers to maintain and improve roads that Border Patrol needs on federal lands to conduct patrols and move surveillance equipment. According to one of these agents-in-charge, for Border Patrol to obtain such permission from land managers, the land managers must ensure that environmental and historic property assessments are completed, which typically entails coordinating with three different land management specialists: a realty specialist to locate the site, a biologist to determine if there are any species concerns, and an archaeologist to determine if there are any historic sites. Coordinating schedules among these experts often takes a long time, according to a Border Patrol public-lands liaison. For example, one patrol agent-in-charge told us that a road in his jurisdiction needed to be improved to allow a truck to move an underground sensor, but the process for the federal land management agency to perform a historic property assessment and issue a permit for the road improvements took nearly 8 months. During this period, agents could not patrol in vehicles or use surveillance equipment to monitor an area that illegal aliens were known to use. The patrol agent-in-charge told us that performing such assessments on every road that might be used by Border Patrol would take substantial time and require assessing hundreds of miles of roads. According to federal land managers in the area, environmental and historic property specialists try to expedite support for Border Patrol as much as possible, but these specialists have other work they are committed to as well. Moreover, the office has not been provided any additional funding to increase personnel to be able to dedicate anyone in support of the Border Patrol to expedite such requests.

Federal lands in California. For two Border Patrol stations responsible for patrolling federal lands in Southern California, the patrol agents-in- charge reported that when they request permission for road maintenance activities, it can take up to 9 months for permission to be granted; occasionally, Border Patrol may not receive permission at all. In one case, for example, a patrol agent-in-charge told us that better maintenance was needed for five roads and two surveillance system sites within her station’s area of operation, but because permission to maintain these roads was not granted, her agents could not conduct routine patrols or reach the sites for mobile surveillance systems, even in areas of high illegal traffic (see fig. 7). The patrol agent-in-charge said that without the permission to maintain the poor roads, her agents had to find alternative patrol routes and try to apprehend suspected undocumented aliens farther north. In addition, because the proposed surveillance sites could not be used, agents had to place the mobile surveillance systems in areas less prone to illegal traffic. The Bureau of Land Management state program manager for this area told us that one bureau employee had, at times, told Border Patrol agents that they could not use or have permission to maintain a road, whereas the employee should have instructed Border Patrol to seek permission from a Bureau of Land Management specialist, who could have begun the required environmental and historic property assessments. In addition, the state program manager told us that the required assessments for road maintenance activities have not been completed on many routes. He acknowledged that one of the Bureau of Land Management’s biggest challenges is being responsive to Border Patrol timelines. A Bureau of Land Management field manager for this area also told us that the process to approve many Border Patrol projects often takes considerable time because the bureau lacks sufficient staff resources to expedite Border Patrol requests.

For some of the stations, the delays patrol agents-in-charge reported could have been shortened if Border Patrol could have used its own resources to pay for, or perform, environmental and historic property assessments required by the National Environmental Policy Act and National Historic Preservation Act, according to patrol agents-in-charge and land managers with whom we spoke. On one land unit, Border Patrol and land managers have developed such a cooperative arrangement and resolved some access delays. Specifically, for the Coronado National Forest, agency officials told us that Border Patrol and the Forest Service had entered into an agreement whereby in some situations Border Patrol pays for road maintenance and the necessary environmental and historic property assessments. While two patrol agents-in-charge reported that in the past they experienced delays in gaining access resulting from poorly maintained roads, they stated that the development of the Coronado National Forest coordinated strategic plan has helped the agencies shorten the time it takes to begin road maintenance because it allows Border Patrol to use its resources and therefore begin environmental and historic property assessments sooner. The plan recognizes that Forest Service funding has not been available to adequately maintain the forest roads that Border Patrol uses for patrols. Officials from both agencies agreed that these roads must be in a drivable condition for Border Patrol agents. Agency officials stated that the agencies have also agreed to allow Border Patrol to fund additional Forest Service personnel to complete requirements for road maintenance and improvement under the National Environmental Policy Act and National Historic Preservation Act. The Coronado National Forest border liaison added that without this agreement, Forest Service would have been unable to meet Border Patrol’s road maintenance needs in a timely fashion.

In other situations, using Border Patrol resources to pay for or perform road maintenance may not always expedite access; instead, land managers and Border Patrol officials told us that a programmatic environmental impact statement should be prepared under the National Environmental Policy Act to help expedite access. For example, some patrol agents-in- charge, such as those in southwestern New Mexico, told us that to conduct environmental and historic property assessments on every road that agents might use, on a case-by-case basis, would take substantial time and require assessing hundreds, if not thousands, of miles of roads. Moreover, when agents request permission to move mobile surveillance systems, the request is often for moving such systems to a specific location, such as a 60-by-60-foot area on a hill. Some agents told us, however, that it takes a long time to obtain permission from land managers because environmental and historic property assessments must be performed on each specific site, as well as on the road leading to the site. As we stated earlier, National Environmental Policy Act regulations recognize that programmatic environmental impact statements—broad evaluations of the environmental effects of multiple Border Patrol activities, such as road use and technology installation, in a geographic area—could facilitate compliance with the act. By completing a programmatic environmental impact statement, Border Patrol and land management agencies could then subsequently prepare narrower, site-specific statements or assessments of proposed Border Patrol activities on federal lands, such as on a mobile surveillance system site alone, thus potentially expediting access.

Wilderness Act Restrictions Have Affected Three Stations’ Access to Federal Lands

Patrol agents-in-charge for three stations reported that agents’ access to some federal lands was limited because of restrictions in the Wilderness Act on building roads and installing infrastructure, such as surveillance towers, in wilderness areas. For these stations, the access restrictions lessen the effectiveness of agents’ patrol and monitoring operations. However, land managers may grant permission for such activities if they meet the regulatory requirements for emergency and administrative use of motorized equipment and installations in wilderness areas. As shown in the following examples, land managers responsible for two wilderness areas are working with Border Patrol agents to provide additional access as allowed by the regulations for emergency and administrative use. On the other hand, a land manager responsible for a third wilderness area has denied some Border Patrol requests for additional access.

Cabeza Prieta National Wildlife Refuge, Arizona. At the Cabeza Prieta National Wildlife Refuge, Wilderness Act restrictions have limited the extent to which Border Patrol agents can use vehicles for patrols and technology resources to detect undocumented aliens. The patrol agent- in-charge responsible for patrolling Cabeza Prieta told us that the refuge has few roads. She told us that her agents’ patrol operations would be more effective with one additional east-west road close to the border. Over 8,000 miles of roads and trails created by undocumented aliens and law enforcement activity throughout the refuge’s wilderness have been identified by refuge staff; according to the patrol agent-in-charge, having an additional east-west road would give Border Patrol more options in using its mobile surveillance system to monitor significant portions of the refuge that are susceptible to undocumented-alien traffic. Additionally, the patrol agent-in-charge told us that better access could benefit the natural resources of the refuge because it could lead to more arrests closer to the border—instead of throughout the refuge—and result in fewer Border Patrol off-road incursions. The refuge manager agreed that additional Border Patrol access may result in additional environmental protection. He told us that he is working with Border Patrol to develop a strategy at the refuge that would allow Border Patrol to detect and apprehend undocumented aliens closer to the border. Further, the refuge manager in February 2010 gave permission for Border Patrol to install an SBInet tower on the refuge, which may also help protect the wilderness area.

Coronado National Forest, Arizona. In parts of the Coronado National Forest, Wilderness Act restrictions also limit the extent to which Border Patrol agents at one station can use vehicles to patrol parts of the forest and detect undocumented aliens. Specifically, patrol agents-in-charge of one station told us that their agents’ access to part of the wilderness area has been limited—in large part because of the rugged terrain, but also because of restrictions on creating new roads in wilderness areas. According to Tucson Sector Border Patrol officials, more undocumented aliens cross the Coronado National Forest than any other federal land unit along the southwestern border, and much of this illegal traffic has recently shifted to a particular area of wilderness. Coronado National Forest officials told us they recognized the need for greater Border Patrol access and that such access could also help protect the forest’s natural resources. As a result, according to Coronado National Forest officials, they approved the creation of four helicopter landing zones in the wilderness area because Forest Service wilderness regulations allow the agency to prescribe conditions for Border Patrol’s use of motorized equipment and installations to protect the wilderness and its resources. Construction of these landing zones, however, has been delayed until 2011, according to Coronado National Forest officials. In addition, Forest Service permitted Border Patrol to install technological resources—such as remote video surveillance systems and ground-based radar—in the rough terrain where road creation is infeasible, such as in the wilderness area. According to an agreement between Border Patrol and Coronado National Forest officials, installing this technology helps Border Patrol agents detect undocumented aliens and allows agents time to respond by helicopter, horseback, or all-terrain vehicle to apprehend undocumented aliens in these areas.

Organ Pipe Cactus National Monument, Arizona. Contrasting with the Cabeza Prieta refuge and the Coronado National Forest, when Border Patrol requested additional access in Organ Pipe’s wilderness area, the monument’s land manager determined that additional Border Patrol access would not necessarily improve protection of natural resources. For the Border Patrol station responsible for patrolling Organ Pipe, the patrol agent-in-charge told us that certain Border Patrol activities have been restricted because of the monument’s status as wilderness, and Border Patrol’s requests for additional access have been denied. Specifically, Border Patrol proposed placing an SBInet tower within the monument, and from the proposed site, the tower was expected to enable Border Patrol to detect undocumented aliens in a 30-square-mile range. But because the proposed site was in a designated wilderness area, the land manager denied Border Patrol’s request. Instead, Border Patrol installed the tower in an area within the monument that is owned by the state of Arizona. At this site, however, the tower has a smaller surveillance range and cannot cover about 3 miles where undocumented aliens are known to cross, according to the patrol agent-in-charge, thus lessening Border Patrol’s ability to detect entries compared with the originally proposed site. In addition, the patrol agent-in-charge explained that because of the tower’s placement, when undocumented aliens are detected, agents have less time to apprehend them before they reach mountain passes, where it is easier to avoid detection. According to the land manager, he requested that Border Patrol find a different location for the tower because the Wilderness Act restricts placement of such infrastructure in wilderness areas. Further, he explained that Border Patrol did not demonstrate to him that the proposed tower site was critical, as compared with the alternative, and that agents’ ability to detect undocumented aliens would be negatively affected.

Endangered Species Act Requirements Have Affected Five Stations’ Access to Federal Lands

Five Border Patrol stations reported that as a result of consultations required by section 7 of the Endangered Species Act, agents have had to adjust the timing or specific locales of their ground and air patrols to minimize the patrols’ impact on endangered species and their critical habitats. As shown in the following examples, although some delays and restrictions have occurred, Border Patrol agents were generally able to adjust their patrols with little loss of effectiveness in their patrol operations.

Coronado National Forest, Arizona. For a Border Patrol station responsible for patrolling an area within the Coronado National Forest, the patrol agent-in-charge reported that a section 7 consultation placed restrictions on helicopter and vehicle access because of the presence of endangered species. First, during parts of the year when certain endangered species are in residence, helicopter flight paths have been restricted. Nevertheless, the agent-in-charge told us, the restrictions, which result in alternative flight paths, do not lessen the effectiveness of Border Patrol’s air operations. Moreover, according to the Forest Service District Ranger, since the area’s rugged terrain presents a constant threat to agents’ safety, Border Patrol agents have been allowed to use helicopters as needed, regardless of endangered species’ presence. Second, the agent-in-charge told us, Border Patrol wanted to improve a road within the area to provide better access, but because of the proposed project’s adverse effects an endangered plant, road improvement could not be completed near a low point where water crossed the road. Border Patrol worked with Forest Service officials to improve 3 miles of a Forest Service road up to the low point, but the crossing itself—about 8 feet wide—along with 1.2 miles of road east of it was not improved. According to the agent-in-charge, agents still patrol the area but must drive vehicles slowly because of the road’s condition east of the low point.

Cabeza Prieta National Wildlife Refuge, Arizona. The patrol agent-in- charge of the station responsible for patrolling the Cabeza Prieta National Wildlife Refuge told us that as a result of section 7 consultations, her helicopter patrols have been restricted when certain endangered species are known to be in an area. Once she hears from refuge staff about the endangered species’ location, her agents adjust their air operations to patrol and pursue undocumented aliens farther north in the refuge. She told us that her agents’ ability to detect and apprehend suspected undocumented aliens has not been compromised by these adjustments. Instead, she explained, communication with the refuge manager about the location of the endangered species is all that has been needed. According to the refuge manager, refuge staff are currently developing a system that will provide Border Patrol with “real- time” information on the endangered species’ location, which they plan to complete before the end of the year.

San Bernardino National Wildlife Refuge, Arizona. For the Border Patrol station responsible for patrolling the San Bernardino National Wildlife Refuge, the patrol agent-in-charge told us that vehicle access has been restricted in the refuge because vehicle use can threaten the habitat of threatened and endangered species. Since establishment of the refuge in 1982, locked gates have been in place on the refuge’s administrative roads (see fig. 8). But Border Patrol station officials told us that in the last several years, with the increase in the number of agents assigned to the station, they wanted to have vehicle access to the refuge. The terms for vehicle access had to be negotiated with the refuge manager because of the access restrictions imposed to protect endangered species habitat. The patrol agent-in-charge told us that Border Patrol and the refuge manager agreed to place Border Patrol locks on refuge gates and to allow second-level Border Patrol supervisors, on a case-by-case basis, to determine whether vehicle access to the refuge is critical. If such a determination is made, a Border Patrol supervisor unlocks the gate and contacts refuge staff to inform them that access was granted through a specific gate. The patrol agent-in-charge told us that operational control has not been affected by these conditions for vehicle access. Nevertheless, he said, additional technology, such as mobile surveillance systems, would be helpful in detecting undocumented aliens in the remote areas in and around the refuge.

Most Agents Reported That Land Management Laws Have Had No Effect on Border Patrol’s Overall Measure of Border Security

Despite the access delays and restrictions reported for 17 stations, most patrol agents-in-charge whom we interviewed said that the border security status of their jurisdictions has been unaffected by land management laws. Instead, factors other than access delays or restrictions, such as the remoteness and ruggedness of the terrain or dense vegetation, have had the greatest effect on their abilities to achieve or maintain operational control. While four patrol agents-in-charge reported that delays and restrictions negatively affected their ability to achieve or maintain operational control, they have either not requested resources to facilitate increased or timelier access or have had their requests denied by senior Border Patrol officials, who said that other needs were greater priorities for the station or sector.

Most Stations’ Border Security Status Has Been Unaffected by Land Management Laws; Instead, Stark Terrain Features Have Had the Greatest Effect

Patrol agents-in-charge at 22 of the 26 stations along the southwestern border told us that their ability to achieve or maintain operational control in their areas of responsibility has been unaffected by land management laws; in other words, no portions of these stations’ jurisdictions have had their border security status, such as “controlled,” “managed,” or “monitored,” downgraded as a result of land management laws. Instead, for these stations, the primary factor affecting operational control has been the remoteness and ruggedness of the terrain or the dense vegetation their agents patrol and monitor. Specifically, patrol agents-in-charge at 18 stations told us that stark terrain features—such as rocky mountains, deep canyons, and dense brush—have negatively affected their agents’ abilities to detect and apprehend undocumented aliens. A patrol agent-in-charge whose station is responsible for patrolling federal land in southern California told us that the terrain is so rugged that Border Patrol agents must patrol and pursue undocumented aliens on foot; even all-terrain vehicles specifically designed for off-road travel cannot traverse the rocky terrain. He added that because of significant variations in topography, such as deep canyons and mountain ridges, surveillance technology can also be ineffective in detecting undocumented aliens who hide there (see fig. 9).

In addition, patrol agents-in-charge responsible for patrolling certain Fish and Wildlife Service land reported that dense vegetation limits agents’ ability to patrol or monitor much of the land. One agent explained that Border Patrol’s technology resources were developed for use in deserts where few terrain features obstruct surveillance, whereas the vegetation in these areas is dense and junglelike (see fig. 10).

Most patrol agents-in-charge also told us that the most important resources for achieving and maintaining operational control are (1) a sufficient number of agents; (2) additional technology resources, such as mobile surveillance systems; and (3) tactical infrastructure, such as vehicle and pedestrian fencing. For example, in the remote areas of one national wildlife refuge, a patrol agent-in-charge told us that even with greater access in the refuge, he would not increase the number of agents patrolling it to gain improvements in operational control. Instead, he said, additional technology resources, such as a mobile surveillance system, would be more effective in achieving operational control of the area because such systems would assist in detecting undocumented aliens while allowing agents to maintain their presence in and around a nearby urban area, where the vast majority of illegal entries occur. His view, and those of other patrol agents- in-charge whom we interviewed, is underscored by Border Patrol’s operational assessments—twice-yearly planning documents that stations and sectors use to identify impediments to achieving or maintaining operational control and to request resources needed to achieve or maintain operational control. In these assessments, stations have generally requested additional personnel or technology resources for their operations on federal lands. Delays or restrictions in gaining access have generally not been identified in operational assessments as an impediment to achieving or maintaining operational control for the 26 stations along the southwestern border.

For Four Stations Reporting That Their Security Status Has Been Affected by Land Management Laws, Agents Have Either Not Requested Additional Access or Have Had Such Requests Denied by Senior Border Patrol Officials

Of the 26 patrol agents-in-charge we interviewed, 4 reported that delays and restrictions in gaining access to federal lands have negatively affected their ability to achieve or maintain operational control: 2 of these 4 agents reported not having used Border Patrol’s operational assessments to request resources to facilitate increased or timelier access, and the other 2 reported having had such requests denied by either Border Patrol sector or headquarters officials. For example, the patrol agent-in-charge responsible for an area in southwestern New Mexico told us that operational control in a remote area of his jurisdiction is partly affected by the scarcity of roads. Specifically, having an additional road in this area would allow his agents to move surveillance equipment to an area that, at present, is rarely monitored. Nevertheless, a supervisory agent for the area told us, station officials did not request additional access through Border Patrol’s operational assessments. The 2006 memorandum of understanding directs Border Patrol to consult with land managers when developing operational assessments if Border Patrol needs additional access on federal lands. Land managers in this area told us they would be willing to work with Border Patrol to facilitate such access, if requested.

Similarly, the patrol agent-in-charge at a Border Patrol station responsible for patrolling another federal land unit also reported that his ability to achieve operational control is affected by a shortage of east-west roads in the unit. He told us that some of his area of operation could potentially reach operational control status if there were an additional east-west road for patrolling certain areas within the unit to detect and apprehend undocumented aliens. Border Patrol requested an additional east-west road, but the land manager denied the request because the area is designated wilderness, according to the agent-in-charge. The agent explained that he did not use the operational assessment to request additional roads because the land manager denied his initial request. The land manager told us that he would be willing to work with Border Patrol to facilitate additional access if it could be shown that such access would help increase deterrence and apprehensions closer to the border.

For the other two stations reporting that federal land management laws have negatively affected their ability to achieve or maintain operational control, Border Patrol sector or headquarters officials have denied the stations’ requests for resources to facilitate increased or timelier access— typically for budgetary reasons. For example, one patrol agent-in-charge reported that 1.3 miles of border in her area of responsibility are not at operational control because, unlike most other border areas, it has no access road directly on the border. Further, she explained, the rough terrain has kept Border Patrol from building such a road; instead, a road would need to be created in an area designated as wilderness. According to the patrol agent-in-charge, her station asked Border Patrol’s sector office for an access road, and the request was submitted as part of the operational requirements-based budgeting program. As of July 2010, the request had not been approved because of budgetary constraints, according to the agent-in-charge. In addition, another patrol agent-in-charge told us, few roads lie close to the river that runs through his area of responsibility. As a result, his agents have to patrol and monitor nearly 1 mile north of the international border, much closer to urban areas. According to officials with Border Patrol’s relevant sector office, they have been using the operational assessments for several years to request an all-weather road, but approval and funding have not been granted by Border Patrol’s headquarters.

Some Federal Land Managers Have Collected and Used Selected Data on the Environmental Effects of Cross-Border Illegal Activity to Manage Federal Borderlands

While federal land managers along the southwestern border receive data collected by Border Patrol on the extent of cross-border illegal activities on their lands, the extent of land managers’ data collection efforts on the effects of these illegal activities has varied among land units, with some land managers regularly monitoring areas to determine resource impacts, others documenting environmental damage on an ad hoc basis, and still others collecting no such data. Where collected, land managers have used data on the environmental effects of cross-border illegal activity, as well as data provided by Border Patrol on the extent of cross-border illegal activity, for several land management and conservation purposes. These purposes include (1) restoring lands and mitigating environmental damage, (2) providing Border Patrol agents with environmental and cultural awareness training, (3) protecting staff and visitors, and (4) establishing conservation measures to reduce adverse effects of Border Patrol actions on endangered species and their habitats.

Land Managers Rely on Border Patrol for Data on Cross-Border Illegal Activity; the Extent of Their Data Collection Efforts on the Environmental Effects of Such Activity Has Varied

Land managers generally rely on Border Patrol for data on cross-border illegal activity, including data on apprehensions of undocumented aliens and drug seizures occurring on federal lands. In accordance with the 2006 memorandum of understanding, Border Patrol officials share data with land managers, and officials have done so in a variety of ways, including at regular meetings and in e-mailed reports. For example, Border Patrol provides statistics on apprehensions and drug seizures to land managers during the monthly meetings of borderlands management task forces. Formed in each Border Patrol sector along the southwestern border, these task forces serve as a forum for Border Patrol and land managers, among others, to discuss and share information on border-related issues on public lands. During these meetings, Border Patrol has typically provided written statistics on cross-border illegal activity occurring on federal land units throughout each sector.

The extent of land managers’ efforts to collect data on the environmental effects of cross-border illegal activity along the southwestern border has varied, with some land managers (5 of 18) regularly collecting and analyzing data on the environmental effects of cross-border illegal activity, including acres burned by wildland fires, miles of trampled vegetation from illegal trails, and amounts of trash collected. Other land managers (10 of 18) reported having collected data on an irregular basis. Still other land managers (3 of 18) reported having collected no such data.

Examples of ongoing efforts by land managers to collect and analyze these kinds of data include the following: At Organ Pipe Cactus National Monument, land managers have conducted a semiannual inventory and monitoring program since 2002 to assess the extent of natural and cultural resource damage from cross- border illegal activity. The land managers delineate and walk five east- west lines, or transects, that cross known illegal trafficking routes, and along each transect, monument staff have recorded and mapped resource impacts, such as trails, trash, and fire scars.

Land managers from the Cleveland National Forest in California have annually collected and reported a variety of data on environmental impacts, which show that since 2002, nearly 59,000 pounds of trash left by undocumented aliens have been collected, and over 19,000 acres of forest have burned from fires started by undocumented aliens.

The Bureau of Land Management, through its restoration work on federal lands throughout southern Arizona, has annually collected data since 2003 on the quantities of trash, vehicles, and bicycles removed from public land and acres of land restored.

Land managers from the Cabeza Prieta National Wildlife Refuge have collected data annually since 2005 on illegal trails, damaged vegetation, and sites with large amounts of trash. They collect these data along 12 transects established by refuge staff, which are traveled on foot by volunteers and refuge staff who record information on environmental impacts. Cabeza Prieta has also inventoried the damage caused by foot and vehicle traffic, mapped smuggling routes through the refuge, and assessed priorities for restoration.

Other land managers’ data collection has been done with less regularity. For example, land managers from the Fish and Wildlife Service’s South Texas Refuge Complex—which includes the Laguna Atascosa, Santa Ana, and Lower Rio Grande Valley national wildlife refuges—told us that although they do not regularly collect data on the environmental impacts of cross-border illegal activity, their staff has estimated that thousands of illegal trails and tons of trash and human waste have been found on the three wildlife refuges within the complex. In addition, at the Coronado National Memorial in Arizona, land managers have at times mapped the major trails used by undocumented aliens through the monument, taken aerial and satellite photos to document damage, and documented disturbances to the foraging habitat of the endangered lesser long-nosed bat.

Three land managers we spoke with had not made any formal effort to collect data on the environmental effects of cross-border illegal activity, although they believed that adverse environmental effects were occurring. A land manager with the Bureau of Land Management’s Las Cruces office in New Mexico said that his office had requested funding to collect data on the environmental effects of increased human presence on bureau lands— including inventorying and documenting the extent of illegal trails, trash, and impacts to animal species—but had received no funding to carry out these data collection efforts.

In addition to collecting data on the environmental impacts of cross-border illegal activity, land managers in some areas have also collected data on the environmental effects of Border Patrol’s response to cross-border illegal activities. For example, land managers for Organ Pipe Cactus National Monument and Cabeza Prieta National Wildlife Refuge have created maps showing the extent of off-road vehicle travel by Border Patrol agents. Such travel can disrupt endangered species and damage vegetation, soils, and water runoff patterns, according to these land managers.

Land Managers Have Used Environmental and Other Data for Managing Federal Borderlands

Land managers use data they have collected on the environmental effects of cross-border illegal activity, as well as data provided by Border Patrol on the extent of cross-border illegal activity, for several purposes, including (1) restoring lands and mitigating environmental damage, (2) providing Border Patrol agents with environmental and cultural awareness training, (3) protecting staff and visitors, and (4) establishing conservation measures to reduce adverse effects of Border Patrol actions on endangered species and their habitats.

Restoring Lands and Mitigating Environmental Damage

Some land managers have used environmental data and data on cross- border illegal activity to help restore lands damaged by undocumented aliens. For example, since 2003, the Bureau of Land Management has been working with federal, state, and tribal partners to administer the Southern Arizona Project. Through this project, partners have coordinated and executed cleanup and restoration activities throughout southern Arizona. In fiscal year 2009, for example, participants in the Southern Arizona Project removed 468,000 pounds of trash, 62 vehicles, and 404 bicycles and restored 650 acres of land that were damaged by illegal traffic (see fig. 11). The Bureau of Land Management reported that the project focused its remediation effort on restoring illegally created roads and trails, which included grading the disturbed sites, removing invasive brush, and reseeding areas with native plants.

Land managers with Interior have also used selected data to identify and select natural resource projects to offset the environmental impacts of constructing pedestrian and vehicle fences. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 mandated installation of additional physical barriers and roads near the border, including 14 miles of additional fencing near San Diego, California. The act waived the provisions of the Endangered Species Act and the National Environmental Policy Act to the extent that the U.S. Attorney General determined necessary to ensure expeditious construction of barriers and roads. The REAL ID Act of 2005 amended the 1996 act to authorize the Secretary of Homeland Security to waive all legal requirements that the Secretary, at his or her sole discretion, determines necessary to ensure expeditious construction. In 2007, the act was amended again to require, among other things, that the Secretary (1) construct not less than 700 miles of fencing along the southwestern border where such fencing would be most practical and effective and (2) consult widely, including with the Secretaries of the Interior and Agriculture, to minimize the impact of the fencing on the environment, among other things. In instances where the Secretary invoked this waiver authority, DHS voluntarily prepared plans—termed environmental stewardship plans—estimating the expected environmental impacts of particular fencing segments and worked with Interior to develop strategies to reduce or minimize adverse environmental impacts. Where adverse environmental impacts such as habitat loss, heavy sedimentation, or erosion could not be minimized or averted, DHS committed funding to allow Interior to carry out appropriate mitigation measures (see fig. 12). Using the environmental stewardship plans to identify appropriate mitigation measures, DHS committed up to $50 million to Interior for implementing such measures. Interior in turn was to identify $50 million worth of projects to benefit threatened and endangered species and their habitats. Projects identified by Interior include acquiring land for the endangered Otay Mountain arroyo toad in California and implementing jaguar monitoring and conservation projects across Arizona and New Mexico (see app. II for the complete list of mitigation projects). According to Interior and DHS officials, Interior and DHS signed an agreement on September 28, 2010, for the transfer of $6.8 million to mitigate impacts on endangered species along the southwestern border. This agreement is the first of several anticipated over the next year to transfer funds totaling $50 million from DHS to Interior for such mitigation projects, according to an Interior official.

Some land managers told us they have used information on the environmental effects of cross-border illegal activity to design and provide training to Border Patrol agents on ways to minimize environmental damage that their response to illegal activities may cause, in accordance with the 2006 memorandum of understanding.Twenty of the 26 patrol agents-in-charge we interviewed told us that their agents received training from land managers in the form of either in-person training, training tools such as videos, or both. All 20 patrol agents-in-charge reported that the training provided by land managers had increased their agents’ awareness of the potential resource effects of their patrol operations and some said that this increased awareness has led agents to modify their patrols. For example, 10 patrol agents in charge said that their agents’ increased environmental awareness had, for example, helped reduce off-road driving in environmentally sensitive areas and that, when possible, agents were more likely to use foot or horse patrols instead of vehicle patrols.

Nevertheless, many patrol agents-in-charge reported wanting more frequent, land unit-specific, in-person training for their agents. For example, 11 patrol agents-in-charge reported wanting more frequent training, including regular refresher training, and suggested frequencies for this training that ranged from quarterly to annually. Further, 10 patrol agents-in-charge reported that having information delivered by land managers was the clearest, most effective way to communicate with agents. Three patrol agents-in-charge also said they would like training to be area-specific, meaning that the training should describe the specific natural and cultural resources of the area they patrol. Land managers and other officials told us that limited resources and competing priorities, combined with the high rate of turnover among Border Patrol agents, can make it difficult to provide timely, in-person training on a regular basis.

Recognizing the need for natural and cultural resource training for Border Patrol agents, DHS, Interior, and the Forest Service in 2009 formed a task force on environmental and cultural stewardship training. Officials of these agencies told us that the task force is developing a content outline for a national training module and has collected nationwide information on training that land managers have provided to Border Patrol stations, discussed requirements for the national module, and discussed an overall strategy for implementing the module. As of September 2010, the task force had not made any decisions on what information the training module is to include and had not asked staff in the field what their needs for training content were, according to DHS and Interior officials involved in developing the training. But as we have previously reported, stakeholder involvement throughout the planning and development of such a training program contributes to accomplishing the agencies’ missions and goals. Adopting core characteristics of a strategic training and development process can also help ensure that agencies’ training investments are targeted strategically and not directed toward efforts that are irrelevant, duplicative, or ineffective.

Protecting Staff and Visitors

Some land managers have also used data provided by Border Patrol on cross-border illegal activity to help make decisions related to staff and visitor safety. For example, managers of some federal lands have placed signs warning the public that they may encounter cross-border illegal activity, or they have distributed border safety awareness flyers at visitor centers and trailheads (see figs. 13 and 14).

In some cases, federal land managers have closed portions of their lands to the public and restricted staff access to certain areas unless accompanied by law enforcement agents. As illustrated by the following examples, Interior and the Forest Service have faced numerous challenges providing a safe environment for visitors, employees, and residents on federal lands along the southwestern border: In 2002 at Organ Pipe Cactus National Monument, a drug smuggler shot and killed a park ranger. Following this and other reports of increasing violence, about half of the monument has been closed to the public since 2007.

In 2005, five undocumented aliens were murdered at Buenos Aires National Wildlife Refuge in Arizona. As the result of illegal activity and heavy law enforcement action, about 3,500 acres have been closed to the public since 2006.

In a 2006 testimony, the supervisor of Cleveland National Forest stated that armed bandits had threatened, robbed, raped, and assaulted undocumented aliens traveling through the forest and that money, firearms, and other personal possessions had been taken from national forest employee and private residences.

Since 2007, Cabeza Prieta National Wildlife Refuge has been requiring law enforcement escorts for refuge staff and volunteers working within several miles of the border.

In 2009, the South Texas Refuge Complex reported that many refuge tracts adjacent to the Rio Grande were closed to visitors in part because of illegal immigration, human smuggling, and drug smuggling.

In addition, the Fish and Wildlife Service reported in a 2007 internal document that it had not done enough to inform the public and key political officials about the dangers presented by cross-border smuggling activities. Illustrating this shortcoming, Fish and Wildlife Service South Texas Refuge Complex officials told us that refuge staff will tell visitors— when asked—of potential border issues during their visit, but that no standard public notification system exists, such as handouts, signs, or other means.

Interior lacks a nation- or borderwide system to analyze trends in illegal activity, according to department headquarters officials. These officials told us, however, that Interior is in the early stages of developing an incident management analysis and reporting system to provide a method for collecting, analyzing, and reporting information on illegal activity from all bureaus. Furthermore, these officials explained that this system is to assist officials in making staff and visitor safety decisions on Interior lands.

Establishing Conservation Measures to Reduce Adverse Effects to Endangered Species and Their Habitats

The Fish and Wildlife Service has also used data related to the environmental impacts of cross-border illegal activity to prepare biological opinions that establish measures to reduce adverse potential effects of Border Patrol actions on endangered species and their critical habitats along the southwestern border. For example, in a 2009 biological opinion, the Fish and Wildlife Service analyzed data on Border Patrol agents’ off- road vehicle use, routine activities at bases of operations, and road dragging, among other activities. They determined that these activities disturbed a certain endangered species and that establishment of a Border Patrol base of operations—including housing, lighting, parking, fuel, and generators for agents stationed at the base—contributed to the disturbance of the species by disrupting its traditional travel route. To mitigate these and other adverse impacts, Border Patrol agreed that no aircraft use, off- road vehicle travel, or other activities would occur within a quarter-mile of areas important for the species, except in emergency situations as defined by the 2006 memorandum of understanding.

In south Texas, the Fish and Wildlife Service analyzed data on Border Patrol activities—including portable and permanent lighting, clearing of vegetation for patrol roads, and ports of entry, and patrolling activities along the Rio Grande. The Fish and Wildlife Service determined that these activities have fragmented and reduced the amount of habitat suitable for the endangered ocelot. To minimize impacts to the ocelot and other species, Border Patrol agreed to a variety of measures, including working cooperatively with the Fish and Wildlife Service to identify lighting sites that would use 450-watt bulbs instead of 1,000-watt bulbs and reducing the number of roads through the river corridor to reduce habitat fragmentation.

The Fish and Wildlife Service also collected data on the environmental effects that construction, operation, and maintenance of SBInet towers in the Tucson Sector—including the construction and repair of roads and the placement of underground sensors—would have on several threatened and endangered species, including the Chiricahua leopard frog, Mexican spotted owl and its critical habitat, jaguar, lesser long-nosed bat, and Pima pineapple cactus. Land managers collected data on a range of impacts on these species, including habitat disturbance and loss; loss of foraging habitat; disturbance from nighttime lights and noise associated with construction, generators, and helicopter landings; and the potential to introduce nonnative plant species that contribute fuel to wildland fires. To minimize these impacts, Border Patrol has participated in several species’ recovery plans, to close and restore unauthorized roads to help offset the increase in new or improved roads, and to fund monitoring efforts for some species.

Conclusions

The steady northward flow of illegal human and narcotics traffic across the nation’s southwestern border shows no sign of stopping, and Border Patrol retains and asserts the ability to pursue undocumented aliens when and how it sees fit. Certain land management laws present some challenges to Border Patrol’s operations on federal lands, limiting to varying degrees the agency’s access to patrol and monitor some areas. With limited access for patrols and monitoring, some illegal entries may go undetected. This challenge can be exacerbated as illegal traffic shifts to areas where Border Patrol has previously not needed, or requested, access. Although mechanisms established in the 2006 memorandum of understanding provide a framework for Border Patrol and the federal land management agencies to resolve access issues, some issues remain unresolved. This lack of resolution remains because land management agencies have not always been able to complete required environmental and historic property assessments in a timely fashion—often because of limited resources or competing priorities—and the agencies have not taken advantage of resources that Border Patrol may have to offer to more quickly initiate these assessments. Moreover, conducting these required assessments on a case-by-case basis and without programmatic environmental impact statements to facilitate compliance with the National Environmental Policy Act may be a missed opportunity to expedite Border Patrol’s access to federal borderlands.

Border Patrol agents and land managers agree that Border Patrol’s presence is needed to protect natural and cultural resources on federal lands because, for instance, fewer illegal entries means less human traffic over environmentally sensitive areas. What agents perceive as routine patrol operations, however, can also have a lasting negative effect on the environment. Border Patrol has provided its new agents with some basic environmental training, but such training often is neither recurring nor specific to the land units that agents patrol. Land managers, on the other hand, have the natural and cultural resource expertise to share with agents about the potential environmental effects of their operations. Without more frequent and area-specific environmental and cultural resource training by land managers, Border Patrol agents may lack the awareness to modify their patrols in environmentally sensitive areas.

Recommendations for Executive Action

To improve the effectiveness of Border Patrol operations while also protecting cultural and natural resources on federal lands along the southwestern border, we recommend that the Secretaries of Homeland Security, the Interior, and Agriculture take the following two actions: To help expedite Border Patrol’s access to federal lands, the agencies should, when and where appropriate, (a) enter into agreements that provide for Customs and Border Protection to use its own resources to pay for or to conduct the required environmental and historic property assessments and (b) prepare programmatic National Environmental Policy Act documents for Border Patrol activities in areas where additional access may be needed.

As DHS, Interior, and the Forest Service continue developing a national training module on environmental and cultural resource stewardship, the agencies should incorporate the input of Border Patrol agents and land managers into the design and development of training content, which may include training that is recurring, area-specific, and provided by land managers.

Agency Comments and Our Evaluation

We provided a draft of this report for review and comment to the Departments of Homeland Security, the Interior, and Agriculture. DHS, Interior, and the Forest Service, responding on behalf of Agriculture, agreed with our report’s conclusions and recommendations. DHS’s and the Forest Service’s written comments are reprinted in appendixes III and IV, respectively; Interior provided its comments on October 7, 2010, by e-mail through its liaison to GAO. Interior also provided technical comments, which we incorporated into the report as appropriate.

We are sending copies of this report to the appropriate congressional committees; the Secretaries of Homeland Security, the Interior, and Agriculture; and other interested parties. In addition, this report is available at no charge on the GAO Web site at http://www.gao.gov.

If you or your staff members have any questions about this report, please contact me at (202) 512-3841 or mittala@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made major contributions to this report are listed in appendix V.

Objectives, Scope, and Methodology

Our objectives were to (1) describe the key land management laws Border Patrol operates under and how Border Patrol and land management agencies coordinate their responsibilities under these laws, (2) examine how Border Patrol operations are affected by these laws, and (3) identify the extent to which land management agencies collect data related to cross-border illegal activities and associated environmental impacts and how these data are used.

To describe the key land management laws Border Patrol operates under and how Border Patrol and land management agencies coordinate their responsibilities under these laws, we examined agency documents describing the laws that apply to Border Patrol operations on federal lands along the southwestern border and documents describing how Border Patrol and land management agencies are to coordinate their responsibilities under these laws. We corroborated our selection of key laws through interviews with Border Patrol, the Department of the Interior, and U.S. Forest Service officials in headquarters and at field units. To determine how Border Patrol and land management agencies coordinate their responsibilities under these laws, we interviewed relevant agency officials; reviewed local agreements, including documentation from local working groups and forums, and documentation related to a legal settlement over Border Patrol activities in a certain area with endangered species; and we reviewed the provisions of the 2006 interagency memorandum of understanding between the Department of Homeland Security (DHS), Interior, and the Department of Agriculture. In our interviews with Border Patrol agents and land managers, we determined how these various coordinating mechanisms have helped the agencies implement their respective legal responsibilities.

To examine how Border Patrol’s operations are affected by the laws we identified, we conducted selected site visits to 10 federal land units in Arizona, California, and Texas and to Border Patrol stations responsible for patrolling these units. We selected these units, and the stations responsible for patrolling them, on the basis of geographical diversity, the extent of and impact from cross-border illegal activity, and the type of land management agency. Further, we conducted telephone interviews with land managers for federal land units along the border that we did not visit, including those in New Mexico. In total, we interviewed land managers responsible for 18 federal land units along the southwestern border. Although the information we obtained is not generalizable to all land units, it represents a full spectrum of information available on the extent of and impact from cross- border illegal activity. In addition, we developed and used a structured interview to obtain the views of Border Patrol patrol agents-in-charge of the 26 Border Patrol stations in the borderlands region with primary responsibility for patrolling federal lands along the southwestern border. We surveyed these agents on whether and to what extent their operations have been affected by land management laws. We also analyzed documentation on how Border Patrol measures the effectiveness of its operations and reviewed 2 years (2009 and 2010) of Border Patrol operational assessments.

To examine the extent to which land managers collect data related to cross- border illegal activities and associated environmental impacts and how these data are used, we obtained a variety of data from land managers. Specifically, we identified what kinds of data land managers have collected and what kinds of data they have relied on Border Patrol to provide, and we reviewed the varying quantities and types of data that land managers had on the environmental effects of cross-border illegal activities. We also reviewed data that land managers have collected on the environmental effects of Border Patrol’s response to cross-border illegal activities, such as constructing fences and using vehicles off established roads to pursue suspected undocumented aliens. We also used information from our structured interviews with Border Patrol agents. Additionally, we obtained environmental data that DHS and land managers used to determine funding for mitigation efforts related to environmental damage caused by certain DHS border fencing projects. Through our interviews with land managers and reviews of their data collection efforts, we analyzed the various ways that land managers have used data on cross-border illegal activity and its environmental impacts. This analysis included reviewing how land managers have used data to set priorities for and carry out cleanup and restoration work, reviewing the various types of environmental stewardship training provided by land managers to Border Patrol agents, reviewing numerous biological opinions related to Border Patrol activities, and documenting various ways land managers help ensure staff and visitor safety on federal lands. We corroborated these data by obtaining and reviewing them where possible.

We conducted this performance audit from December 2009 to October 2010, in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Mitigation Projects Identified by Interior to Be Funded under a DHS and Interior Interagency Agreement

Implementation of Sasabe biological opinion (jaguar, bat, and soil stabilization)

Ariz.

Implementation of Lukeville biological opinion (Sonoran pronghorn, bat conservation)

Ariz.

Tex.

Ariz.

Ariz.

Calif.

Tex.

Calif.

Ariz.

Calif.

Ariz.

N.Mex.

Ariz.-N.Mex.

N.Mex.

Tex.

Ariz.

Ariz.

Ariz.-N.Mex.

Ariz.

Ariz.

Ariz.

Ariz.

Ariz.

Ariz.

Ariz.

N.Mex.

N.Mex.

N.Mex. , 2010.

Comments from the Department of Homeland Security

Comments from the Department of Agriculture

GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, David P. Bixler, Assistant Director; Nathan Anderson; Ellen W. Chu; Charlotte Gamble; Rebecca Shea; Jeanette Soares; and Richard M. Stana made major contributions to this report. Also contributing to this report were Joel Aldape, Lacinda Ayers, Muriel Brown, and Brian Lipman.