[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
DESTROYING SACRED SITES AND ERASING TRIBAL CULTURE: THE TRUMP
ADMINISTRATION'S CONSTRUCTION OF THE BORDER WALL
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE FOR INDIGENOUS PEOPLES OF THE UNITED STATES
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
Wednesday, February 26, 2020
__________
Serial No. 116-32
__________
Printed for the use of the Committee on Natural Resources
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
or
Committee address: http://naturalresources.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
40-260 PDF WASHINGTON : 2020
COMMITTEE ON NATURAL RESOURCES
RAUL M. GRIJALVA, AZ, Chair
DEBRA A. HAALAND, NM, Vice Chair
GREGORIO KILILI CAMACHO SABLAN, CNMI, Vice Chair, Insular Affairs
ROB BISHOP, UT, Ranking Republican Member
Grace F. Napolitano, CA Don Young, AK
Jim Costa, CA Louie Gohmert, TX
Gregorio Kilili Camacho Sablan, Doug Lamborn, CO
CNMI Robert J. Wittman, VA
Jared Huffman, CA Tom McClintock, CA
Alan S. Lowenthal, CA Paul A. Gosar, AZ
Ruben Gallego, AZ Paul Cook, CA
TJ Cox, CA Bruce Westerman, AR
Joe Neguse, CO Garret Graves, LA
Mike Levin, CA Jody B. Hice, GA
Debra A. Haaland, NM Aumua Amata Coleman Radewagen, AS
Joe Cunningham, SC Daniel Webster, FL
Nydia M. Velazquez, NY Liz Cheney, WY
Diana DeGette, CO Mike Johnson, LA
Wm. Lacy Clay, MO Jenniffer Gonzalez-Colon, PR
Debbie Dingell, MI John R. Curtis, UT
Anthony G. Brown, MD Kevin Hern, OK
A. Donald McEachin, VA Russ Fulcher, ID
Darren Soto, FL
Ed Case, HI
Steven Horsford, NV
Michael F. Q. San Nicolas, GU
Matt Cartwright, PA
Paul Tonko, NY
Jesus G. ``Chuy'' Garcia, IL
Vacancy
David Watkins, Chief of Staff
Sarah Lim, Chief Counsel
Parish Braden, Republican Staff Director
http://naturalresources.house.gov
------
SUBCOMMITTEE FOR INDIGENOUS PEOPLES OF THE UNITED STATES
RUBEN GALLEGO, AZ, Chair
PAUL COOK, CA, Ranking Republican Member
Darren Soto, FL Don Young, AK
Michael F. Q. San Nicolas, GU Aumua Amata Coleman Radewagen, AS
Debra A. Haaland, NM John R. Curtis, UT
Ed Case, HI Kevin Hern, OK
Matt Cartwright, PA Vacancy
Jesus G. ``Chuy'' Garcia, IL Rob Bishop, UT, ex officio
Vacancy
Raul M. Grijalva, AZ, ex officio
------
CONTENTS
----------
Page
Hearing held on Wednesday, February 26, 2020..................... 1
Statement of Members:
Gallego, Hon. Ruben, a Representative in Congress from the
State of Arizona........................................... 1
Prepared statement of.................................... 2
Gosar, Hon. Paul A., a Representative in Congress from the
State of Arizona........................................... 3
Prepared statement of.................................... 4
Grijalva, Hon. Raul M., a Representative in Congress from the
State of Arizona........................................... 5
Prepared statement of.................................... 6
Statement of Witnesses:
Cameron, Scott, Principal Deputy Assistant Secretary for
Policy, Management, and Budget, U.S. Department of the
Interior, Washington, DC................................... 68
Prepared statement of.................................... 69
Questions submitted for the record....................... 72
Hodapp, Steve, Retired Independent Contractor and
Environmental Specialist, Lexington, Virginia.............. 37
Prepared statement of.................................... 39
Questions submitted for the record....................... 42
Krakoff, Sarah, Moses Lasky Professor of Law, University of
Colorado School of Law, Boulder, Colorado.................. 19
Prepared statement of.................................... 21
Questions submitted for the record....................... 23
Norris, Jr., Hon. Ned, Chairman, Tohono O'odham Nation,
Sells, Arizona............................................. 7
Prepared statement of.................................... 9
Questions submitted for the record....................... 15
O'Loughlin, Shannon Keller, Executive Director, Association
on American Indian Affairs, Rockville, Maryland............ 24
Prepared statement of.................................... 26
Questions submitted for the record....................... 31
Ortiz, Anna Maria, Director, Natural Resources and
Environment, U.S. Government Accountability Office,
Washington, DC............................................. 57
Prepared statement of.................................... 59
Questions submitted for the record....................... 67
Additional Materials Submitted for the Record:
Chairman Grijalva Opening Statement PowerPoint Presentation.. 80
Chairman Grijalva Border Tour Notes, January 20, 2020........ 84
Chairman Grijalva Photo Submissions from Border Wall Tour.... 86
Coalition Comments on Proposed Border Walls in Arizona's Pima
and Cochise Counties, July 5, 2019 Letter to Paul Enriquez,
U.S. Border Patrol......................................... 90
National Parks Conservation Association, July 3, 2019 Letter
to U.S. Customs and Border Protection...................... 106
Stanton, Hon. Greg, a Representative in Congress from the
State of Arizona, Statement of............................. 109
Southern Border Communities Coalition, Statement of.......... 110
U.S. Customs and Border Protection, Roy D. Villareal, Tucson
Sector Chief, January 10, 2020 Letter to Chairman Norris of
the Tohono O'odham Nation of Arizona....................... 114
U.S. Customs and Border Protection, Tucson Sector, Media
Advisory: Monument Hill Controlled Detonation and Briefing,
February 24, 2020.......................................... 117
Washington Post, ``Border fence construction could destroy
archaeological sites, National Park Service finds,''
September 17, 2019 by Juliet Eilperin and Nick Miroff...... 118
OVERSIGHT HEARING ON DESTROYING SACRED SITES AND ERASING TRIBAL
CULTURE: THE TRUMP ADMINISTRATION'S CONSTRUCTION OF THE BORDER WALL
----------
Wednesday, February 26, 2020
U.S. House of Representatives
Subcommittee for Indigenous Peoples of the United States
Committee on Natural Resources
Washington, DC
----------
The Subcommittee met, pursuant to notice, at 3:06 p.m., in
room 1324, Longworth House Office Building, Hon. Ruben Gallego
[Chairman of the Subcommittee] presiding.
Present: Representatives Gallego, Soto, Haaland, Garcia,
Grijalva, Neguse; Bishop and Gosar.
Mr. Gallego. Thank you for everyone being here. We will
start with opening statements on my behalf, and we will not
move to any type of questions until our Ranking Member shows up
out of respect for the process here. And I am sure they will be
joining us soon.
STATEMENT OF THE HON. RUBEN GALLEGO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Gallego. Good afternoon. Today's oversight hearing is
entitled, ``Destroying Sacred Sites and Erasing Tribal Culture:
The Trump Administration's Construction of the Border Wall.''
Before I begin, I want to thank our witnesses here today for
taking time to testify about the reckless, harmful destruction
of sacred places along our southern border. As we will learn
today, this Administration has blasted and bulldozed multiple
sites, including burial grounds, along the southern border that
are sacred to the religion and culture of the Tohono O'odham
Nation without any kind of meaningful tribal consultation, and
often without advanced notice.
So far in my tenure as Chairman of the Subcommittee, I have
been appalled at the utter lack of regard this Administration
has for upholding our legal trust responsibilities to Indian
tribes to protect their sovereignty, their way of life and,
yes, their sacred sites.
Today, we have reached a new low. Not only has this
Administration been negligent in its trust responsibility by
destroying sacred sites, but DHS and the White House refused
our invitation to be here today to explain their actions. In
fact, we only learned at 5 p.m. last night, less than 24 hours
in advance, that the Interior Department would be sending a
witness today.
According to the testimony received last night, the
Interior Department will, in part, argue today that blasting
sacred sites and cutting down hundred-year-old Saguaro cacti to
build a border wall will actually ``help us maintain the
character of these lands and resources.'' The Administration's
gaslighting argument of ``we have to destroy it in order to
protect it'' is as plainly ridiculous as it is offensive. It is
insult to this Committee and to the tribal leaders and
advocates who have traveled here today to testify.
This Administration apparently has no shame for the damage
that it is causing to tribal burial grounds. For the Tohono
O'odham Nation, this is the equivalent of bulldozing through
parts of Arlington National Cemetery. They are so shameless
that, as we speak, CBP is holding a press event in Arizona
entitled, ``Monument Hill Controlled Detonation and Briefing,''
which features a briefing from CBP personnel and a live
detonation on Monument Hill.
So, rather than sit before this Subcommittee, the
Department of Homeland Security is detonating sacred burial
grounds for a captive audience. I want to be clear--when sacred
cultural sites are destroyed in international conflict, it is
considered a war crime.
Earlier this year, we saw President Trump repeatedly
threaten to destroy sacred sites in Iran, to the condemnation
of many, including myself, in this country.
Well, today, as we speak, this White House is doing just
that on American soil. Places like Monument Hill and the
Quitobaquito Springs have been held sacred by the O'odham
people since before the United States existed. You will hear
from experts and the Tribe itself today that these physical
places are critical to their culture and religion. It is not
enough to do a survey of a cultural site only to blast it away.
It is not enough to remove bone fragments that are found and
return them to the Tribe when the burial site itself is being
destroyed. And it is not enough to shoot an e-mail to Chairman
Norris mere hours before you bulldoze a site his people have
held sacred since time immemorial.
These actions are disgusting as well as a flagrant
violation of the requirement to consult tribes before decisions
are made and to hold in trust the interests and well-being of
tribal nations. This behavior is not reflective of the America
I have fought for, and I cannot imagine what I would do if I
knew that anyone was desecrating the burial grounds of the men
and women I fought with at Arlington.
It is this Committee's mission to shine a light on these
atrocities and fight like hell to prevent them from continuing.
That is why I am grateful to have legal experts, tribal
leaders, and advocates here today. I greatly look forward to
your testimony.
[The prepared statement of Mr. Gallego follows:]
Prepared Statement of the Hon. Ruben Gallego, Chair, Subcommittee for
Indigenous Peoples of the United States
Good afternoon. Today's oversight hearing is entitled ``Destroying
Sacred Sites and Erasing Tribal Culture: The Trump Administration's
Construction of the Border Wall.''
Before I begin, I want to thank our witnesses here today for taking
the time to testify about the reckless, harmful destruction of sacred
places along our Southern Border.
As we will learn today, this Administration has blasted and
bulldozed multiple sites--including burial grounds--along the Southern
Border that are sacred to the religion and culture of the Tohono
O'odham people without any kind of meaningful tribal consultation, and
often without advanced notice.
So far in my tenure as Chairman of this Subcommittee, I have been
appalled at the utter lack of regard this Administration has for
upholding our legal trust responsibilities to Indian tribes to protect
their sovereignty, their way of life and--yes--their sacred sites.
Today, we have reached a new low. Not only has this Administration
been negligent in its trust responsibility by destroying sacred sites,
but DHS and the White House refused our invitation to be here today to
explain their actions. In fact, we only learned at 5 p.m. last night--
less than 24 hours in advance--that the Interior Department would be
sending a witness today.
According to the testimony we received last night, the Interior
Department will, in part, argue today that blasting sacred sites and
cutting down hundred-year-old Saguaro cacti to build a border wall will
actually, ``help us maintain the character of these lands and
resources.'' The Administration's gaslighting argument of ``we have to
destroy it, in order to protect it'' is as plainly ridiculous as it is
offensive. It is insult to this Committee, and to the tribal leaders
and advocates who traveled here today to testify.
This Administration apparently has no shame for the damage it is
causing to tribal burial grounds--for the Tohono O'odham this is the
equivalent of bulldozing through parts of Arlington National Cemetery.
They are so shameless that, as we speak, CBP is holding a press event
in Arizona entitled ``Monument Hill Controlled Detonation and
Briefing,'' which features a briefing from CBP personnel and a live
detonation on Monument Hill.
So rather than sit before this Subcommittee, the Department of
Homeland Security is detonating sacred burial grounds for a captive
audience. I want to be clear: when sacred cultural sites are destroyed
in international conflict, it is considered a war crime.
Earlier this year, we saw President Trump repeatedly threaten to
destroy sacred sites in Iran--to the condemnation of many, including
myself, in this country.
Well today, as we speak, this White House is doing just that on
American soil. Places like Monument Hill and Quitobaquito Springs have
been held sacred by the O'odham peoples since before the United States
existed. We will hear from the experts and the Tribe itself today that
these physical places are critical to their culture and religion. It is
not enough to do a survey of a cultural site only to blast it anyway.
It is not enough to remove bone fragments that are found and return
them to the Tribe when the burial site itself is being destroyed. It is
not enough to shoot an e-mail to Chairman Norris mere hours before you
bulldoze a site his people have held sacred since time immemorial.
These actions are disgusting as well as a flagrant violation of the
requirement to consult with tribes before decisions are made and to
hold in trust the interest and well-being of Tribal Nations. This
behavior is not reflective of the America I have fought for, and I
cannot imagine what I would do if I knew that anyone was desecrating
the burial grounds of the men and women I fought with at Arlington
Cemetery.
It is this Committee's mission to shine a light on these atrocities
and fight like hell to prevent them from continuing. That's why I am
grateful to the legal experts, tribal leaders, and advocates here
today.
I greatly look forward to your testimony.
______
Mr. Gallego. I now recognize the Ranking Member,
Representative Gosar, for any opening remarks.
STATEMENT OF THE HON. PAUL A. GOSAR, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Dr. Gosar. Thank you, Mr. Chairman. I have stated before
that the most important task of the Federal Government is to
keep its citizens safe. The flow of drugs and people across our
southern border is extremely dangerous, and our Border Patrol
is stretched too thin after years of neglect by the previous
administrations.
I know too well that violence in countries south of us
drives illegal migration, but those who promote open borders
here are doing a favor to the drug cartels, terrorists, and
human traffickers.
I have supported legislation that provides comprehensive
border security by fully funding a border wall and ensuring
that we are not only stopping dangerous criminals from coming
here illegally, but we are also bringing criminals to justice
that are already here. I do, however, believe that we should
always be respectful in cases where border security interests
intersect with tribal interests.
No one in this room believes that there should ever be a
desecration of cultural artifacts or remains. I am disappointed
when illegal activities have caused cultural sites to be lost.
As has been mentioned, broad waiver authority has been
exercised in certain circumstances with the construction of the
border wall, but the Department of the Interior has still been
using and adhering to processes found in the Native American
Graves Protection and Repatriation Act or NAGPRA.
Information from the Department of the Interior shows that
two bone fragments to date have been discovered in the project
area, dating from the Archaic to Historic time periods. Both
are in the process of being returned to the nearest tribe, the
Tohono O'odham. It is my understanding that the water
monitoring systems have been put in place to ensure levels
remain the same at Quitobaquito Springs.
Mr. Gallego. I think you did pretty good. Yes, I am
impressed.
Dr. Gosar. I had one try at that.
Illegal migration and the flow of drugs has a monumental
impact on our communities. We must work together to help stop
the harm to tribes, the American people, and to the
environment.
I want to thank the witnesses for being here today and look
forward to their testimony, especially the Chairman. We just
saw each other earlier last week so 2 weeks in a row.
[The prepared statement of Dr. Gosar follows:]
Prepared Statement of the Hon. Paul A. Gosar, a Representative in
Congress from the State of Arizona
Thank you, Mr. Chairman.
I have stated before that the most important task of the Federal
Government is to keep its citizens safe. The flow of drugs and people
across our southern border is extremely dangerous, and our Border
Patrol is stretched too thin after years of neglect by the previous
administration.
I know too well that violence in countries south of us drives
illegal migration. But those who promote open borders here are doing a
favor to drug cartels, terrorists, and human traffickers.
I have supported legislation that provides comprehensive border
security by fully funding a border wall and ensuring that we're not
only stopping dangerous criminals from coming here illegally, but we're
also bringing criminals to justice that are already here. I do,
however, believe that we should always be respectful in cases where
border security interests intersect tribal interests.
No one in this room believes that there should ever be a
desecration of cultural artifacts or remains. I am disappointed when
illegal activities have caused cultural sites to be lost.
As has been mentioned, broad waiver authority has been exercised in
certain circumstances with the construction of the border wall, but the
Department of the Interior has still been adhering to processes found
in the Native American Graves Protection and Repatriation Act or
NAGPRA.
Information from the Department of the Interior shows that two bone
fragments to-date have been discovered in the project area, dating from
the Archaic to Historic time periods. Both are in the process of being
returned to the nearest tribe, the Tohono O'odham. It is my
understanding that water monitoring systems have been put in place to
ensure levels remain the same at Quitobaquito Springs.
Illegal migration and the flow of drugs has a monumental impact on
our communities. We must work together to help stop the harm to tribes,
the American people, and the environment.
I want to thank the witnesses for being here today and look forward
to their testimony.
Thank you, Mr. Chairman.
______
Dr. Gosar. With that, I yield back to you, Mr. Chairman.
Mr. Gallego. Thank you, Ranking Member. I now yield time to
Chairman Grijalva for opening remarks.
STATEMENT OF THE HON. RAUL M. GRIJALVA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Grijalva. Thank you very much, Mr. Chairman, and
Ranking Member for this important hearing and also thanking the
witnesses for traveling here today and I am going to echo the
sentiments of Chair Gallego by expressing my deep
disappointment that the White House and the Department of
Homeland Security did not send representatives in a timely
manner and did not respond early enough to this hearing.
Last month, on Martin Luther King Jr. Day, the Tohono
O'odham Nation Chairman Norris led me on a tour of sacred sites
located in the Organ Pipe National Monument. These sites were
areas of significant cultural and historic importance to the
Nation, including other tribes in the state of Arizona. As I
speak, you will see photos from our visit.
The first site we visited was Monument Hill. This is an
area sacred to the O'odham people because it is a place where
they respectfully placed Apache warrior remains following a
raid. This hill is first documented and mentioned in Father
Kino's letters when there was nothing there, no communities,
nothing, except the O'odham people.
To my knowledge, the Tribe notified the Administration that
this area was of cultural significance, yet the grading and
widening of the road was still conducted, as you can see in
this photo. DHS mentioned that they would back off on
developing the hill, but the work is still being done. Two
weeks following the visit at Monument Hill on February 6, 2020,
I received word that the Department of Homeland Security began
using explosives on the hill to construct its wall, and we have
a video of that as well.
[Video shown.]
Mr. Grijalva. The second place we visited was Quitobaquito
Springs, an area mentioned in historic papers as early as the
17th century. Not only does this area host sacred spring water,
it is also the location of a village and burial grounds of
ancestral O'odham people. Tribal archaeologists showed me bone
fragments in this area.
On January 27, 2020, just 7 days following the visit, the
Department of Homeland Security bulldozed the artifacts area
that held sacred seashells, bone fragments, and pottery
fragments. Thousands of years of history and cultural
significance disappeared.
Since my visit, 50 percent of the sacred sites identified
by the Nation have been destroyed. The fact that the Federal
Government has continued to blast this area with human bone
fragments of several tribes in the 21st century is, quite
frankly, barbarous.
What would normally be considered a war crime for
destroying cultural sites in another country is now considered
status quo of this President and his administration and this
needs to stop. In fact, just last week, the Department of
Homeland Security spokeswoman stated, ``The United States is in
a border emergency. We are building more wall faster than ever
before.'' The Department is not consulting the Tribe faster
than it did before.
It is clear this Administration will not uphold its trust
responsibility to tribes. We see that with the inconsistencies
with each agency's tribal consultation policy and their lack of
implementing some form of communication with tribes, especially
when it comes to major projects that drastically impact sacred
sites.
As a country, we should be completely appalled by the steps
this Administration has taken to desecrate the sacred sites.
And it has been completed when this hideous wall is being
erected.
I look forward to hearing from our witnesses today, Mr.
Chairman, and getting some answers as to why this
Administration continues to treat tribes as second-class
citizens on the lands they have owned and lived on before the
very development of this country.
[The prepared statement of Mr. Grijalva follows:]
Prepared Statement of the Hon. Raul M. Grijalva, Chair, Committee on
Natural Resources
Good afternoon, everyone.
I'd like to thank our witnesses for traveling here today and echo
the sentiments of Chair Gallego by expressing my deep disappointment
that the White House and the Department of Homeland Security did not
send representatives to answer the most important question for this
hearing and future hearings involving Indian Country--When will you
stop destroying sacred sites?
Last month, on Martin Luther King, Jr. Day the Tohono O'odham
Nation Chairman Norris led me on a tour of sacred sites located in
Organ Pipe National Monument. These sites were areas of significant
cultural and historical importance to the Tohono O'odham people
including other tribes in the state of Arizona. As I speak, you'll see
photos from our visit.
The first site we visited was Monument Hill. This is an area sacred
to the O'odham people because it is a place where they respectfully
placed Apache warriors following a raid. This hill is first documented
and mentioned in Father Kino's letters when there was no Sonoita.
To my knowledge the Tribe notified the Administration that this
area was of cultural significance, yet the grading and widening of the
road was still conducted--as you can see in this photo. DHS mentioned
that they would back off on developing the Hill, but the work is still
being done. Two weeks following my visit at Monument Hill on February
6, 2020 I received word that the Department of Homeland Security began
using explosives on the Hill to construct its wall. We have a video of
that.
The second place we visited was just outside Quitobaquito Springs,
an area mentioned in historical papers as early as the 17th century.
Not only does this area host sacred spring water, it was also the
location of a village and burial grounds for the Hia-C'ed O'odham.
Tribal archeologists showed me bone fragments in this area.
On January 27, 2020--just 7 days following my visit the Department
of Homeland Security bulldozed the artifacts area that held sacred
seashells, bone fragments, and pottery fragments. Thousands of years of
history and cultural significance gone.
Since my visit, 50 percent of the sacred sites identified by the
Nation has been destroyed. The fact that the Federal Government is
continuing to blast this area with human bone fragments of several
tribes in the 21st century is barbarous.
What would normally be considered a war crime for destroying
cultural sites in another country is NOW considered the status quo of
this President and his Administration. This needs to stop. In fact,
just last week the Department of Homeland Security spokeswoman stated,
``The United States is in a border emergency, we are building more wall
faster than ever before.'' The Department is not consulting the Tribe
faster than it was before.
It is clear this Administration will not uphold its trust
responsibility for tribes. We see that with inconsistencies with each
agency's tribal consultation policy and their lack of implementing some
form of communication with tribes especially when it comes to major
projects that drastically impact sacred sites.
As a country we should be completely appalled by the steps this
Administration has taken to ensure the desecration of sacred sites is
completed before its hideous wall is erected.
I look forward to hearing from our witnesses today and getting some
answers to why this Administration continues to treat tribes as second-
class citizens in the lands they owned before the very development of
this country.
Thank you.
______
Mr. Grijalva. With that, Mr. Chairman, I yield back and
appreciate the time.
Mr. Gallego. Thank you, Mr. Chairman. We will now turn to
our witnesses. I would like to transition to our first panel of
witnesses for today. Under our Committee Rules, oral statements
are limited to 5 minutes, but you may submit a longer statement
for the record if you choose.
When you begin, the lights on the witness table will turn
green. After 4 minutes, the yellow light will come on. Your
time will have expired when the red light comes on, and I will
ask you to please wrap up your statement. I will also allow the
entire panel to testify before we question the witnesses. The
Chair now recognizes the Hon. Ned Norris, the Chairman of the
Tohono O'odham Nation of Arizona.
STATEMENT OF HON. NED NORRIS, JR., CHAIRMAN, TOHONO O'ODHAM
NATION, SELLS, ARIZONA
Mr. Norris. Good afternoon, Chairman Gallego, Ranking
Member Cook, and distinguished members of this Subcommittee. It
is an honor to have been invited to testify before you today.
It is my great honor also to recognize Committee Chairman Raul
Grijalva, in whose district our tribal nation is located. I am
Ned Norris, Jr., and I am the Chairman of the Tohono O'odham
Nation, a federally recognized tribe with more than 34,000
tribal citizens.
We have lived in what is now Arizona and Northern Mexico
since time immemorial. With no consideration for our sovereign
rights or the welfare of our people, the international boundary
was drawn through our ancestral territory in 1854, separating
our people and our lands. As a result, our reservation shares a
62-mile border with Mexico, the longest along the southern
border of any tribe in the United States.
Seventeen O'odham communities with approximately 2,000
tribal citizens are still located in our historical homelands
in Mexico. O'odham on both sides of the border share the same
language, culture, religion, and history. Our citizens cross to
participate in pilgrimages and ceremonies at important
religious and cultural sites on both sides of the border to
visit family and friends and to pay respects to love ones
buried in cemeteries on either side.
Today, only a portion of our ancestral territory is
encompassed within the boundaries of our current reservation.
Originally, our homelands ranged well beyond these boundaries
and included what is now Organ Pipe Cactus National Monument,
Cabeza Prieta National Wildlife Refuge, and the San Bernardino
National Wildlife Refuge.
The Nation has significant and well-documented connection
to these lands and the religious, cultural, and natural
resources located there, including at Quitobaquito Springs and
at Monument Hill. The National Park Service, the Federal agency
with management authority at the Organ Pipe National Monument,
has acknowledged that Quitobaquito Springs is sacred to the
Nation.
Nevertheless, CBP contractors working on the border wall
recently bulldozed a large area near Quitobaquito Springs,
destroying burial grounds. Another culturally important site is
Monument Hill, which is the final resting place for many of our
ancestors, as recovered bone fragments from these show. Earlier
this month, CBP contractors conducted blasting there, notifying
the Nation of its plans only the day the blasting occurred. And
I am sorry to report that just 2 hours ago, CBP conducted
another controlled detonation at Monument Hill, the Federal
Government's continued destruction of our religious and
cultural resources and nothing less but bulldozing of our
church grounds and our cemeteries. For us, this is no different
from DHS building a 30-foot wall along Arlington Cemetery or
through the grounds of the National Cathedral. These
destructive actions would not have occurred without the waiver
provision in Section 102(c) of the Illegal Immigration Reform
and Immigrant Responsibility Act.
That allows DHS to waive any law it wishes in order to
expedite border barrier construction. We urge Congress to
withdraw or at least limit DHS waiver authority that is
dangerously broad and has allowed DHS nearly dictatorial
authority to run roughshod over the rights of the Tohono
O'odham and other border communities in the United States.
There is no acceptable reason why border communities should not
be protected by the same laws and have the same ability to
challenge agency action as Americans living in every other part
of the United States.
Making matters worse for us is the lack of an enforceable
tribal consultation requirement. While agencies pay lip service
to consultation, tribal governments have little ability to
enforce consultation polities when Federal agencies choose to
ignore them. A statutory consultation requirement would help
put an end to the frequent disregard for our concerns, our
expertise, and our right to self-determination. The Federal
Government owes our government and the governments of local
border communities more respect. We wish to thank Chairman
Grijalva and Subcommittee Chairman Gallego for their efforts to
resolve this continuing problem with their introduction in the
last Congress of the Requirements, Expectations, and Standard
Procedures for Executive Consultation with Tribes Act and for
recently holding a hearing on similar draft legislation.
Preservation of history and culture of O'odham is not just
important to the Tohono O'odham Nation. It is important to the
preservation of the history and culture of the United States.
As we preserve Civil War battlefields and cemeteries and honor
holy places of worship everywhere in the United States, we also
must preserve and protect such places of significance to the
O'odham and first Americans in this part of our country. The
Nation thanks you for shining a light on an ongoing destruction
of our cultural resources and sacred sites. I am happy to
answer any questions.
[The prepared statement of Mr. Norris follows:]
Prepared Statement of the Honorable Ned Norris, Jr., Chairman, The
Tohono O'odham Nation of Arizona
introduction & historical background
Good afternoon, Chairman Gallego, Ranking Member Cook and
distinguished members of the Subcommittee. It is an honor to have the
opportunity to testify before you today on behalf of the Tohono O'odham
Nation of Arizona. I also want to recognize and honor Chairman
Grijalva, in whose district our Tribal Nation is located.
I am Ned Norris, Jr. and I am the Chairman of the Tohono O'odham
Nation, a federally recognized tribe with more than 34,000 enrolled
tribal citizens. Our ancestors have lived in what is now Arizona and
northern Mexico since time immemorial. With no consideration for our
people or our sovereign and historical rights, the international
boundary was drawn through our ancestral territory in 1854, separating
our people and our lands. As a result, today our Main Reservation
shares a 62-mile border with Mexico--the second-longest international
border of any tribe in the United States, and the longest on the
southern border. Seventeen O'odham communities with approximately 2,000
members are located in our historical homelands in Mexico. O'odham on
both sides of the border share the same language, culture, religion and
history. Tribal members regularly engage in border crossings for
pilgrimages and ceremonies at important religious and cultural sites on
both sides of the border. We also cross the border to visit family and
friends.
Today, only a portion of our ancestral territory is encompassed
within the boundaries of our current Reservation. Our original
homelands ranged well beyond these boundaries, and included what is now
the Organ Pipe Cactus National Monument (adjacent to the western
boundary of the Nation's Reservation and a UNESCO biosphere
reserve),\1\ the Cabeza Prieta National Wildlife Refuge, and the San
Bernardino National Wildlife Refuge to the east. The Nation has
significant and well-documented connections to these lands and the
religious, cultural and natural resources located there.
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\1\ Biosphere reserves are areas with unique ecosystems recognized
by the United Nations Educational, Scientific and Cultural Organization
(UNESCO) as special places for testing interdisciplinary approaches to
managing social and ecological systems. Each reserve promotes solutions
reconciling the conservation of biodiversity and sustainable use.
http://www.unesco.org/new/en/natural-sciences/environment/ecological-
sciences/biosphere-reserves/.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
.epsthe nation supports and is actively engaged in border security
efforts
The Nation has long been at the front lines of securing the border.
Over the past decade the Nation has spent an annual average of $3
million of our own tribal funds on border security and enforcement to
help meet the United States' border security responsibilities. The
Nation's police force typically spends more than a third of its time on
border issues, including the investigation of immigrant deaths, illegal
drug seizures, and human smuggling.
The Nation also has long-standing, positive working relationships
with Customs and Border Protection (CBP), Immigration and Customs
Enforcement (ICE) and other Federal law enforcement agencies. The
Nation has entered into several cooperative agreements with CBP and
ICE, and pursuant to numerous Tohono O'odham Legislative Council
resolutions has authorized a number of border security measures on its
sovereign lands to help CBP. Some examples include:
High Intensity Drug Trafficking (HIDTA) Task Force: The
Nation leads a multi-agency anti-drug smuggling task force
staffed by Tohono O'odham Police Department detectives, ICE
special agents, Border Patrol agents, and the FBI. This is
the only tribally-led High Intensity Drug Trafficking
(HIDTA) Task Force in the United States. In 2018, the
Nation's Task Force Commander W. Rodney Irby received an
award recognizing him as the HIDTA National Outstanding
Task Force Commander.
ICE office and CBP forward operating bases: Since 1974,
the Nation has authorized a long-term lease for an on-
reservation ICE office. The Nation also approved leases for
two CBP forward operating bases that operate on the
Nation's lands 24 hours, 7 days a week.
Vehicle barriers on our lands: CBP constructed extensive
vehicle barriers that run the entire length of the tribal
border and a patrol road that parallels it.
CBP checkpoints on our lands: The Nation has authorized
CBP checkpoints on the Nation's major east-west highway to
Tucson and the northern highway to Casa Grande.
Integrated Fixed Towers: The Nation approved a lease of
its lands to allow CBP to build an Integrated Fixed Tower
(IFT) system that will include surveillance and sensor
towers with associated access roads on the Nation's
southern and eastern boundaries to detect and help
interdict illegal entries.
Shadow Wolves, an ICE tactical patrol unit: The Nation
also has officers that are part of the Shadow Wolves, an
ICE tactical patrol unit based on our Reservation which the
Nation played a role in creating. The Shadow Wolves are the
only Native American tracking unit in the country, and its
officers are known for their ability to track and apprehend
immigrants and drug smugglers, using traditional tracking
methods. The Shadow Wolves have apprehended countless
smugglers and seized thousands of pounds of illegal drugs.
ongoing and imminent harm to sacred sites and cultural resources
Although the Nation has authorized these border security measures
on our tribal lands and we share the Federal Government's concerns
about border security, we strongly oppose the construction of a border
wall on our southern boundary. A wall is extremely expensive for the
American taxpayer, is ineffective in remote geographic areas like ours,
and is highly destructive to the religious, cultural and environmental
resources on which our members rely and which make our ancestral lands
sacred to our people. Ongoing construction of the wall already has and
will continue to disturb and destroy culturally significant sites and
cultural resources, tribal archeological resources, and sacred sites
and desecrate human remains.
The Nation has detailed the negative impacts of the border wall
construction that currently is underway in Arizona, which DHS is
calling Tucson Sector Projects 1, 2, and 3, and Yuma Sector 3, in
several amicus briefs that the Nation has filed in litigation
challenging construction of the border wall.\2\ Tucson Sector Projects
1 and 2 involve construction of a 43-mile long, 30-foot high concrete-
filled steel bollard fence (pedestrian barrier or wall) to replace
existing vehicle barriers and pedestrian fencing near the Lukeville
Port of Entry. The Yuma Sector Project contemplates over 30 additional
miles, connecting with these projects, and extending through Cabeza
Prieta National Wildlife Refuge and Organ Pipe Cactus National
Monument, and ending less than 2 miles from the western boundary of the
Nation's Reservation. Similar construction is moving forward to the
east of the Nation's Reservation in Tucson Sector Project 3, which
includes the San Bernardino National Wildlife Refuge. These projects
have caused and will continue to cause significant and irreparable harm
to cultural and natural resources of vital importance to the Nation,
including damage to those resources from construction and associated
impacts off the reservation, as well as damage caused by increased
migrant traffic and interdiction on our tribal lands.
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\2\ See, e.g., Sierra Club and Southern Border Communities
Coalition v. Donald J. Trump, No. 4:19-cv-00892-HSG, Amicus Curiae
Brief of Tohono O'odham Nation in Support of Plaintiff's Motion for
Supplemental Preliminary Injunction (June 18, 2019, N.D. Ca.) (Dkt. No.
172); Amicus Curiae Brief of Tohono O'odham Nation in Support of
Plaintiff's Motion for Partial Summary Judgment (October 18, 2019)
(Dkt. No. 215).
The Federal Government itself acknowledged the importance of the
Nation's interest in the areas now impacted by ongoing and contemplated
wall construction for the Tucson and Yuma Sector Projects. For example,
the National Park Service confirmed in its General Management Plan for
the Organ Pipe Cactus National Monument the importance of Quitobaquito
Springs to the Nation, which is located about 200 yards from the border
and which is an important part of the O'odham salt pilgrimage every
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year:
There are 11 springs in the monument, 8 of which are located at
Quitobaquito, by far the largest source of water. The pond and
dam at Quitobaquito were constructed in 1860, and the resulting
body of water is one of the largest oases in the Sonoran
Desert. The site is also sacred to the O'odham, who have used
the water from this spring for all of their residence in the
area.
. . .
There still exist sites within the monument which are sacred to
the O'odham, including Quitobaquito Springs . . . Even to the
present day, the O'odham continue to visit the monument to
collect sacred water from the Springs, to gather medicinal
plants, and to harvest the fruit of the organ pipe and saguaro
cactus.\3\
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\3\ U.S. National Park Service, Organ Pipe Cactus National
Monument, Final General Management Plan, Development Concept Plans,
Environmental Impact Statement (Feb. 1997), at 30, 33, available at
https://www.nps.gov/orpi/learn/management/upload/fingmp.pdf.
The Park Service also has recognized that there are O'odham burial
sites within Quitobaquito.\4\ In October 2019, the National Park
Service notified the Nation that it had found a human bone fragment
near Quitobaquito Springs, underscoring that it is a resting place for
our ancestors. Yet despite the Federal Government's documented
recognition of Quitobaquito Springs as a site sacred to the Nation, and
despite the Nation's long-standing relationship with CBP, Federal
contractors working on the Tucson Sector border wall recently bulldozed
and bladed a large area near Quitobaquito Springs, destroying a burial
site that the Nation had sought to protect and irreparably damaging the
most unique and significant oasis in the Sonoran Desert. There was no
advance consultation about the destruction of this site, no advance
notice given, and no effort to mitigate or avoid the irreparable damage
done to this sacred site.
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\4\ Id. at 158, citing Anderson, Keith M., Bell, Fillman and
Stewart, Yvonne G., Quitobaquito: A Sand Papago Cemetery, Kiva, 47, no
4 (Summer, 1982) at 221-22; see also Bell, Fillman, Anderson, Keith M.
and Stewart, Yvonne G., The Quitobaquito Cemetery and Its History, U.S.
National Park Service, Western Archeological Center (Dec. 1980),
available at http://npshistory.com/series/anthropology/wacc/
quitobaquito/report.pdf.
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Earlier this month, CBP contractors also conducted blasting in
support of wall construction efforts at another culturally important
site within Organ Pipe Cactus National Monument known as Monument
Hill.\5\ Monument Hill was historically used for religious ceremonies
by the Hia-C'ed O'odham (with whom the Nation has a shared ancestry).
It is the site of historical battles involving the O'odham and Apache
and is believed to be the final resting place for many tribal
ancestors, as recovered bone fragments there attest. CBP undertook this
action despite the fact that on multiple occasions last year the Nation
expressed its concerns, and in December 2019, CBP and other Federal
officials met with the Nation's Tribal Historic Preservation Officer
and staff, who explained the significance of Monument Hill and conveyed
the Nation's concerns about damage from the planned wall construction.
Nevertheless, CBP completely ignored the Nation's concerns and
suggestions for mitigating potential impacts from the wall
construction, and failed to even notify the Nation of its plans to
blast Monument Hill until the day that the blasting occurred.
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\5\ See Firozi, Paulina, The Washington Post, Sacred Native
American Burial Sites are being Blown Up for Trump's Border Wall,
Lawmaker Says (Feb. 9, 2020), available at https://
www.washingtonpost.com/immigration/2020/02/09/border-wall-native-
american-burial-sites/.
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This disrespect for our sacred sites and their desecration at the
hands of our Federal Government is deeply painful. These sites are not
only sacred to the Nation--they are a part of our shared cultural
heritage as United States citizens. As Americans, we all should be
horrified that the Federal Government has so little respect for our
religious and cultural values, and does not appear to have any
intention of slowing down enough to understand or avoid the harm it is
causing.
In response to the concerns raised in the press and by
environmental groups about the blasting at Monument Hill, CBP stated
that it had conducted unspecified ``surveys'' and found no cultural or
historical sites within the project area (defined as the 60-foot-wide
area of land adjacent to the border called the Roosevelt Reservation)
\6\--but this statement is entirely inconsistent with the information
regarding bone fragments and the ceremonial significance of Monument
Hill that was provided to CBP by the Nation's staff. CBP also said that
it had an ``environmental monitor'' in attendance to ensure that work
would stop if any ``unidentified culturally sensitive artifacts'' were
found during the blasting. But the fact is that CBP has one monitor in
place for the entirety of Organ Pipe Cactus National Monument, and
there are multiple crews working on clearing and constructing the wall
at different locations along the border within the Monument, making it
extremely unlikely that one monitor can adequately cover all the
locations. Nor is it clear that the monitor was aware of the
significance of Monument Hill nor likely that he could identify human
bone fragments should any be recovered during the blasting--bone
fragments typically require additional testing to determine whether
they are human or animal.
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\6\ Carranza, Rafael, The Republic, No Cultural Sites Found Where
Crews are Blasting Sacred Mountain for Border Wall, Officials Say (Feb.
13, 2020), available at https://www.azcentral.com/story/news/politics/
border-issues/2020/02/13/customs-border-protection-no-cultural-sites-
near-blasting-border-wall-tohono-oodham-nation/4743103002/.
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CBP's claims also are completely at odds with the results of a July
2019 National Park Service survey, which identified five new
archeological sites (of pre-contact Native American artifacts) and a
large number of additional archeological resources within the 60-foot-
wide Federal easement along the border in Organ Pipe. The survey noted
that many existing archeological sites will be impacted or destroyed by
the border wall construction, and highlighted that many areas along the
Organ Pipe border remain unsurveyed--making consultation and careful
surveying critical before additional construction occurs.\7\
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\7\ Veech, Andrew S., Archeological Survey of 18.2 Kilometers (11.3
Miles) of the U.S.-Mexico International Border, Organ Pipe Cactus
National Monument, Pima County, Arizona, U.S. National Park Service,
Intermountain Region Archeology Program (July 2019), available at
https://games-cdn.washingtonpost.com/notes/prod/default/documents/
cbd7ef6a-3b5b-4608-9913-4d 488464823b/note/7a429f63-9e46-41fa-afeb-
c8e238fcd8bb.pdf (discovery of 5 new archeological sites and 55
isolated finds; recommending additional evaluation of sites, noting
that 17 identified archeological sites will be destroyed by the border
wall construction, and that many areas along the border within the
Monument remain unsurveyed).
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But such care and consultation seem extremely unlikely, as the
Federal Government continues to plow full steam ahead with construction
of the border wall, with no apparent concern for tribal culture or
religious sites. Indeed, a similar fate likely awaits many other of the
Nation's cultural and sacred sites, including a burial site immediately
adjacent to the border and another site called Las Playas, both located
in Cabeza Prieta National Wildlife Refuge.\8\ These and other sites of
significance to the Nation, including some in the immediate vicinity of
Tucson Sector Project 3 in the San Bernardino Valley, have been
documented in other Federal reports, although these areas are less well
surveyed so the potential for destruction of cultural and natural
resources by construction of a border wall is high.\9\ But there is
little question that the ongoing construction of 30-foot-high steel
bollard wall in this area will have serious negative impacts,
destroying tribal culture and sacred sites. Finally, while the focus of
this hearing is on sacred sites, I must underscore as well the
environmental damage that ongoing wall construction is wreaking on
wildlife and trees, cacti, and other plants of documented significance
to the Nation. Also adversely affected are vitally important sources of
water, and we are deeply concerned about flooding in those areas where
construction occurs.\10\ All for the sake of a vanity project that will
not effectively secure the border.
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\8\ Carranza, Rafael, The Republic, Tohono O'odham Historic Sites
at Risk as Border Wall Construction Advances in Arizona (Jan. 20,
2020), available at https://www.azcentral.com/story/news/local/pinal/
2020/01/21/tohono-oodham-historic-sites-risk-over-border-wall-
construction/4527025002/.
\9\ Fish, Paul R.; Fish, Suzanne K.; Madsen, John H., Prehistory
and early history of the Malpai Borderlands: Archaeological synthesis
and recommendations, U.S. Department of Agriculture, Forest Service
(2006) at 29-30, available at https://www.fs.fed.us/rm/pubs/
rmrs_gtr176.pdf; U.S. Fish and Wildlife Service, Cabeza Prieta National
Wildlife Refuge: Comprehensive Conservation Plan, Wilderness
Stewardship Plan and Environmental Impact Statement (Aug. 2006) at 172,
586, available at https://www.fws.gov/uploadedFiles/CPNWREIS.pdf; U.S.
Fish and Wildlife Service, Environmental Assessment of the Malpai
Borderlands Habitat Conservation Plan (July 26, 2008) at 17, available
at https://www.fws.gov/southwest/es/arizona/Documents/HCPs/Malpai/
MBHCP%20EA%20w%20FONSI.pdf.
\10\ See Sierra Club, Amicus Curiae Brief of Tohono O'odham Nation
at 7-8.
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formal government-to-government consultation with the nation is
required
The Federal Government's actions are even more offensive because it
has completely ignored its trust responsibility to tribes and its legal
obligation to consult with the Nation regarding ongoing and planned
construction of the border wall--before decisions are made about
construction that will impact tribal resources and lands. Section
102(c) of the Illegal Immigration Reform and Immigrant Responsibility
Act (IIRIRA) provides the Secretary of DHS with exceptionally broad
authority to ``waive all legal requirements'' he determines are
necessary to ensure expeditious construction of border barriers and
roads. See 8 U.S.C. Sec. 1701 note. In 2008, DHS issued a waiver that
covers a large portion of the southern border in California, New
Mexico, Texas and Arizona, including the Tohono O'odham Nation's border
with Mexico. See 73 Fed. Reg. 19087 (April 8, 2008) (correction). In
2019, DHS issued additional waivers covering the area of the border
where the Tucson Sector Projects are underway. See 84 Fed. Reg. 21798
(May 15, 2019). In fact, this Administration has issued multiple
waivers to facilitate construction of the border wall--17 times in the
last 2\1/2\ years. As a result, DHS has been given a complete pass to
entirely ignore virtually all potentially applicable Federal
environmental, cultural and religious protection laws, and all Federal,
state or other laws, regulations and legal requirements deriving from
or related to the subject of those Federal laws. Id. at 19080. As you
know, with its aggressive raiding of other Federal agency budgets, DHS
is also now ignoring the budget limitations Congress placed on this
construction.
However, IIRIRA also requires DHS to consult with Indian tribes,
the Department of the Interior, state and local governments and
property owners ``to minimize the impact on the environment, culture,
commerce and quality of life'' of the construction of the border wall.
IIRIRA Section 102(b)(1)(C). To date, DHS has not complied with this
statutory directive, and has failed to engage in any formal government-
to-government consultation with the Nation regarding the ongoing
construction of the border wall and the serious harm that it is causing
to the Nation. Although CBP has engaged in telephonic conversations and
meetings with the Nation, primarily with the Nation's staff rather than
its leadership, these actions do not constitute the government-to-
government consultation that is required by law. The failure to engage
in formal consultation with tribal governments before decisions are
made that will affect tribal rights and interests violates not just
IIRIRA, but Executive Order No. 13175, ``Consultation and Coordination
with Indian Tribal Governments'' (Nov. 6, 2000), and the DHS Tribal
Consultation Policy (Sections II.B. and III.A), as well as the Federal
Government's general trust obligation to respect tribal sovereignty and
engage with tribes on a government-to-government basis.
In November 2019, the Nation wrote a letter to CBP requesting that
CBP engage in the statutorily and administratively required
consultation and proposed several mitigation measures (including a
buffer zone around Quitobaquito Springs) to address the harms that were
occurring to the Nation's resources as a result of the Tucson Sector
wall construction. In its January 2020 response to the Nation's letter,
CBP declined all of the Nation's requests--for information, for a
schedule, and for mitigation.\11\ In the letter, CBP also declined to
engage in formal government-to-government consultation with the Nation
prior to taking border wall construction actions impacting the Nation--
while at the same time suggesting that it valued the ongoing
communication between the Nation and CBP. Those communications are
valuable, but meaningful consultation must be a two-way street. CBP
cannot simply ignore the Nation's concerns or proposed mitigation
measures, and turn around and bulldoze sacred sites, destroy cultural
resources, and deplete precious ground water--that is far from the
consultation that is required by the law.
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\11\ CBP did agree not to drill any new wells within 5 miles of
Quitobaquito, but the Nation remains concerned that the continued use
of water in connection with construction of the border wall will
deplete ground water resources in the area on which the Nation relies.
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Furthermore, because the reprogrammed funding originally
appropriated to the Department of the Defense (DOD) is being used to
fund the ongoing construction in the Tucson and Yuma Sectors,
additional consultation requirements are at issue. Section 8141 of the
FY 2019 DOD Appropriations Act prohibits the use of funding made
available under the Act in contravention of Executive Order 13175
(requiring tribal consultation) and the FY 2020 DOD Appropriations Act
contains a substantively identical provision in Section 8129. In
addition, DOD has its own tribal consultation policy pursuant to
Executive Order 13175 that requires DOD to engage in meaningful
consultation with tribes whenever an action has the potential to
significantly affect Indian lands, tribal rights, and protected tribal
resources (whether such resources are located on or off Indian lands),
and requires that such consultation be completed before implementation
of the proposed action impacting the affected tribe. DOD Instruction
4710.02 (Sept. 24, 2018).
In contravention of the FY 2019 and 2020 DOD Appropriations Acts
and its own consultation policy, to date DOD has not conducted any
government-to-government consultation with the Nation. On February 7,
2020, the Nation wrote a letter to Secretary of Defense Mark Esper
requesting that DOD immediately engage in government-to-government
consultation with the Nation consistent with the FY 2019 and FY 2020
DOD Appropriations Acts and the DOD tribal consultation policy and that
no DOD funds be expended on border barrier construction impacting the
Nation until consultation has occurred. We have not yet received a
response.
DHS (and DOD) must engage in a more thorough and substantive
consultation and review process that is respectful of our government-
to-government relationship, and that recognizes the Tohono O'odham
Nation's unique history and relationship to these lands and resources.
Meaningful consultation requires DHS and DOD to consider the
information provided by the Nation before proceeding to construct
border barriers that damage and destroy our sacred sites and cultural
resources, and before making any decision about what type of border
security measures are most appropriate in and around our ancestral
homelands. Although DHS has committed to ``formal, government-to-
government consultation with the Tohono O'odham Nation prior to taking
actions that may impact the Tribe and its members in Arizona'' as
required by the law and its tribal consultation policy, DHS currently
is giving little more than lip service to consultation. DHS and DOD
must engage in formal, government-to-government consultation before
proceeding further with border wall construction that irreparably harms
tribal cultural resources and sacred sites, and as a consequence, harms
the O'odham and harms all of us, by losing part of our cultural
heritage.
conclusion
Two things are clear to us about the law as it currently stands.
One is that Congress must withdraw or at least better limit DHS's
authority to unilaterally give itself waivers to circumvent every
Federal statute on the books--this authority is dangerously broad, and
has allowed DHS nearly unchallengeable, dictatorial authority to run
roughshod over the rights of the Tohono O'odham and every other border
community in the United States. The Federal Government has abused its
authority, trampling the rights of local communities and local
governments. This kind of non-challengeable authority may be tolerated
in a totalitarian state, but it does not sit well among the statutes
that are supposed to protect our freedoms in the United States of
America.
The second is that Chairman Grijalva's introduction in the last
Congress of legislation that would put into Federal law meaningful
consultation requirements through his proposed Requirements,
Expectations, and Standard Procedures for Executive Consultation with
Tribes Act (RESPECT Act), and this Subcommittee's hearing on similar
draft legislation last April, is right on target and desperately
needed. The fact is that while the Federal agencies pay lip service to
tribal consultation, there is precious little way for tribal
governments to enforce current consultation policies when the agencies
choose to ignore them. Enactment of a statutory consultation
requirement would help put an end to the Federal Government ignoring
our concerns, our expertise, and our right to self-determination. The
Federal Government owes our government, and the governments of the
local communities and states around us, more respect. We want to thank
Chairmen Grijalva and Gallego for their efforts to resolve this
continuing problem.
O'odham have lived in what is now Arizona and Mexico long before
the border was drawn through our lands. It should be no surprise that
we have deep religious, cultural and historic ties to these lands where
we have so long lived. The Federal Government's continued destruction
of sites and resources that have religious and cultural significance to
our people amounts to the bulldozing of our church grounds and our
civilian and military cemeteries. For us, this is no different than DHS
building a 30-foot wall through Arlington Cemetery, through the grounds
of the National Cathedral, or through George Washington's Mt. Vernon.
Preservation of the history and culture of the Tohono O'odham
people is not just important to the Tohono O'odham Nation--it is
important to the preservation of the history and culture of the United
States as a whole. As we preserve Lincoln's house in Springfield,
Illinois, as we preserve Civil War battlefields and cemeteries, and as
we honor holy places of worship everywhere in the United States, we
also must preserve and protect such places of significance to the
O'odham, the first Americans in this part of our great country.
The Nation appreciates the Committee's interest in understanding
more about the harms to our cultural resources and sacred sites that
already have occurred, and that will continue to occur as the result of
the construction of a border wall within our ancestral territory. We
welcome a continued dialogue with the Federal Government on these
issues, and we urge Congress to exert its authority to protect our
sacred sites.
______
Questions Submitted for the Record to the Honorable Ned Norris, Jr.,
the Tohono O'odham Nation
Questions Submitted by Representative Grijalva
Question 1. You mention the connections that the Nation continues
to have with its ancestral homelands in Mexico, despite the presence of
the border.
1a. Has the border ever prevented tribal members from returning to
these homelands or engaging in ceremonies?
Answer. Yes, tribal members have been detained and deported by
Border Patrol for attempting to travel through our traditional lands,
as part of cultural and religious traditions. Federal authorities also
have prevented tribal members from transporting raw materials and goods
essential to our spirituality, economy, and traditional culture, and
have confiscated cultural and religious items, such as feathers, pine
leaves or sweet grass.
Question 2. In your testimony you mention my bill, the RESPECT Act.
In your opinion, how would laws like the RESPECT Act prevent situations
like this from occurring again in the future?
Answer. Laws like the RESPECT Act would help to prevent the
destruction of sacred sites from occurring again in the future by
mandating meaningful, government-to-government consultation with tribal
nations and further clarifying what that consultation should look like.
The Act expresses the sense of Congress that effective and meaningful
consultation requires a ``two-way exchange of information'',
consideration ``of each other's opinions'', and ``seeking of agreement
on how to proceed concerning the issues at hand''; and that
consultation ``constitutes more than simply notifying an Indian Tribe
about a planned undertaking.'' The Act also would require that
consultation be completed before any Federal funds are expended for
activities that may have substantial direct impacts on tribal lands or
interests, including tribal cultural practices or areas of cultural or
religious importance. In addition to requiring consultation, the Act
would provide a judicial remedy in the event a Federal agency fails to
engage in meaningful consultation with tribal governments.
With respect to the ongoing border wall construction, the Federal
Government has not engaged in meaningful government-to-government
consultation with the Nation, nor does there appear to be an effective
remedy to address the Federal Government's complete disregard of the
Nation's sovereignty, cultural resources and sacred sites. The RESPECT
Act, or similar laws, would be an important first step in requiring the
Federal Government to live up to its trust responsibility and its legal
obligation to consult with the Nation (and other affected tribes),
consider the Nation's concerns and reach agreement on how to address
and mitigate those concerns before undertaking actions that destroy
tribal culture, archeological resources, and sacred sites, as well as
harming the environment and natural resources.
Questions Submitted by Representative Gallego
Question 1. Your testimony begins with a reflection upon the rich
history of the Tohono O'odham Nation and its pre-existence to the U.S.-
Mexico border.
1a. What difficulties were created when the international boundary
was drawn through your ancestral homelands in 1854?
Answer. When the international boundary was drawn through the
Nation's ancestral lands in 1854, there was no consideration of the
Nation's sovereign or historical rights or the interests of our people.
The boundary separated our lands and our people--separating us from
other tribal members who share the same language, history and religion.
Although the border initially was not strictly enforced, it created a
colonial obstacle to our traditional way of life, interfering with our
ability to collect traditional foods and materials important to our
culture, and to visit family members and participate in ceremonies and
pilgrimages that take place at sacred sites in Mexico. The division of
O'odham lands also resulted in an artificial division of O'odham
society, and the O'odham bands are now broken up into four federally
recognized tribes: the Tohono O'odham Nation, the Gila River Indian
Community, the Ak-Chin Indian Community and the Salt River (Pima
Maricopa) Indian community, which are politically and geographically
distinct.
1b. How does the border impact the daily lives of the Nation's
members?
Answer. The border impacts the daily lives of the Nation's members
in many significant ways. Vehicle barriers and a road runs along the
border for the entire 62 miles of the reservation border, which is
patrolled by the U.S. Border Patrol. O'odham members must produce
border identification cards to cross into the United States. On many
occasions, Border Patrol has detained and deported Tohono O'odham
members for attempting to travel through our traditional lands,
engaging in migratory traditions that are an important part of our
culture, religion and economy. The border is an artificial barrier to
our freedom to traverse our lands, and makes it more difficult to visit
family and friends who live in Mexico, and participate in pilgrimages
and ceremonies at important cultural and religious sites in Mexico.
The border also impairs our ability to collect traditional foods
and materials needed to sustain our culture. U.S. Customs has prevented
tribal members from transporting raw materials and goods essential to
our spirituality, economy, and traditional culture, and has confiscated
cultural and religious items, such as feathers, pine leaves or sweet
grass. The vehicle barriers prevent cattle from grazing or reaching
watering holes across the border, and increased Border Patrol traffic
often results in our livestock being hit and killed, as well as
increased damage to our roads, which BIA does not have the funding to
repair.
Finally, our members who live near the border are directly affected
by border-related criminal activity, including drug trafficking and
human smuggling. Particularly in remote areas, our Tohono O'odham
Police Department (TOPD) officers are the first and often the only
responders to border-related crime on the reservation. TOPD spends
about a third of its budget on border security, and the Nation spends
more than $3 million annually to help meet the United States' border
security responsibilities. There is limited Federal funding available
to assist with these responsibilities, and the Nation is responsible
for investigating immigrant deaths and funding autopsies at a cost of
$2,600 per autopsy, plus supplies and detective investigative hours,
with no assistance from DHS. The Nation also absorbs the cost of
reclaiming damages to its natural resources, including vehicles and
trash abandoned by smugglers, and the control of wildland fires
resulting from cross-border illegal activity.
Question 2. If possible, can you also speak to the success and
resiliency of the Nation's High Intensity Drug Trafficking (HIDTA) Task
Force and Shadow Wolves?
2a. Would you agree that the establishment of these unique and
successful programs speak to the importance of tribal self-governance?
Answer. The TOPD-led HIDTA Task Force is a multi-agency drug
smuggling task force--the only tribe-led HIDTA Task Force in the
country--and is staffed by TOPD detectives, ICE special agents, Border
Patrol agents, and the FBI. The Task Force has been extremely
successful in combatting drug smuggling on the Nation's lands, and is
responsible for seizing huge quantities of drugs, most recently
methamphetamine and counterfeit Oxycodone pills containing Fentanyl. In
2018, the Nation's Task Force Commander W. Rodney Irby received an
award as the HIDTA National Outstanding Task Force Commander.
The Shadow Wolves, which Congress established in 1972, is an ICE
tactical patrol unit based on our Reservation, which the Nation played
a role in creating. The Shadow Wolves is the only Native American
tracking unit in the country, and has members from Tohono O'odham as
well as other tribes. The Shadow Wolves are known for their ability to
track and apprehend immigrants and drug smugglers, using traditional
tracking methods. The unit has apprehended countless smugglers and
seized thousands of pounds of illegal drugs.
The creation and success of both the TOPD-led High Intensity Drug
Trafficking (HIDTA) Task Force and the Shadow Wolves illustrate the
importance of tribal self-governance, as well as the importance of
listening to the voices and experience of tribal citizens and including
them in border security efforts.
2b. Considering the Nation's extensive work with border patrol
initiatives, how effective do you believe this new border wall will be?
Answer. Based on our long-standing experience on the front lines of
border security, the new border wall is not an effective way to secure
the border. Building a wall (also called pedestrian fencing) is
impractical or impossible in many areas where there are natural
boundary features that already prevent or make border crossing
extremely unlikely. In areas where the border wall has been
constructed, migrants have cut through, climbed over and tunneled under
the wall. This is particularly likely in remote areas. The barrier is
not a barrier at all--it is merely an obstacle that can be overcome
with household tools found at retail stores or rope. Recently, in late
January, during construction of a portion of the wall, a gust of wind
blew the wall over into the Mexico side of the border. Border wall
construction near the Lukeville port of entry also has resulted in
dangerous flooding and the build-up of debris and environmental damage
during monsoon season. Federal funding (and taxpayer dollars) would be
much better spent on technology-based solutions and additional tribal
and Federal law enforcement personnel and equipment (such as Integrated
Fixed Towers, which we recently have permitted to be installed on the
reservation along the border).
Question 3. Please provide a record of communications and meetings
between the United States Customs and Border Protection (CBP) and the
National Park Service (NPS) with the Tohono O'odham Nation regarding
the border wall construction activities within Organ Pipe National
Monument, including the activities on Monument Hill and Quitobaquito
Springs.
Answer. Below is a list of the communications and meetings between
CBP/DHS, NPS and Tohono O'odham Nation leadership regarding border wall
construction within Organ Pipe National Monument. There were additional
communications between the Nation's staff and CBP and NPS personnel
which are not included below. We do not consider staff communications
or the communications listed below to be the kind of meaningful
government-to-government consultation with consideration of tribal
input that is required by IIRIRA Section 102(b)(1)(C), by the DHS
tribal consultation policy, by Executive Order No. 13175, and by the
Federal Government's trust obligation to respect tribal sovereignty and
engage with tribes on a government-to-government basis. That is clear
from the fact that despite these communications, CBP ignored the
Nation's concerns and proposed mitigation measures (as well as a July
2019 NPS survey noting that existing archeological sites will be
impacted or destroyed by the planned border wall construction in Organ
Pipe), bulldozing the area at Quitobaquito and blasting Monument Hill.
The Nation has requested formal consultation on multiple occasions,
including in its November 2019 letter to CBP (see below). Those
requests have been declined.
1. October 25, 2019--Conference Call Meeting with the Nation and
representatives from DHS, CBP, and Army COE regarding the
border wall. Federal representatives were not authorized to
respond to requests or answer most questions posed by the
Chairman.
2. November 13, 2019--Chairman Norris letter to CBP, Chief Patrol
Agent, Roy Villareal (cc's: DHS, CBP, NPS, FWS, USAF) as
follow up to October 25 meeting, making requests in writing
and requesting formal consultation.
3. November 25, 2019--E-mail containing short letter from Villareal
acknowledging relationship with the Nation, notifying us
that a response to the November 13 letter is being
prepared.
4. January 10, 2020--CBP letter in response to the November 13
letter from the Chairman, reiterating waiver of various
laws, effectively denying most of the requests made in
Chairman's letter except for an agreement not to drill any
new wells within 5 miles of Quitobaquito.
5. November 21, 2019--Letter from NPS to provide notice of bone
fragments that must be removed immediately due to the
likelihood of area being disturbed as soon as December 6,
2019 due to construction-related activity.
6. February 4, 2020--E-mail from CBP Agent Rafael Castillo,
notifying the Chairman that blasting within Roosevelt
Reservation at Monument Mountain would begin ``today.''
7. February 4, 2020--Chairman response to R. Castillo e-mail
informing him that this is the first time we have been
notified by Castillo that this would be taking place and we
did not have notice of the blasting that occurred or the
blading (bulldozing) that occurred at Quitobaquito earlier.
[No response received from Castillo]
8. February 7, 2020--Letter from the Chairman to Department of
Defense regarding tribal consultation required under DOD
Appropriations Act. [No response]
9. February 12, 2020--Chairman Norris meeting with Tim Quinn, Mary
Hyland, Bronia Ashford, CBP Intergovernmental Affairs re:
concerns about destruction of cultural resources at
Quitobaquito Springs and Monument Hill, and lack of
consultation (Washington, DC).
Meetings with CBP not specifically related to the border wall:
1. July 2, 2019--Meet and Greet with R. Castillo.
2. October 16, 2019--Tucson Sector Border Patrol meeting.
3. March 4, 2020--CBP meeting with Chief Villareal and R. Castillo.
Questions Submitted by Representative Soto
Question 1. Your testimony references Section 102(c) of the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the
waiver authority granted to DHS within it.
1a. How would the Nation's sacred sites be better protected if the
laws waived by DHS were still applicable? For example, would your
sacred sites be better protected if NEPA and NAGPRA still held
authority?
Answer. The Nation's sacred sites would be better protected if the
40-plus environmental laws that have been waived by DHS in the Tucson
Sector were still applicable because such laws provide processes that
Federal agencies must follow when Federal actions impact tribal
nations, their lands, and their cultural and natural resources, and
these processes protect these lands and resources from such impacts.
For example, NEPA requires the Federal Government to thoroughly
consider and assess the potential impacts of proposed Federal actions
on the human environment, as well as a reasonable range of alternatives
and practicable mitigation measures that would avoid or limit potential
harms to the environment, before deciding which action to take and what
mitigation measures will be implemented. NAGPRA protects burial and
archaeological sites on Federal and tribal lands and includes
requirements for the treatment, repatriation, and disposition of
remains, funerary and sacred objects, and objects of cultural
patrimony. NAGRPA is intended to ensure that Federal agencies provide
written documentation of cultural items and consult with tribes to
repatriate cultural items. NAGPRA protects Native American burial sites
(such as Quitobaquito Springs and Monument Hill) and prevents the
removal of cultural items without proper review and permitting.
The Nation's sacred sites would have received greater protection if
DHS would have been required to comply with NEPA and NAGPRA, because
these statutes would have required a thorough review of existing
archeological and cultural resources and sacred sites, including tribal
consultation and participation, an evaluation of impacts to those
resources, and consideration of practicable mitigation measures before
construction activities were undertaken, as well as a process for
consultation with the Nation and repatriation of any remains found
during construction activities. Other statutes like the National
Historic Preservation Act would have provided additional protections
for cultural and natural resources.
1b. Do you believe border communities are being treated as second-
class citizens, less protected by the laws of the United States than
American citizens living in other parts of the Country?
Answer. Yes. The DHS authority to waive any and all laws to
facilitate border barrier construction contained in IIRIRA Section
102(c) is far too broad, and allows DHS to ignore all potentially
applicable Federal environmental, cultural and religious protection
laws, as well as all Federal, state or other laws related to such laws.
The over-reach of the law is further exacerbated by its severe
limitation on the ability of those affected to challenge the waiver,
limiting claims to those alleging a violation of the Constitution,
which must be brought within a very short time period. As a result, DHS
has virtually unchallengeable, dictatorial authority to run roughshod
over the rights of the Tohono O'odham and every other border community
in the United States. For that reason, we do believe that border
communities are being treated as second-class citizens, and are less
protected by the laws of the United States than American citizens
living in other parts of the Country. No other segment of the United
States population has been forced to surrender these legal rights and
protections or live under these circumstances. For that reason, we
strongly urge Congress to strike or at least seriously limit the waiver
provision in the current law, and at a minimum, to require DHS to
engage in a more thorough, meaningful consultation process that
includes consideration of tribal input and mitigation.
Questions Submitted by Representative Garcia
Question 1. Since the destruction of the Nation's sacred sites have
been made public, have you received support from outside organizations
or other tribal nations?
Answer. The Nation has received expressions of support from
multiple tribal leaders, as well as the National Congress of American
Indians (NCAI). After the Subcommittee hearing on February 26, NCAI
issued a statement condemning the recent destruction of culturally
significant sacred sites in Arizona resulting from border wall
construction activities.
______
Mr. Gallego. Thank you, Chairman.
The Chair now recognizes the gentleman from Colorado, Mr.
Neguse, so that he may introduce our next witness.
Mr. Neguse. Thank you, Mr. Chairman, for the opportunity to
be able to introduce a constituent and a former professor of
mine, Professor Sarah Krakoff, who is a professor at the
University of Colorado School of Law, my alma mater. She is the
Schaden Chair for Experiential Learning.
Her expertise in American Indian law, natural resources and
public land law, as well as environmental justice is well-
known. She has been a prolific writer on any number of those
topics. She is a Yale and Berkeley graduate who clerked on the
Ninth Circuit Court of Appeals, previously led the University
of Colorado Law School's American Indian Law Clinic, and I can
certainly attest to her leadership and passion on these issues.
And as a former student of hers, just very grateful for her
to be here and offer her testimony. I am fairly certain I did
well in her class, but I will let her clarify the record if
that is not the case. So, thank you so much, Professor Krakoff,
for joining us.
STATEMENT OF SARAH KRAKOFF, MOSES LASKY PROFESSOR OF LAW,
UNIVERSITY OF COLORADO SCHOOL OF LAW, BOULDER, COLORADO
Ms. Krakoff. Thank you, Chairman Gallego, Ranking Member
Gosar, members of the Subcommittee, and also Representative
Neguse for that overly generous introduction. I hope you don't
get me back with a few key questions like I did, perhaps, to
you in law school.
I am really honored to be able to testify at this important
hearing. My name is Sarah Krakoff, and I am a law professor at
the University of Colorado. I hope my remarks will be of use to
the Committee.
As Chairman Norris described, construction crews are
blasting in Organ Pipe National Monument and have already
destroyed Indigenous burial grounds. Many additional sites are
at risk along the more than 1,900 miles of the U.S.-Mexico
border. I would like to make two points about this. First, the
Administration's approach to building the wall has
disproportionate impacts on American Indian tribes because of
their unique ties to Federal public lands.
Second, the damage is avoidable but is a predictable
consequence of the Administration's sweeping waivers of Federal
laws which deprive the Federal agencies, the tribes, and the
American public of the information necessary to decide whether
the benefits of the wall outweigh its human and environmental
costs. With regard to the first point, tribes' historic
territories extended well beyond their current reservation
boundaries. Tribes, therefore, have religious, cultural, and
historic sites throughout Federal public lands. Hundreds of
treaties, Federal laws, and executive orders recognize this by
affirming that tribes have rights that extend beyond their
current reservation boundaries.
Specific laws and policies would normally protect tribal
rights on Federal public lands, including the following: the
American Indian Religious Freedom Act which states that it is
the policy of the United States to protect American Indians'
inherent right of freedom to exercise their traditional
religions, including access to sacred sites; the National
Historic Preservation Act which protects traditional and
cultural properties on Federal public lands; the Archaeological
Resources Protection Act which requires permits for excavation
or destruction of archaeological resources on public lands; and
the Native American Graves Protection and Repatriation Act
which provides protections for Native American burial and
archaeological sites on public lands.
Two bedrock environmental statutes, the National
Environmental Policy Act and the Endangered Species Act, would
also normally protect tribes' and the public's interest in
public lands. This leads to the second point. Why, despite all
of these laws, are construction crews blasting in national
monuments and wildlife preserves?
The answer is that the Secretary of Homeland Security has
waived the application of dozens of laws, including all of
those mentioned above. The Secretary's power comes from Section
102 of the REAL ID Act of 2005 which authorized the waiver of
all laws that could impede the expeditious construction of
barriers and fences. Initially, despite the breadth of the
waiver power, the Secretary's authority was somewhat bounded by
the fact that in the Secure Fence Act of 2006, Congress only
authorized expenditures for roughly 700 miles of fences and
barriers.
The Secretary's waivers could only extend to the areas that
Congress had specifically authorized for construction. This is
not to understate the human, environmental, and cultural
impacts that resulted from those initial stretches of a border
fence. They were considerable, including flooding of Nogales
and other areas, deaths of rare and protected wildlife, and
destruction of wildlife migration quarters.
But impacts from the pre-existing border fence will pale in
comparison to the effects of the current Administration's
indiscriminate use of waivers. For context, the Bush
administration exercised the waiver four times for five
projects. The Obama administration did not exercise the waiver
at all. The Trump administration, acting without congressional
authorization for its border wall, has already exercised the
waiver provision 15 times. The waivers have covered between 29
and 37 statutes, including all of those listed above, as well
as the Antiquities Act, the Wilderness Act, and the Federal
Lands Policy and Management Act.
To summarize, the Administration is heedlessly destroying
irreplaceable resources in which Native nations have unique
interests by setting aside all of the legal protections that
were carefully designed to protect tribes and all other
Americans. None of this is necessary. Even if a border-long
barrier were an important goal, it could be completed without
suspending all of our environmental and other protective laws,
but it could not be completed on the Administration's political
timetable.
The Federal Government has long recognized that its broad
powers in Indian affairs are or should be accompanied by a
corresponding solemn obligation to honor the rights and
interests of the peoples who preceded us on the continent.
Instead of furthering this trust obligation, the Administration
is exercising its executive power in derogation of tribal
rights. Thank you for the opportunity to testify. I look
forward to any questions you may have.
[The prepared statement of Ms. Krakoff follows:]
Prepared Statement of Sarah Krakoff, Moses Lasky Professor, University
of Colorado Law School\1\
---------------------------------------------------------------------------
\1\ Affiliation for identification purposes only; the views herein
are my own and do not represent those of the University of Colorado.
---------------------------------------------------------------------------
I would like to thank Chairman Grijalva, Chairman Gallego, and the
members of the House Committee on Natural Resources and the
Subcommittee for Indigenous Peoples of the United States for inviting
me to testify at this important hearing on Destroying Sacred Sites and
Erasing Tribal Culture: The Trump Administration's Construction of the
Border Wall. I am a law professor at the University of Colorado and I
write and teach in the areas of public land law, American Indian law
and natural resources law. I hope my remarks will be of use to the
Committee.
As we speak, the Trump administration is pushing hard to construct
as many miles of a border wall with Mexico as it can in advance of the
presidential election in the fall. The costs of this headlong rush are
significant. Construction crews are heedlessly blasting in Organ Pipe
National Monument and have already destroyed burial grounds and
archaeological sites. Many additional sites--including Quitobaquito
Springs, a freshwater source that is on the Tohono O'odham Nation's
sacred Salt Trail--are at risk. The National Park Service has
documented at least 20 archeological sites in Organ Pipe National
Monument that are vulnerable to the blasting and construction, and the
Tohono O'odham Nation has confirmed that explosives would irrevocably
harm sites sacred to the Tohono O'odham and other tribes.
These and other harms were avoidable. The Tohono O'odham Nation and
other affected tribes have a myriad of legal rights to prevent just
this sort of careless destruction. Before listing the laws and policies
that apply specifically to the border wall context, I want to provide
some general background about the legal status and rights of Native
American nations, or American Indian tribes. There are 574 federally
recognized tribes in the United States \2\ that have direct government-
to-government relationships with the Federal Government. As unique
sovereigns under U.S. law, tribes have their own laws, their own legal
systems, and a variety of unique rights that stem from their treaties
and their historic status as governments that pre-dated the United
States.\3\ Any time we think about the rights of Native people and
Native nations, we have to think about this unique body of law. Tribes
have the right to govern their members and their territories. Hundreds
of treaties, Federal laws, and executive orders also recognize that
tribes have rights and interests that extend beyond their current
reservation boundaries. The United States was once all Indian Country,
and tribes therefore have sites of religious, historic, archeological,
cultural, and spiritual significance on Federal public lands that are
no longer within their current borders. This is true of the three
tribes that straddle the U.S.-Mexico border--the Tohono O'odham Nation,
the Kickapoo Traditional Tribe of Texas, and the Cocopah Indian Tribe--
as well as many other tribes whose aboriginal lands comprise the U.S.-
Mexico border territory.
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\2\ See Indian Entities Recognized by and eligible to Receive
Services from the United States Bureau of Indian Affairs, 85 Fed. Reg.
5462 (Jan. 30, 2020).
\3\ For a broad overview of tribal sovereign status and powers, see
Cohen's Handbook of Federal Indian Law, Chs. 3-4 (2012 ed.)
---------------------------------------------------------------------------
In terms of laws and policies that would normally protect tribes
from destruction of their religious, sacred, historic, and cultural
sites, I will describe just a few prominent ones. The American Indian
Religious Freedom Act, enacted in 1978, provides that ``it shall be the
policy of the United States to protect and preserve for American
Indians their inherent right of freedom to believe, express, and
exercise [their traditional religions.], including . . . but not
limited to access to sites, use and possession of sacred objects, and
the freedom to worship through ceremonial and traditional rights.'' \4\
In 1996, to further the purposes of the Act on public lands
specifically, President Clinton issued an executive order requiring all
Federal lands agencies to ``accommodate access to and ceremonial use of
Indian sacred sites'' and ``avoid adversely affecting the physical
integrity of such sacred sites.'' \5\
---------------------------------------------------------------------------
\4\ 42 U.S.C. Sec. 1996.
\5\ Executive Order No. 13007, 61 Fed. Reg. 26771 (May 24, 1996).
---------------------------------------------------------------------------
The National Historic Preservation Act \6\ provides protection to
tribes' traditional and cultural properties on Federal public lands and
requires tribal consultation and intergovernmental partnerships to
protect them. The Archaeological Resources Protect Act \7\ requires
permits for the excavation, removal, alteration, or destruction of
archeological resources on public and tribal lands and facilitates
intergovernmental coordination about archaeological resources. The
Native American Graves Protection and Repatriation Act \8\ provides
protections for Native American burial and archaeological sites on
Federal public and tribal lands, and includes rights regarding
treatment, repatriation, and disposition of remains, funerary and
sacred objects, and objects of cultural patrimony.
---------------------------------------------------------------------------
\6\ 16 U.S.C. Sec. 470 et seq.
\7\ 16 U.S.C. Sec. 470aa et seq.
\8\ 25 U.S.C. Sec. 3001 et seq.
---------------------------------------------------------------------------
In addition, general environmental laws would, in normal
circumstances, also require the Federal Government to consider and
assess impacts of its proposed actions on the environment under the
National Environmental Policy Act \9\ and modify its actions so as to
avoid harm to endangered and threatened species under the Endangered
Species Act.\10\
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\9\ National Environmental Policy Act, 16 U.S.C. Sec. Sec. 1531-
1544.
\10\ Endangered Species Act, 42 U.S.C. Sec. Sec. 4321-4370h.
---------------------------------------------------------------------------
So why, despite all of these laws and policies, are construction
crews barreling and blasting through protected public lands, including
wildlife refuges and national monuments, even as Tohono O'odham Nation
Chairman Ned Norris Jr. stands by pointing to where the sites, springs,
and sacred objects are? The answer is that the Secretary of Homeland
Security has waived the application of dozens of Federal laws,
including all of those mentioned above. The Secretary's power derives
from section 102 of the Real ID Act, passed in 2005, which authorized
the Secretary to waive all legal requirements that could impede the
``expeditious construction'' of barriers and limited the scope of
judicial review to claims alleging constitutional violations.\11\ The
Secretary's waiver power, though substantively very broad, was
nonetheless initially somewhat bounded by the fact that Congress only
authorized expenditures for construction of roughly 700 miles of border
fences and barriers in the Secure Fence Act of 2006.\12\ The
Secretary's waiver authority, in other words, could only extend to
areas that Congress had specifically authorized and funded for barrier
or fence construction. This is not to understate the unnecessary human,
environmental, and cultural impacts that resulted from those initial
stretches of a border fence. They were considerable, including flooding
of Nogales and other areas, deaths of rare and protected wildlife,
destruction of wildlife migration corridors, and severance of the
homelands of Indian nations, including the Tohono O'odham and the
Kickapoo.\13\
---------------------------------------------------------------------------
\11\ Emergency Supplemental Appropriations Act for Defense, the
Global War on Terror, and Tsunami Relief, 2005, Pub. L. No. 109-13, 119
Stat. 302, Sec. 102(c). The secretarial waiver was first enacted in
1996 as part of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. 104-208, Sec. 102(c) (September 30,
1996). The earlier version authorized the Attorney General to waive the
Endangered Species Act and the National Environmental Policy Act. The
Real ID Act substituted the Secretary of Homeland Security for the
Attorney General and authorized the vastly expanded broader waiver.
\12\ Pub. L. No. 109-367, 120 Stat. 2638.
\13\ See Environmental Impacts on the Border Wall, David Roche, et
al., 47 Envt'l. L. Rep. News & Analysis 10477 (2017).
---------------------------------------------------------------------------
Still, those impacts might pale in comparison to the effects of the
Trump administration's indiscriminate use of waivers to construct its
wall. For context, the Bush administration exercised the waiver on four
separate occasions to construct barriers and fences.\14\ The Obama
administration did not exercise the waiver at all. President Trump's
executive order--supporting a wall across all 1,954 miles of the
southern border--was signed on January 25, 2017, shortly after his
inauguration.\15\ Congress never authorized the wall's construction nor
the funding for it. Instead the Trump administration unilaterally
diverted defense spending to pay for the wall. Lawsuits challenging the
diversion of funds have so far failed and the Administration is
charging ahead without congressional approval or any apparent
limitations or restraints of any kind. Since January 2017 the Trump
administration has exercised the waiver provision 15 times. The waivers
have covered lands in California, New Mexico, Texas, and Arizona, and
typically apply to between 29 and 37 statutes, including all of those
listed above as well as the Antiquities Act, the Wilderness Act, and
the Federal Lands Policy & Management Act.\16\
---------------------------------------------------------------------------
\14\ See Kenneth D. Madsen, Department of Homeland Security Border
Barriers Legal Waivers, Available at: https://cpb-us-w2.wpmucdn.com/
u.osu.edu/dist/2/14781/files/2019/10/waivers-DHS-poster_v306.pdf.
\15\ Exec. Order No. 13767, 82 Fed. Reg. 8793 (Jan. 30, 2017).
\16\ See id.
---------------------------------------------------------------------------
In short, the Administration's fervor to get its wall in place has
two destructive aspects. First, the Administration is blasting through
all of the legal protections that were carefully designed to protect
the rights and interests of tribes as well as all other Americans. And
second, the Administration is heedlessly destroying irreplaceable
cultural, spiritual, archeological, and ecological resources in which
Native nations have unique interests, and that implicate all of us.
None of this is necessary; there is no emergency rush to complete the
wall across all 1,954 miles of the southern border. Even if a border-
long barrier were an important and consensus-based goal, it could be
completed without suspending all of our environmental and other
protective laws. It just cannot be completed--consistent with the
rights of American Indian tribes and many protective laws and
policies--on the Administration's political timetable. It is not too
late, however, to re-engage with the Tohono O'odham and other tribes
and conduct serious government-to-government consultations that would
avert further devastation to cultural, spiritual, and archeological
sites. The extensive legal framework that recognizes the rights of
Native nations is there; the Administration just has to choose not to
eviscerate it.
______
Questions Submitted for the Record to Sarah Krakoff, Professor of Law,
University of Colorado Law School, Boulder, Colorado
Questions Submitted by Representative Grijalva
Question 1. Your testimony states that this Administration's border
wall project could very well be completed without ``suspending all of
our environmental and other protective laws.''
1a. In your opinion, why might the Administration have chosen this
destructive route for the wall's construction?
Answer. My best educated guess is that the Administration feels
political pressure to complete at least portions of the wall before the
2020 election.
1b. Why waive these protective laws in the first place?
Answer. The reason to waive Federal laws that are designed to
protect our heritage, resources, and environment is that it is faster
to do so and it deprives opponents of the opportunity to obtain
information about the negative impacts of a wall that might further
slow or stall the process.
Questions Submitted by Representative Gallego
Question 1. You mention that this Administration is sidestepping
tribal legal protections in its construction of the border wall and
that this has implications for all Americans.
1a. Can you elaborate on that? What legal precedent is this
Administration setting?
Answer. The Administration is exercising sweeping waivers of
statutes that protect the rights of American Indian tribes specifically
as well as the interests of all Americans in that the Administration
has decided not to apply dozens of Federal laws to its process of
siting and constructing the border wall. These laws include, but are
not limited to: The National Environmental Policy Act, the Endangered
Species Act, the National Historic Preservation Act, the Native
American Graves Protection and Repatriation Act, among others.\1\ The
Administration's use of the waiver, which derives from section 102 of
the Real ID Act,\2\ sets a dangerous precedent because it is outside of
any congressional authorization to construct the wall and therefore has
no parameters. The Administration is acting on solely on its own
accord, without congressional support, buy-in, or limitations, and is
doing so in a manner that allows for little to no assessment or
accountability of its actions that effect the environment, the Native
Nations on the border, or even the cost-effectiveness of this massive
construction project.
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\1\ For a chart listing all waivers and all laws to which they have
applied, see Kenneth D. Madsen, Department of Homeland Security Border
Barriers Legal Waivers, Available at: https://cpb-us-w2.wpmucdn.com/
u.osu.edu/dist/2/14781/files/2019/10/waivers-DHS-poster_v306.pdf.
\2\ Emergency Supplemental Appropriations Act for Defense, the
Global War on Terror, and Tsunami Relief, 2005, Pub. L. No. 109-13, 119
Stat. 302, Sec. 102(c). The secretarial waiver was first enacted in
1996 as part of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. 104-208, Sec. 102(c) (September 30,
1996). The earlier version authorized the Attorney General to waive the
Endangered Species Act and the National Environmental Policy Act. The
Real ID Act substituted the Secretary of Homeland Security for the
Attorney General and authorized the vastly expanded broader waiver.
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Questions Submitted by Representative Haaland
Question 1. Your testimony references legislation that is currently
in place to protect the cultural rights of Tribal Nations, such as the
National Historic Preservation Act (NHPA) and the Native American
Graves Protection and Repatriation Act (NAGPRA).
1a. Based on these laws, would you say that tribal consultation is
an accepted precedent in this country?
Answer. Yes, the Federal Government's obligation to consult with
tribes is recognized in many statutes as well as several executive
orders. (Executive Order 13,175, to list just one example, requires
consultation with tribes on any Federal policy that has tribal
implications.) Tribal consultation is a well-established precedent
based on many specific sources of law as well as the United States'
trust obligation to American Indian tribes, which extends back to the
formation of the republic.
1b. How does the Administration's use of the REAL ID Act of 2005's
waiver authority compare to this precedent?
Answer. The Administration's sweeping and unprecedented use of the
Real ID Act's waiver is novel and lacks public vetting as well as
congressional support. It is an expedient exercise of executive power
as compared to a long-standing Federal obligation.
Questions Submitted by Representative Garcia
Question 1. Based on your experience in the legal and academic
fields, what solutions are needed to prevent situations like this from
occurring again?
Answer. The solution is fairly simple: do not waive dozens of
Federal laws when engaging in massive and expensive construction
projects on Federal public lands. Follow existing laws requiring:
meaningful tribal consultation; environmental impact assessment;
archeological, historic, and cultural site review; and protection of
endangered and threatened species.
______
Mr. Gallego. Thank you. The Chair now recognizes Ms.
Shannon Keller O'Loughlin, the Executive Director of the
Association on American Indian Affairs.
STATEMENT OF SHANNON KELLER O'LOUGHLIN, EXECUTIVE DIRECTOR,
ASSOCIATION ON AMERICAN INDIAN AFFAIRS, ROCKVILLE, MARYLAND
Ms. O'Loughlin. Good afternoon, Chairman Gallego, and the
distinguished members of the Subcommittee. Thank you for
allowing the Association on American Indian Affairs to testify
today. I am Shannon Keller O'Loughlin, the Executive Director
and the Attorney for the Association, and I am a citizen of the
Choctaw Nation of Oklahoma.
Since its founding in 1922, the Association on American
Indian Affairs has been protecting sacred sites all over Indian
Country. Sacred sites and ceremonial grounds are found
everywhere in this Nation that we share together. Some are
within the exterior boundaries of tribal reservations, but most
are located on Federal, state, and privately-owned lands.
Sacred sites include areas commemorating important tribal
events and tribal people, much like the Jefferson Memorial, or
burial areas like the Arlington Cemetery or a church cemetery,
and other sites where the presence of our creators live and
speak to us, just like your brick-and-mortar churches. In the
first 150 years of U.S. governance, political leaders
understood that in order to assimilate and civilize Indian
tribes that you must separate us from our sacred places, from
our beliefs, and outlaw our languages and our cultural and
religious practices. And you did that. You criminalized our
religious and traditional practices and even held back rations
if we were caught practicing our dances.
The United States also allowed its officials and others to
take over our homelands, to desecrate burial and ceremonial
places, steal our ancestors' remains and their burial
belongings and take important cultural patrimony and sacred
objects. Despite more than a century of this religious
persecution, we continue our ceremonial lives at sacred sites
all over this shared country. And the ability to do so stems
from the perseverance of tribes and their citizens and the
Federal Government's ongoing recognition of its legal and moral
responsibilities to protect sacred sites and American Indian
religious freedoms.
Congress investigated the United States' attack on Indian
religious freedom back in 1978 and declared then a policy to
protect and preserve our inherent rights of freedom of belief
and exercise of religion, including the protection and access
to our sacred sites. Since then, the Federal Government has
taken a multitude of actions demonstrating that its Federal
trust responsibility includes the consideration and protection
of sacred sites in Federal decision making. You have passed
numerous bipartisan laws. Presidents have issued Executive
Orders. Federal agencies have developed MOUs, reports, action
plans. And the courts have recognized that the Federal trust
responsibility includes consultation with Indian tribes when
Federal actions threaten sacred sites.
The Federal Government has unquestionably assumed the legal
and moral responsibility to protect our sacred sites. Any
departure from this policy flies in the face of established
political and societal norms and violates our civil and human
rights, not to mention our own tribal laws, customs, and
traditions.
Today, we stand together with the Tohono O'odham Nation and
many other tribal nations who aren't here today who are
fighting against this current Administration's failure to
include our sovereign governments in any action that has the
potential to affect our environmental, cultural, and religious
rights and freedoms. Since Day 1 of this Administration, it has
chosen to act unilaterally on Indian affairs and remove even
the bare minimum procedures of our government-to-government
relationship.
We have not only had the ground fall out from beneath us at
Standing Rock, at Bears Ears with BLM land management decisions
in Alaska and elsewhere and at the Tohono O'odham sacred areas
at Monument Hill and Organ Pipe, but now the processes under
the National Environmental Policy Act are also being threatened
by new proposed regulations from the CEQ, further eroding
tribal consultation, eliminating cumulative and indirect
impacts from environmental review and taking away our ability
to provide less destructive options for development.
I am sure this Subcommittee fully understands the
devastating statistics in Indian Country, our children's
suicide rates, our heart disease rates, the numbers of our
women, children, and men raped, murdered and trafficked. Then
you must understand how important, how absolutely necessary our
cultural and religious practices are to our healing.
We cannot recover from centuries of trauma and
dispossession unless we can protect and maintain the places
where we go to become whole again. The Association fully
supports Congress in its effort to investigate and cure Indian
sacred site destruction and religious freedom violations at the
border wall and elsewhere. And I thank you for your time and
attention.
[The prepared statement of Ms. O'Loughlin follows:]
Prepared Statement of Shannon Keller O'Loughlin, Executive Director &
Attorney for the Association on American Indian Affairs
On behalf of the Association on American Indian Affairs
(``Association''), please accept this written testimony for the House
Natural Resources Committee's Subcommittee on Indigenous Peoples of the
United States' February 26, 2020 hearing: ``Destroying Sacred Sites and
Erasing Tribal Culture: The Trump Administration's Construction of the
Border Wall.''
The Association is the oldest non-profit serving Indian Country
protecting sovereignty, preserving culture, educating youth and
building Tribal capacity.\1\ The Association was formed in 1922 to
change the destructive path of Federal policy from assimilation,
termination and allotment, to sovereignty, self-determination and self-
sufficiency. Throughout its 98-year history, the Association has
provided national advocacy on watershed issues that support sovereignty
and culture, while working at a grassroots level with tribes to support
the implementation of programs that affect real lives on the ground.
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\1\ The Association was created by an amalgamation of several non-
profit Indian organizations that emerged in the early 1920s. The
Eastern Association on Indian Affairs and the New Mexican Association
on American Indian Affairs were the first of the predecessor groups to
formally organize in 1922. The EAIA and NMAAI were made up of affluent
non-Natives, most of whom owned land in Santa Fe and wanted to protect
Pueblo culture. The American Indian Defense Association, headed by John
Collier, formed to fight against the Bursum Bill and the Leavitt Bill,
both bills seeking to end Pueblo ties to their lands, and outlaw
cultural practices. These groups merged in the 1930s and eventually
consolidated under the name the Association on American Indian Affairs.
Today, the Association has an all-Native Board of Directors and
Executive Director.
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The Association's vision: to create a world where diverse Native
American cultures and values are lived, protected and respected, has
demanded that the Association dedicate significant resources to
protecting Native American cultural and religious practices connected
to important land areas across the United States. These special land
areas are often called ``sacred sites,'' but are used by tribes and
their citizens in a variety of ways--and always as places that must be
protected and secured in consultation with tribal governments.
Since its founding, the Association has provided legal and other
advocacy assistance to protect sacred sites. In the 1920s, it fought to
end the takings of Pueblo lands in New Mexico, worked to advocate
against the building of dams on tribal lands, and fought against laws
that outlawed the practice of tribal cultures and use of lands for
those purposes. For 20 years, the Association has provided legal
assistance to tribes seeking to protect Medicine Wheel in Wyoming. As
the result of these efforts, Medicine Wheel is a National Historic
Landmark and an Historic Preservation Plan was developed to ensure its
continued protection. The Association has also helped tribes fight the
development of lands that would adversely impact sacred sites, such as
the San Francisco Peaks, Bear Lodge, Bear Butte, Medicine Lake, Pyramid
Lake, Taos Blue Lake and many others. We stand alongside with the Water
Protectors at Standing Rock and elsewhere, as well as with efforts to
protect all of Bears Ears National Monument, and with the Tohono
O'odham Nation today in their advocacy to protect burial and sacred
areas that have been or are threatened to be destroyed due to
unilateral acts taken to build the border wall.
Tribal sacred sites have never had the same protections as non-
Indian cemeteries, war memorials, churches and other western
institutions--though tribal cultural and sacred sites serve the same
purposes as those western institutions. Even with current laws, as
explained below, tribal sacred sites are often seen as an impediment to
developers and government agencies because there is no holistic
national policy that acknowledges the significance of maintaining these
special places. The use by the current administration of the Real ID
Act of 2005 to build the border wall to protect against terrorism
eliminates any and all protection, right of tribal consultation and
public involvement and leaves no right of action to challenge agency
determinations.
Below, we have described: the importance of sacred sites to diverse
Native American religious practices and the Federal Government's role
in the sacred site protection; how the Trump administration's ongoing
construction of the border wall represents an imminent threat to sacred
sites; and the existing Federal laws that may be used to protect them.
the intersection of indian religion, land, and the federal government
Place-based religious practice is common of all religions and for
religious followers across the world. For many, pilgrimage to sites
like the Wailing Wall, Mecca, or Mt. Sinai is a religious mandate.
These experiences also provide stability, connection, and reassurance
in a chaotic and uncontrollable world. These sites provide healing,
community, empowerment and unity. Yet, the importance of sacred sites
among Native American cultural and religious practices has not been
treated as legitimate and worth protecting compared to other world
cultural and religious practices. The primary reason for this is that
the tenets and practice of Native American cultures and religions are
inextricably tied to the land and tribes have been removed from their
places of worship.
Although typically hidden from plain view, sacred sites and
ceremonial grounds abound across the United States. Some are within the
exterior boundaries of tribal reservations, but most are located on
Federal, state, and privately owned lands. ``Earth is a living,
conscious being that must be treated with respect and care'' \2\--a
failure to recognize this results in sickness, destruction, and death
for all mankind. Accordingly, ceremonies must be performed at certain
locations, unmolested and free from the observance of outsiders. The
medicine gathered to bless and protect those participating in
ceremonies must be taken from the earth in a specific manner, from
predetermined places, and must be completely free from pollutants or
genetic alteration. These beliefs and practices are not relics of the
past and have continued, even when the Federal Government has outlawed
such practices and has not yet established strong legislation to
protect tribes in their cultural and religious freedoms.
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\2\ Rebecca Tsosie, Tribal Environmental Policy in an Era of Self-
Determination: The Role of Ethics, Economics, and Traditional
Ecological Knowledge, 21 Vermont L. Rev. 225, 274 (1996).
---------------------------------------------------------------------------
Early United States political leaders and Federal officials
understood the important role that sacred sites played in Indian life:
they incorporated Indian separation from sacred sites, and therefore
the destruction of traditional Indian religious practice, into Federal
Indian policy. The United States' official policy to Christianize
Indians synchronized with the passage of laws that removed Indians from
their homelands and confined them to reservations. During that time,
Federal officials also promulgated regulations like the Indian
Religious Crimes Code and the Rules for Indian Courts, which
criminalized traditional dances, feasts, medicine men, and barred many
Indians from leaving reservations without superintendence.\3\ At best,
the punishment for visiting a sacred site or practicing one's
traditional religion was imprisonment. At worst, it was slaughter.
Moreover, the United States allowed its officials and others to enter
tribal lands to desecrate burial and ceremonial places, steal Ancestral
remains and their burial belongings, and take important cultural
patrimony and sacred objects.
---------------------------------------------------------------------------
\3\ Lee Irwin, Freedom. Law, and Prophecy: A Brief History of
Native American Religious Resistance, 21 Am. Indian Quarterly, 35
(1997).
---------------------------------------------------------------------------
Despite more than a century of religious persecution, Indian
communities have continued ceremonial life at sacred sites today, and
the ability to do so stems from the perseverance of tribes and their
citizens, and the Federal Government's recognition of its moral and
legal responsibility to protect sacred sites and American Indian
religious freedoms. Beginning in 1978, Congress took notice of the
United States' continued attack on Indian religious freedom and
conducted an ``extensive investigation'' that detailed how ``Indian
religious practices were often unnecessarily disrupted by state and
Federal laws and activities.'' \4\ This led to the American Indian
Religious Freedom Act (AIRFA), a joint resolution that declared a
policy ``to protect and preserve for Native Americans their inherent
right of freedom of belief, and exercise of traditional religions . . .
including but not limited to sacred sites . . . .'' \5\
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\4\ Stephen L. Pevar, The Rights of Indians and Tribes 225 (2012).
\5\ 42 U.S.C.S. 1996 (1978).
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Since AIRFA, the Federal Government has taken a multitude of
actions demonstrating that its Federal trust responsibility includes
the consideration and protection of sacred sites in Federal decision
making. Congress has passed numerous, bipartisan laws requiring Federal
agencies to consult with Indian tribes before they undertake any action
that may threaten a sacred site or other Indian interests.\6\
Presidents have issued executive orders prohibiting Federal actions
that destroy sacred sites and mandating that Indians be given access to
sacred sites.\7\ Likewise, Federal agencies have worked together to
develop a memorandum of understanding, reports, and action plans
regarding the protection of sacred sites.\8\ The Ninth Circuit has also
recognized that the Federal trust responsibility includes consultation
with Indian tribes when Federal actions threaten sacred sites.\9\ Thus,
the Federal Government has unquestionably assumed the moral and legal
responsibility to protect sacred sites and any departure from this
policy flies in the face of established political norms, and civil and
human rights.
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\6\ See infra Section III.
\7\ Exec. Order 13007: Indian Sacred Sites, 61 Fed. Reg. 26771
(1996); Exec. Order 13175: Consultation and Coordination with Tribal
Governments, 65 Fed. Reg. 67249 (2001).
\8\ Dep't of Defense et al., Memorandum of Understanding Regarding
Interagency Coordination and Collaboration for the Protection of Indian
Sacred Sites (2012); Dep't of Defense et al., Action Plan to Implement
the MOU Regarding Interagency Coordination and Collaboration for the
Protection of Indian Sacred Sites (2013); Dep't of Defense et al.,
Progress Report on the Implementation of the Memorandum of
Understanding Regarding Interagency Coordination and Collaboration for
the Protection of Indian Sacred Sites (2014); Dep't of Defense et al.,
Policy Statement on the Confidentiality of Information about Indian
Sacred Sites (2015); Dep't of Defense et al., Memorandum of
Understanding Regarding Interagency Coordination and Collaboration for
the Protection of Indian Sacred Sites: Policy Review Report (2013).
\9\ Pit River Tribe v. Bureau of Land Management, 469 F.3d 768, 788
(9th Cir.2006), on remand, 2008 WL 5381779 (E.D. Cal. 2008).
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the destruction of sacred sites
Regrettably, although President Trump has explicitly stated that he
``remains committed'' to ``protecting prayer in public schools'' \10\
and to providing Federal funding to religious groups, his
administration has given virtually no weight to concerns that Indian
communities have with regard to their sacred sites. For example, the
Administration has taken action to reduce the size of the Bears Ears
National Monument over tribal objections, as well as push through the
Dakota Access Pipeline and other pipelines across the country.
Similarly, there has been a disregard of tribal concerns with regard to
immigration and border security policies. Border patrol officials have
``forcibly ripped apart'' a sacred deer mask when an Indian tribal
member crossed the southern border to participate in a traditional
religious ceremony, desecrating it and rendering it completely unusable
for future ceremonies.\11\ Federal officials have also harassed tribal
citizens who have treaty and statutory rights to freely cross the
southern border to participate in religious ceremonies.\12\ And, in
January 2020, sacred sites were destroyed as part of border wall
construction, including the blasting of Monument Hill--sacred land for
the Tohono O'odham Nation located in the Organ Pipe Cactus
Monument.\13\ These actions are unlawful and morally wrong, violating
the Federal trust responsibility to Indian tribes, and Federal policies
reflecting that obligation that have been incorporated into numerous
Federal statutes (see discussion immediately below).
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\10\ Whitehouse.gov, President Donald J. Trump is Safeguarding the
Right to Religious Freedom for Students and Organizations (Jan. 16,
2020), https://www.whitehouse.gov/briefings-statements/president-
donald-j-trump-safeguarding-right-religious-freedom-students-
organizations/.
\11\ Tribal Border Alliance, Tribal Border Alliance Proposal (last
visited Feb. 22, 2020), https://www.tribalborderalliance.org/wp-
content/uploads/2019/03/Tribal-Border-Alliance-Proposal-on-Letterhead-
compressed.pdf.
\12\ Id.
\13\ Paulina Firozi, Sacred Native American burial sites are being
blown up for Trump's border wall, lawmaker says, Wash. Post (Feb. 9,
2020), https://www.washingtonpost.com/immigration/2020/02/09/border-
wall-native-american-burial-sites.
---------------------------------------------------------------------------
In contrast, after Secretary Bernhardt toured Chaco Canyon in New
Mexico, where he hiked with tribal leaders, he put in place a temporary
development ban pending further discussions. If more officials visited
more of these sites, and consulted more closely with tribal officials,
we believe and hope that they would seek to protect them, rather than
consider them inconvenient or insignificant impediments to other goals.
existing federal laws and policies provide for the protection of indian
sacred sites and should not be disregarded
Reflecting respect for tribal values and tribal culture, over the
years the Congress and the executive branch have enacted and
implemented a range of Federal statutes requiring the Federal
Government to engage in consultation with Indian tribes when
undertaking actions that may harm sacred sites and to either desist or
mitigate those actions. Those laws, described below, should not now be
abandoned; rather, they should be expanded upon.
National Historic Preservation Act
The National Historic Preservation Act (NHPA) was signed into law
in 1966. The purpose of the Act is to ``foster conditions under which
our modern society and our historic property can exist in productive
harmony and fulfill the social, economic, and other requirements of
present and future generations.'' \14\ Accordingly, the Federal
Government must ``contribute to the preservation of both federally
owned and nonfederally owned historic property'' \15\ and must consider
historic properties in agency decision making. Demonstrating Congress's
commitment to the protection of sacred objects and sacred sites, NHPA's
1992 amendments provide that sites with religious and cultural
significance to Indian tribes could be eligible for listing on the
National Register of Historic Places. Further, under Section 106 of the
Act, Federal agencies must consult with Indian tribes when taking into
account the effects that a Federal action may have on an historic
property that is listed or eligible for listing on the National
Register.\16\
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\14\ 54 U.S.C. Sec. 300101(1).
\15\ 54 U.S.C. Sec. 300101(4).
\16\ 54 U.S.C. Sec. 300308.
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National Environmental Policy Act
In 1970, Congress enacted the National Environmental Policy Act
(NEPA) to ``encourage productive and enjoyable harmony between man and
his environment [and to] promote efforts which will prevent or
eliminate damage to the environment.'' \17\ NEPA, and its current
regulations, ensure that Federal agencies incorporate the appropriate
level of environmental review when considering proposed actions. NEPA
is often the only statute that allows tribes to meaningfully
participate in the Federal decision-making process because it acts as a
mechanism for sacred site protection and helps tribes enforce their
off-reservation treaty rights like hunting, fishing, and gathering--all
activities essential to traditional Indian religious practice.
---------------------------------------------------------------------------
\17\ 42 U.S.C. Sec. 4321.
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Archaeological Resources Protection Act
Enacted in 1979, the Archaeological Resources Protection Act (ARPA)
protects archaeological resources on Federal and Indian lands.\18\
Indian lands are lands held in trust for tribes by the Federal
Government or lands that are subject to restrictions against
alienation.\19\ Archaeological resources include material remains of
past human life or activities that are of archaeological interest and
are at least 100 years old.\20\ To comply with ARPA, parties must
receive a Federal permit prior to excavation, and Federal agencies must
provide notice to tribes prior to the issuance of a permit that may
adversely affect a sacred site.
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\18\ 16 U.S.C. Sec. Sec. 470aa-470mm.
\19\ Id. at Sec. 470(bb)(4).
\20\ Id. Sec. 470bb(1).
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Native American Graves Protection and Repatriation Act
The Native American Graves Protection and Repatriation Act (NAGPRA)
was enacted on November 16, 1990 (and will be 30 years old this year)
and protects cultural items like Indian Ancestral remains and their
burial belongings, sacred objects, and items of cultural patrimony.\21\
The purpose of the law is twofold. First, it is meant to ensure that
agencies and institutions receiving Federal funds inventory and provide
written accounts of cultural items. In addition, Federal agencies and
institutions must consult with tribes to repatriate cultural items.
Second, the law is meant to provide significant protection for Native
American burial sites. The Act prohibits the removal of cultural items
from Tribal or Federal land without proper permitting.\22\
Additionally, it prohibits selling, purchasing, and transportation for
sale of cultural items obtained in violation of NAGPRA.\23\
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\21\ 25 U.S.C. Sec. Sec. 3001-3013, 18 U.S.C. Sec. 1170.
\22\ 25 U.S.C. Sec. 3002(c); see also id. Sec. 3002(a).
\23\ 18 U.S.C. Sec. 1170.
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Religious Freedom Restoration Act
In 1993, Congress passed the Religious Freedom Restoration Act
(RFRA), which provides that the Federal Government cannot substantially
burden religious exercise without a compelling interest.\24\ It is
distinguishable from the aforementioned statutes because it grants a
private right of action against the Federal Government for religious
freedom violations and places the burden of proof on the government to
demonstrate that it has a compelling interest in doing so. While RFRA
does not explicitly mention Indians or sacred sites, the protection of
Indian religious practice is at its core. Congress enacted RFRA in
response to the 1990 Supreme Court case, Employment Division v. Smith,
where two Native American Church practitioners filed a First Amendment
free exercise claim against Oregon's unemployment office after they
were denied unemployment benefits based on their sacramental use of
peyote.\25\ The Court held that neutral laws of general applicability
that do not expressly target religious practice were constitutional.
The decision shocked lower courts and legal scholars, and provoked
significant protest from religious rights groups and civil liberties
organizations.
---------------------------------------------------------------------------
\24\ 42 U.S.C. Sec. 2000bb-1.
\25\ Employment Div. v. Smith, 494 U.S. 872 (1990).
---------------------------------------------------------------------------
EO 13007: Indian Sacred Sites
Issued in 1996, Executive Order 13007: Indian Sacred Sites mandates
that Federal land management agencies must ``accommodate access to and
ceremonial use of Indian sacred sites by Indian religious
practitioners'' and must avoid adversely affecting the physical
integrity of such sacred sites.'' \26\ Under the order, sacred sites
are identified by tribes and Federal agencies must actively provide
notice to tribes of any actions that may adversely affect a sacred site
and consult with them to resolve the issue. It also established a
system for holding Federal agencies accountable for their actions.\27\
It requires the head of each executive branch agency that has the
responsibility for managing lands to report to the President.\28\ These
reports must address changes necessary to accommodate access to and
ceremonial use of Indian sacred sites, those changes necessary to avoid
adversely affecting the physical integrity of Indian sacred sites, and
procedures implemented or proposed to facilitate consultation with
Indian tribes.
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\26\ Exec. Order 13007: Indian Sacred Sites, 61 Fed. Reg. 26771
Sec. 1(a) (1996); Exec. Order 13175: Consultation and Coordination with
Tribal Governments, 65 Fed. Reg. 67249 (2001).
\27\ Id. at Sec. 2(a).
\28\ Id. at Sec. 2(b).
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EO 13175: Consultation and Coordination with Tribal Governments
Issued in 2000, Executive Order 13175, Consultation and
Coordination with Tribal Governments, articulated the administration's
establishment of ``regular and meaningful consultation and
collaboration with tribal officials in the development of Federal
policies that have tribal implications . . . .'' \29\ Policies with
tribal implications are defined as ``regulations, legislative comments
or proposed legislation, or other policy statements or actions that
have substantial direct effects on one or more Indian tribes . . . .''
\30\ Under the order, Federal agencies must respect tribal sovereignty
and grant tribes ``the maximum administrative discretion possible.''
\31\
---------------------------------------------------------------------------
\29\ Exec. Order 13175: Consultation and Coordination with Tribal
Governments, 65 Fed. Reg. 67249 (2001).
\30\ Id. at Sec. 1(a).
\31\ Id. at Sec. 3(a), (b).
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conclusion
Felix S. Cohen, known as the father of Federal Indian law, served
the Association as its General Counsel in the 1940-50s. He is well
known for the following quote from 1953:
``It is a pity that so many Americans today think of the Indian
as a romantic or comic figure in American history without
contemporary significance. In fact, the Indian plays much the
same role in our society that the Jews played in Germany. Like
the miner's canary, the Indian marks the shift from fresh air
to poison gas in our political atmosphere; and our treatment of
Indians, even more than our treatment of other minorities,
reflects the rise and fall in our democratic faith.''
The Association fully supports Congress in its effort to correct
the direction of our democratic faith and investigate Indian sacred
site destruction and religious freedom violations with respect to the
construction of the border wall. Our expertise in successfully
advocating for sacred site protection has taught us that this is an
ongoing issue with the current Administration and that Federal agencies
and officers must fully realize their moral and legal responsibility to
protect sacred sites and consult with sovereign tribal governments.
Thank you for the opportunity to submit this testimony.
______
Questions Submitted for the Record to Ms. Shannon Keller O'Loughlin,
Executive Director, Association on American Indian Affairs
Thank you for your invitation to testify and provide further
comment on the important and serious topic of the protection of Native
American sacred places, religious practices and cultural heritage.
Tribal Nations and their citizens cannot recover from centuries of
trauma and dispossession caused by assimilative Federal policy, unless
we can protect and maintain the places where we can go to become whole
again.
In addition, with these responses, we respectfully request that the
Subcommittee do their best to stop the Council on Environmental Quality
from proceeding with their proposed update to the regulations
implementing the National Environmental Policy Act, Docket CEQ-2019-
0003-0001 that will extinguish many Tribal Nation rights of
consultation to protect cultural heritage sites. I have attached the
Association's comments to public comment on the rulemaking.
Below are the responses from the Association on American Indian
Affairs to questions from Representatives Grijalva, Haaland and Garcia.
Questions Submitted by Representative Grijalva
Question 1. Based on your organization's experience, can you speak
to any examples where tribal consultation was utilized successfully?
Answer. The Association on American Indian Affairs does not often
hear about the successes in consultation--we hear from tribes that need
assistance or who have not been properly consulted. But there are
successes, and they are more often than not reliant on the quality of
the relationship between the Tribe and the Federal agency staff
involved in the project.
Often, successful consultation with tribes is dependent on the
Federal agency staff involved in the consultation because there are no
consistent tribal consultation policies throughout the Federal system.
Where Federal agency staff understand how to work respectfully with
tribes and the importance of protecting Native American cultural
heritage, then there can be successful consultation. Unfortunately,
tribal consultation is dependent on an agency's consultation policy
developed out of Executive Order 13175--and Federal agencies differ on
the robustness of their consultation policies, and they are horribly
inconsistent between agencies when compared.
Congress can support the success of tribal consultation with a
progressive piece of legislation that sets forward a process that all
executive agencies must follow consistently for tribal consultation
when a Federal action has the potential to affect a Tribal Nation.
Consultation must be redefined to be substantive and implement the U.N.
Declaration on the Rights of Indigenous Peoples. In addition, Congress
could put ``teeth'' in current legislation--such as the National
Environmental Policy Act, the National Historic Preservation Act, and
the Native American Graves Protection and Repatriation Act--that
establishes a priority and supremacy for the protection of tribal
cultural heritage, religious practices and environmental protection
over destructive development that harms those interests.
Question 2. Would you say that tribal consultation can be of
benefit to agencies that are striving to create programs and projects
that positively affect all Americans?
Answer. Absolutely. Tribal Nations are the first protectors of the
environment and often base decision making on long-term benefits,
versus short-term benefits. By consulting tribes, Federal agencies will
avail themselves of unique benefits stemming from Native American
belief, experience, and expertise. For example, many Tribal Nations
value their obligations to the next seven generations, a belief that
supports sustainability not only for Tribes and Nations, but for
everyone. In partnership with tribes, the Federal Government can better
serve all Americans and develop long-term sustainability into projects.
Land development in the United States seeks quick short-term
economic rewards only, which often causes substantial harm to future
sustainability, environmental health and cultural resource protection.
Tribal consultation that is substantive and not merely a box to check,
can support sustainable planning. The United States must amend its
current policies for land development and create legislation that
mandates sustainability and environmental protection--not just when it
is convenient but consistently and all-of-the-time. Land and resource
development must be sustainable and prioritize long-term environmental
protection over short-term economic reward. No waivers.
Questions Submitted by Representative Haaland
Question 1. Your testimony mentions Secretary Bernhardt's recent
visit to Chaco Canyon and the temporary development ban that resulted
from his discussions with tribal officials. Based on your experience,
what solutions are needed to better protect tribal sacred sites?
Answer. When Federal officials engage with tribes on the ground and
experience firsthand the importance of sacred sites to the Tribal
Nations that revere them, all parties benefit. Direct, in-person
involvement by U.S. government decision makers exposes them to
information that then can be used to adopt policies that better serve
the public, and provides sustainability prioritizing long-term
environmental protection over short-term economic reward. The case of
Secretary Bernhardt's visit to Chaco Canyon is a clear example of the
value to U.S. officials of connecting in person with Native Americans
about Native American sacred sites and culture--all Federal officials
that make decisions affecting Tribal Nations should be mandated to
visit the communities their decisions affect.
Of course, in-person visits are one tool to safeguard tribal sacred
sites today and for successive generations. Additional tools must
include:
A clear and consistent U.S. policy statement that
prioritizes long-term planning and protection over short-
term economic rewards, and prioritizes American Indian
religious freedom, and the Federal Government's
responsibility to protect sacred sites, water, and the
environment;
The adoption of new Federal legislation that clearly and
consistently requires substantive tribal consultation,
which implements the U.N. Declaration on the Rights of
Indigenous Peoples and free, prior and informed consent
principles, and prioritizes long-term planning and
protection for cultural heritage, sacred sites, and a clean
environment.
Legislation that clearly states that tribal consultation
requirements cannot be waived, as the government-to-
government relationship and the U.S. trust responsibility
requires tribal consultation in all circumstances. No
waivers for tribal consultation.
Questions Submitted by Representative Garcia
Question 1. Can you elaborate on the importance of place-based
spiritual practices to Tribal Nations and their citizens?
Answer. Traditional religious and ceremonial practices of Native
Americans are often inseparably bound to specific areas of land. Much
of that sacred land today is outside of tribal jurisdiction and is
located on Federal, state and private lands--and is protected in a
checkerboard fashion. Regarding the border wall, migrations between
places have always occurred and the area has a rich history that will
be forever destroyed with the wall. Such is not sustainable and makes
all efforts for consistent protection of sacred places untenable.
Moreover, the failure of a consistent environmental policy regarding
any land development means that sacred places and cultural heritage are
not protected, and threatens the long-term sustainability for all of
us.
Late Native American theologian Vine Deloria, Jr. contrasts western
religion's temporal framework with Native American religious beliefs'
spatial framework: ``The vast majority of Indian [T]ribal religions [.
. .] have a sacred center at a particular place, be it a river, a
mountain, a plateau, valley, or another natural feature. This center
enables the people to look out along the four dimensions and locate
their lands, to relate all historical events within the confines of
this particular land, and to accept responsibility for it. Regardless
of what subsequently happens to the people, the sacred lands remain as
permanent fixtures in their cultural or religious understanding.''
Question 2. In what ways has the Federal trust responsibility
evolved to include the consideration and protection of tribal sacred
sites?
Answer. In exercising its authority over American Indian and Alaska
Native affairs, there is a ``distinctive obligation of trust incumbent
upon the [Federal] Government that involves moral obligation of the
highest responsibility.'' Seminole Nation v. United States, 316 U.S.
286, 296-97 (1942). The basis for this special legal relationship
between Indian people and the Federal Government is found directly in
the Constitution and memorialized in treaties. This trust relationship
applies to all Federal agencies and to all actions that may potentially
affect Tribal Nations.
This responsibility has also been affirmed by statute to apply to
the protection of religion and sacred sites. In 1978, Congress enacted
the American Indian Religious Freedom Act (AIRFA), which includes the
declaration that it is ``the policy of the United States to protect and
preserve for American Indians their inherent right of freedom to
believe, express, and exercise the traditional religions of the
American Indian, Ekimo, Aleut, and Native Hawaiians, including but not
limited to access to sites, use and possession of sacred objects, and
the freedom to worship though ceremonials and traditional rites.''
Unfortunately, AIRFA was found by the courts to be unenforceable and
not much more than a policy statement, leaving tribes and their
citizens with no way to protect sacred sites.
The legislation that applies to the protection of sacred sites,
which includes but is not limited to the National Environmental Policy
Act, the National Historic Preservation Act, the Archaeological
Resources Protection Act, and the Native American Graves Protection and
Repatriation Act, only provides for a procedural right for tribal
consultation. This legislation does not prioritize the long-term
sustainability of resources and the environment, and does not
prioritize leaving sacred sites and archaeological areas alone.
Instead, they allow tribes to be heard and their positions to be
considered, but the Federal agency can act however it would like if it
follows those procedures, as long as it is not arbitrary and
capricious.
If Congress established strong policy and legislation that
prioritized long-term environmental protection over short-term economic
reward, implemented the U.N. Declaration on the Rights of Indigenous
Peoples and required the free, prior and informed consent of tribes
where sacred, archaeological or other environmental areas were
affected, then the environmental and preservation laws would actually
mean something. And please, no waivers for tribal consultation.
*****
ATTACHMENT
ASSOCIATION ON AMERICAN INDIAN AFFAIRS
Rockville, Maryland
March 10, 2020
Edward A. Boling
Associate Director for the National Environmental Policy Act
Council on Environmental Quality
730 Jackson Place NW
Washington, DC 20503
Re: Demand for Tribal Consultation on proposed update to the
regulations implementing the National Environmental Policy Act,
Docket CEQ-2019-0003-0001
Dear Associate Director Boling:
The Association on American Indian Affairs (``Association'')
submits the following comments on the Council on Environmental
Quality's (CEQ) proposed changes [Docket No. CEQ-2019-0003-0001] to the
implementing regulations for the National Environmental Policy Act
(NEPA) at 40 CFR 1500-1505 and 1507-1508.
The Association is the oldest non-profit serving Indian Country
protecting sovereignty, preserving culture, educating youth and
building Tribal capacity. The Association was formed in 1922 to change
the destructive path of federal policy from assimilation, termination
and allotment, to sovereignty, self-determination and self-sufficiency.
Throughout its 98-year history, the Association has provided national
advocacy on watershed issues that support sovereignty and culture,
while working at a grassroots level with Tribes to support the
implementation of programs that affect real lives on the ground.
The Association's vision: to create a world where diverse Native
American cultures and values are lived, protected and respected, has
demanded that the Association dedicate significant resources to
protecting Native American cultural, religious, and sacred places.
These special land areas are often called ``sacred sites,'' but are
used by Tribes and their citizens in a variety of ways--and always as
places that must be protected and secured in consultation with Tribal
governments.
What the CEQ has called for in its proposed regulatory changes are
the result of a misguided reform effort whose ultimate outcome would be
heavily biased in favor of development interests and would both
undermine protections for our irreplaceable cultural and environmental
resources and fail to produce the efficiencies it seeks. The
Association calls upon CEQ to withdraw these proposed regulations and
enter into required consultations with Tribal Nations.
The proposed rule changes were developed without Tribal
consultation. CEQ's Instead, CEQ simply issued a letter on January 13,
2020 to Tribal leaders inviting them to participate in the two public
meetings. Federal law, including Executive Order 13175, requires
agencies to engage in government-to-government consultation with Tribes
when considering regulatory changes that would affect Tribal Nations.
Given the magnitude of the proposed changes, and the importance of NEPA
in protecting Tribal cultural resources, this rulemaking clearly
requires formal tribal consultation.
For this reason, the Association requests that the agency cease its
rulemaking process and undertake appropriate Tribal consultations on
the proposed changes to the NEPA regulations immediately. Tribal
consultations should occur in various regions throughout Indian
Country, such that Tribal concerns are broadly reflected in this
rulemaking process. These consultations must occur prior to any
proposed rulemaking.
There is one benefit in the proposed rules, which is that Tribes
are specifically invited to comment when the effects are off-
reservation (as opposed to only when there are on-reservation effects).
40 C.F.R. Sec. 1503.1(a)(2)(ii), Sec. 1506.6(b)(3)(ii). However, there
are many downfalls of the proposed rules, including limiting NEPA
review, eliminating the review of indirect and cumulative effects, and
creating barriers to judicial review. Further, these regulations were
proposed with very limited and fast-tracked Tribal consultation, even
though the proposed rule states that this is not a regulatory policy
with Tribal implications.
Nevertheless, it is the Association's opinion that the overall
effort to revise the NEPA review process as proposed is badly flawed
and does not protect Tribal interests or the interests of health,
safety and welfare of all peoples for the additional following reasons:
1. Disregarding Environmental Justice
NEPA reviews are one of the primary ways the Federal Government
considers the frequently disproportionate impacts that large-scale,
highly disruptive projects and facilities have on people of color,
Indigenous peoples, and poor and immigrant populations. Central to
consideration of disproportionate burdens is the consideration of
cumulative impacts, which result from past, present, and reasonably
foreseeable future actions in a project area. The current proposal
explicitly eliminates the requirement to consider cumulative impacts,
Sec. 1506.7. Further, the CEQ's Environmental Justice Guidance under
NEPA, which outlines environmental justice principles and
considerations in the NEPA process, would be rescinded.
Sec. 1508.1(g) would redefine ``effect'' to mean impacts of an
action that are ``reasonably foreseeable'' and that ``may include''
impacts that occur later or farther from (in distance) the area of
proposed effect. This would also gut the existing law and regulation's
coverage of indirect and cumulative effects of projects, especially in
regard to historic properties where context, setting, and viewscapes
are important considerations. In another example, CEQ wants to link
``reasonableness'' of a program alternative to include consideration of
``technical feasibility,'' ``consistency,'' ``practicality,'' and
``affordability.'' Under these terms, it would be easy for both
agencies and proponents to arbitrarily limit NEPA reviews and the
identification of potential alternatives. The most troubling aspect of
these changes is that agencies and project proponents would be able to
make these determinations without an opportunity for public comment.
2. Giving the Fox the Keys to the Henhouse
Companies would be allowed to write their own environmental
reviews, and federal contractors would no longer need to disclose
conflicts of interests or financial stakes in the projects they are
reviewing. Sec. 1506.5(c). This would remove the government-to-
government requirement between Tribes and federal agencies, relegating
that important mandate and fiduciary responsibility to a non-
governmental contractor in violation of federal laws.
In addition, the reason NEPA has long required agencies to maintain
responsibility of reviews is because they are charged with making
decisions in the public interest. Industry makes decisions based on
profit and would have no incentive to consider any alternatives to a
proposal, or to take a hard look at its environmental consequences.
This would relegate NEPA to a bias one-sided report--giving the
proponent all power at the expense of our Tribal Nations' and the
public's health, safety and welfare.
3. Loopholes to Avoid Environmental Review and Public Input
The proposed rules provide several avenues for agencies to avoid
NEPA review. Agencies could attempt to avoid NEPA altogether by
claiming that they are providing ``minimal'' funding for or have
``minimal'' involvement in a private development proposal.
Sec. Sec. 1501.1(a)(1) & 1508.1(q). If that doesn't work, an agency
could claim that complying with NEPA would be inconsistent with
Congress's intent under another statute, or that an entirely different
process designed to satisfy other goals could serve as a substitute for
environmental analysis and public review under NEPA. Those decisions
could be made on a case-by-case basis (i.e., behind closed doors with
the polluter). Sec. 1501.1(a)(4)-(5) & (b).
4. Prioritizing Speed of Approvals Over Review and Tribal Consultation
Where NEPA would apply, agencies would be encouraged to do the bare
minimum level of analysis. Environmental Assessments and Environmental
Impact Statements would be subject to short and strict timelines, and
environmental documents would be limited in page numbers. Detailed
environmental impact statements would only be prepared as a last
resort, and a proposed action's impacts to irreplaceable archaeological
resources, parks, wilderness, endangered species, or other sensitive
resources would no longer be a factor in consideration of whether
detailed analysis is necessary. Sec. Sec. 1501.3, 1501.4, 1501.5,
1501.10.
The shortened timeline for environmental review and limited
document length could pose substantial barriers to Tribal consultation.
Agencies, on fast tracks for approval, can speed through Tribal
consultation, exacerbating existing shortcomings with federal agency
implementation of Tribal consultation requirements. The strict page
limits and timelines may also pose barriers to effective consultation
under the National Historic Preservation Act.
5. Pushing Polluter Priorities Over Community Concerns
In the rare instance that a proposal would need to go through full
environmental review, it could be prejudiced from the get-go, with the
so-called ``purpose and need'' defined by the private company seeking
approval. Sec. 1502.13. If industry designs the purpose and need, it
sets the stage for NEPA review on narrow terms: the only alternatives
that must be considered would need to fit that purpose and need, and
they must be ``economically and technologically feasible'' for the
company. Sec. Sec. 1502.14, 1508.1(z). In other words, all roads would
lead to industry development, and the government could absolutely
ignore alternative courses of action proposed by Tribes and members of
the public who depend on healthy forests and wildlife habitat, clean
air and water, and other resources, for cultural and religious
practices, as well as health and safety.
6. Ignoring Severe Environmental and Health Impacts
Indirect effects are completely deleted from the proposed
regulations. Analysis of impacts associated with a proposal to mine,
drill, or log would be limited to those deemed to have ``a reasonably
close causal relationship to the proposed action,'' with no requirement
to analyze indirect or cumulative effects that are considered to be
``remote in time, geographically remote, or the product of a lengthy
causal chain'' (i.e., climate change). Sec. 1508.1(g).
7. Institutionalizing Climate Denial into Federal Decision-making
It is long-settled that agencies are required to consider not only
the impacts a federal decision may have on the climate crisis, but also
the impacts of climate change on federal projects. The primary way
federal agencies have considered climate impacts is through analysis of
indirect and cumulative impacts, which this proposal explicitly
eliminates. Sec. 1506.7. By eliminating indirect and cumulative impact
analyses, this proposal allows the government to approve
environmentally destructive projects, such as oil pipelines, with no
consideration of their contribution to climate change. It also puts
communities at risk by allowing agencies to fund projects that are less
resilient to severe drought, stronger hurricanes, and more severe
weather.
8. Attempts to Silence the Public and Shut the Courthouse Doors
The government could claim that public comments are not
``specific'' enough or do not include reference to data sources and
scientific methodologies and therefore are deemed ``forfeited.''
Sec. Sec. 1500.3(b), 1503.3(a), 1503.4. Comments that are not submitted
within the agency's strictly imposed time limits would not be
considered. Sec. Sec. 1500.3(b), 1501.10, 1503.3(b), 1503.4. Then, if
aggrieved communities or individuals want to challenge an inadequate
NEPA analysis in court, they may be precluded from doing so if they did
not meet the ``exhaustion'' requirements and could potentially even be
required to provide a bond. Sec. 1500.3(b)-(c). These requirements
place undue burdens upon Tribal Nations and others potentially impacted
by proposed projects, and can shield agencies from litigation in the
event of improper procedure. Once in court, the agency may claim that
the court must presume that it followed the law, based on a
certification in its record of decision. Sec. 1502.18.
9. Heavily Weighted in Favor of the Developer
CEQ published the proposed regulatory changes on January 10, 2020,
in accordance with the directives established under Executive Order
13807 (issued August 15, 2017), which set forth a path for
``Establishing Discipline and Accountability in the Environmental
Review and Permitting Process for Infrastructure.'' Among the steps
already taken under EO 13807 were the creation of a ``One Federal
Decision'' standard on project reviews through a single, unified NEPA
document and the formation of an interagency working group to evaluate
the environmental review processes to ``identify impediments to
efficient and effective environmental review and authorizations for
infrastructure projects.'' The proposed regulatory changes before us
today constitute the end result of this process, which was tainted from
the beginning by the administration's desire to greatly limit both the
scope and duration of the review requirements, thus reducing the amount
of avoidance, minimization, mitigation, and remediation work needed to
ensure sound environmental and cultural resources stewardship. For
example, the requirement of an economic analysis [Sec. 1501.2(b)(2)] to
justify NOT carrying out types of NEPA work will likely incentivize the
constraining of evaluation and mitigation activities.
10. Create New and Problematic Policies Reducing NEPA Compliance
Under the proposed changes, agencies would be authorized to
arbitrarily decide that non-federal actions that meet an undefined
``minimal'' level of federal involvement would be exempt from NEPA
requirements under a new Threshold Applicability Analysis
[Sec. 1501.1]. Agencies would also be allowed to designate some federal
projects as ``non-major'' [Sec. 1507.3] based on an arbitrary
percentage level; there would be a significant expansion in the number
of Categorical Exclusions [Sec. 1506.7]. Further changes such as the
replacement of ``exorbitant'' with ``unreasonable'' would act to limit
the universe of potential alternatives, reduce study or permit areas,
and allow federal agencies and permit applicants to ignore resources
that most certainly will be adversely affected. The proposed changes
will increase ambiguity in the process and reduce its ability to
identify environmental and cultural resource baselines, evaluate
significance and effects, and work to avoid and minimize adverse
effects.
11. Limit Public Involvement
The language contained in Sec. 1500.3(b)(3) would prevent comments
NOT submitted during the formal EA and EIS comment periods from being
considered later in the process. It is understandable and reasonable
for agencies and project proponents to want comments to be submitted in
a timely manner to avoid having to go back and rework designs and the
review process itself simply to accommodate stakeholders who were late
in submitting comments. Nevertheless, one of the fundamental goals of
NEPA is to incorporate, to the maximum extent practicable, the
viewpoints of the public on development projects that use public funds
and/or lands. This is to ensure that the mistakes of pre-NEPA project
and facilities construction are not repeated. Further, some flexibility
in the ability of interested parties to provide comments is necessary
when new issues and information arise over the course of a NEPA
process. This is a common occurrence. Language must be added to the
proposed rule that would require project managers to take into
account--even after the expiration of the formal comment period--new
and substantive issues raised by the public.
12. Rejects the Scale and Complexity of Projects
The changes put forward by CEQ make no distinction between minor
proposals with no or minimal effects and large projects with major
impacts on the landscape. CEQ seeks more clarity and efficiency from
the NEPA process, and small-scale actions with minimal environmental
risk would clearly benefit from such a framework. Yet the draft changes
before us would produce exactly the opposite effect--larger, more
complex, and better-funded proposals would be incentivized to reduce
their NEPA compliance responsibilities, while small project proponents
would be placed under the same regulatory burdens as their bigger
colleagues.
13. Cultural Resources Would Suffer Adverse Impacts
It is difficult to underestimate how Tribal cultural heritage would
be adversely affected by these proposed changes. While NEPA and the
National Historic Preservation Act are distinct laws, with their own
implementing regulations, there is a synergy between the two statutes
that is both mutually beneficial and reinforcing. The current NEPA
regulations integrate NEPA and National Historic Preservation Act
(NHPA) compliance and enforcement, ensuring that NEPA documents
disclose information about cultural resources and that these resources
are considered during a project planning process so that efforts can be
made to avoid and minimize impacts to historic properties. NHPA Section
106 activities benefit because NEPA documents reach a broad audience,
expanding the audience for disclosing information to the public about
the presence of resources and potential impacts. Section 106 reviews,
if done early and properly, will inform the development and evaluation
of NEPA program alternatives and the creation of strategies to avoid
and minimize impacts. The proposed changes, by reducing the amount of
NEPA work to be done, would inappropriately reduce the scope of
analysis for federal actions and eliminate or reduce requirements for
consulting with federally recognized Tribes and coordinating with other
stakeholders.
CEQ's proposed changes are contrary to the long-standing practice
of ensuring that our Tribal Nations' and generally the Nation's
cultural heritage is protected for future generations. Under the CEQ
proposal, cultural resources would no longer receive the consideration
and protection they do today. Once cultural resources and historic
properties are destroyed or degraded, they are lost forever; they are
NOT renewable resources. If we do less to identify and protect cultural
heritage areas, it will inevitably lead to a significant loss of our
cultural heritage and environmental integrity.
If you have questions, please do not hesitate to contact me at
[email protected] or 240-314-7155.
Yakoke,
Shannon Keller O'Loughlin, Esq.,
Executive Director
______
Mr. Gallego. Thank you. The Chair now recognizes Mr. Steve
Hodapp, a retired independent contractor and environmental
specialist.
STATEMENT OF STEVE HODAPP, RETIRED INDEPENDENT CONTRACTOR AND
ENVIRONMENTAL SPECIALIST, LEXINGTON, VIRGINIA
Mr. Hodapp. Good afternoon, Chairman Gallego, Ranking
Member Gosar, and other members of the Committee. I appreciate
the chance to testify before you this afternoon. For the last
10 years until my retirement in March, I have been working as a
contractor, supporting CBP environmental compliance efforts
primarily in the state of Arizona. The major point of my
testimony today is that, in the execution of its border
security mission, CBP fully complies with all the applicable
laws as provided in the REAL ID Act and, in fact, often exceeds
the legal requirements.
In 2016, the House Natural Resources Committee requested
the Interior Department to provide a list of all peer-reviewed
studies which documented impacts on natural resources resulting
from border construction. After 6 months, the Interior
Department could not produce a single study. It is important to
understand that the waiver authorized in the REAL ID Act only
applies to barrier construction. It doesn't apply to any other
construction activities by Border Patrol, towers or border
patrol stations, roads, etc.
It is also important that when the Secretary applies the
REAL ID Act, although it would waive these laws in their
entirety, CBP, in fact, complies with the substantive portions
of these laws. For example, if the National Historic
Preservation Act were to be waived, CBP would still conduct a
cultural resource survey. CBP would still treat any resources
that are discovered in accordance with the procedures that are
in place for protecting cultural resources.
CBP has been working cooperatively with the Tohono O'odham
Nation for a number of years to develop and implement border
security on the Nation's lands. For the last 10 years
specifically, we have been working on deployment of a
surveillance tower system within the Nation's lands. We have
coordinated with the tribal historic preservation officer on
all the roads, all the tower sites. And where we found cultural
resources, we have gone to alternate tower sites.
We have used ground-penetrating radar to go beyond the
visual surveys which are normally the standard protocol for
locating cultural resources. I'd like to talk a little bit and
turn back the clock a little with regard to Monument Hill. In
2002, tragically, Kris Eggle, park ranger at the Organ Pipe
Cactus National Monument, was killed at the border by illegal
drug cartels.
Within a few months, the Park Service shut down the entire
border and 60 percent of the Park because it was unsafe for
visitors. Within a year, the Park Service began an
environmental assessment. The Park Service built the first road
all along the entire border of the monument and the adjacent
fence.
When they did their environmental assessment in 2003, they
found no significant cultural resources along this road,
including at Monument Hill and Quitobaquito. The Tribe made no
comments about the cultural significance of these sites. In
2007, CBP issued an environmental assessment to upgrade the
fence at Lukeville. This would widen the footprint from 30 to
60 feet and, in this case, again, CBP issued an environmental
assessment. We did cultural resource surveys. Even though this
wall section was waived, we found no cultural resources. The
Tribe made no comments about the cultural significance of
Monument Hill, even though a border wall was constructed on
Monument Hill.
And in 2012, again, CBP did an environmental assessment
about maintenance of the road on Monument Hill and on the fence
on Monument Hill, and again the Tribe made no comment and CBP
found no significant risks to cultural resources from that
action. So, only now in May 2019, when CBP has again solicited
comments from the Tribe and others, has the issue of these
sacred sites been raised to CBP, not in any of these previous
actions.
With regard to Quitobaquito, again, CBP has worked
cooperatively with the Park Service and with the Fish and
Wildlife Service to have appropriate stand-off distances for
water withdrawal and protection of that important resource
during the border construction activities. Thank you.
[The prepared statement of Mr. Hodapp follows:]
Prepared Statement of Steve Hodapp, Environmental Specialist/
Independent Contractor, Retired
Good afternoon Chairman Gallego, Ranking Member Cook and
distinguished members of the Subcommittee. It is an honor to have the
opportunity to testify before you today regarding the environmental
consequences of border security construction in Arizona.
My name is Steve Hodapp, for the last 10 years, until my retirement
last March, I was working as a Contractor supporting the environmental
compliance efforts of the U.S. Customs and Border Protection (CBP),
primarily in the state of Arizona. The major point of my testimony is
that in the execution of its border security mission, CBP fully
complies with all applicable laws as provided in the REAL ID Act, and
in fact, often exceeds the legal requirements. Adverse impacts of CBP
construction activities have often been grossly mis-characterized. In
2016, the House Natural Resources Committee requested that the
Department of the Interior provide a list of peer-reviewed publications
which document the impacts of CBP actions on natural resources. The
Department of the Interior could not identify a single peer-reviewed
study in 6 months' time. In fact, a majority of the citations provided
by the Department were not even from peer-reviewed publications. CBP
has completed a number of important conservation measures in the state
of Arizona in recent years (see attached).
First, it is important to understand that the environmental waiver
authorized on a bi-partisan basis by Congress in the REAL ID Act only
applies to construction of border barriers, and such roads as are
required for border barrier construction. All other CBP construction
activities: for roads, towers, bridges, operations, border patrol
stations, lighting, etc. must be completed in full compliance with all
applicable environmental laws. Congress only provided the statutory
waiver to a small subset of border security construction activities. In
fact, effective border security requires a combination of deterrence
factors, including: a barrier, technology to determine when the barrier
has been breached, enforcement personnel, adequate access for
enforcement personnel to reach the border and prompt adjudication
procedures. If Congress desires to enhance border security further,
then these same statutory authorities should be applied to other border
construction activities.
Second, while the REAL ID Act authorizes a complete waiver of
environmental or other statutes, as determined in the sole discretion
of the Secretary of the Department of Homeland Security, in practice,
CBP complies with the substantive provisions of the various
environmental laws. For example, CBP still undertakes cultural resource
surveys in areas where there will be ground disturbance. And, if
cultural resources are discovered during the surveys, those resources
are treated in accord with accepted practice. In other words, any
significant cultural resources identified will either be collected for
future study and placed with an appropriate entity for curation, or if
collection is impracticable, the resources will be documented in place
in accord with accepted practice.
While CBP does not formally consult with the State Historic
Preservation Officer (or in this case the Tribal Historic Preservation
Officer) if the National Historic Preservation Act is waived, CBP still
solicits their input; as well as input from the public, and other
interested parties regarding border barrier projects. Any input
received is carefully reviewed by CBP and used to ensure that potential
impacts on natural and cultural resources are minimized to the extent
possible. On May 6, 2019, CBP broadly issued a letter seeking comments
on the proposed bollard wall in Pima and Cochise Counties. The letter
detailed how to provide comments which were accepted from interested
parties on this project until July 5, 2019 (see CBP National
Environmental Policy Act webpage).
CBP is concerned about potential impacts of its activities on
cultural resources of concern to the Tohono O'odham Nation, and has
taken, and continues to take all possible steps to minimize the impact
of its activities on tribal cultural resources consistent with its
border security responsibilities. In fact, according to the Tribal
Historic Preservation Officer, CBP has conducted more extensive
archeological surveys on the Tohono O'odham Nation lands than anyone
else (including the Tribe).
CBP and the Tohono O'odham Nation have been working cooperatively
on border security for many years. For the last 10 years, CBP and the
Tribe have been working on the deployment of a surveillance tower
system across the Nation's lands. Several years ago, CBP's contractor
was in the field conducting test borings to evaluate the engineering
feasibility of certain tower sites. During this activity, the
contractor inadvertently knocked over two saguaro cacti, a species
which is considered sacred to the Tribe. CBP took immediate action to
shut down the contract and to provide remedial training to the
contractor, and enhance the monitoring protocol to ensure future
incidents were avoided. CBP erected and stabilized the cacti which were
damaged, and provided additional saguaro cacti at a 2:1 replacement
ratio. This mitigation approach was agreed to by the Tribe.
CBP fully coordinated the environmental assessment for this tower
project with the Tribe, and all tower sites and roads to be upgraded
were approved by the Tribal Historic Preservation Officer, Peter
Steere. CBP even went beyond the traditional visual archeological
surveys and performed ground penetrating radar surveys of sites where
visual surveys were inconclusive, including an additional site as
requested by the Tribal Historic Preservation Officer.
Despite the completion of surveys before the final site selection
decision was made, additional cultural resources were discovered when
construction crews went to the field last fall. CBP and the Tribal
Historic Preservation Officer agreed on techniques to protect cultural
resources within the road prism, and CBP changed one of its tower sites
to a location where cultural resources were not present.
In addition to this survey for the tower project, CBP has completed
surveys of approximately 220 miles of roads on the Tohono O'odham lands
which are needed for border patrol purposes. The purpose of these
surveys was to enable CBP to conduct future maintenance of these roads,
which would benefit both tribal access and border security. During
these surveys, several dozen cultural resource sites, a number of which
are significant sites, were located. Although these surveys were
completed nearly 6 years ago in 2014, these sites remain unprotected
today and are being impacted by ongoing road traffic.
With specific regard to the cultural significance of Monument Hill,
I point out the following:
1. In 2003, the National Park Service issued an environmental
assessment for construction of a border barrier and
adjacent 30-foot-wide road along 35 miles of monument
boundary, including Monument Hill. The National Park
Service completed an archeological survey of the project
site and determined no significant cultural resources would
be impacted. The Tohono O'odham Tribe provided no comments
on the environmental assessment regarding potential impacts
from either road construction or border barrier
construction on either Monument Hill or Quitobaquito
Springs.
2. In 2007, CBP issued an environmental assessment for 5.2 miles of
mesh pedestrian fence centered on Lukeville, and located
about 3 feet north of the National Park Service-constructed
vehicle fence (within the Roosevelt Reservation). This
project included 0.65 miles of primary pedestrian fence on
Monument Hill. CBP conducted an archeological survey of the
project site and the environmental assessment found no
potential impacts on cultural resources. The Tribe made no
comment about cultural significance of Monument Hill.
3. In 2009, CBP issued an environmental assessment for construction
of 10 surveillance and communication towers within and
adjacent to the Monument, including one tower within 2
miles of Monument Hill. The Tribe made no comment on this
environmental assessment regarding the cultural
significance of Monument Hill.
4. In 2012, CBP issued an environmental assessment addressing
maintenance and repair of all existing CBP tactical
infrastructure (roads, fences, bridges, lighting,
vegetation control, drainage structures, surveillance
towers, etc.) in Arizona. The proposed action included
maintenance of the border fence constructed by the National
Park Service and the adjacent road on Monument Hill. The
Tribe provided no comment on this environmental assessment
regarding the cultural significance of Monument Hill.
Only the Tohono O'odham Nation can provide an explanation regarding
why there has been no comment on the cultural significance of Monument
Hill prior to the most recent solicitation for comment in May 2019. It
is likely that construction of a border barrier will have some impact
on the culturally significant Monument Hill and that no mitigation is
likely to achieve both complete protection of this site and border
security objectives. Procedures adopted by CBP to mitigate impacts on
cultural resources as described above will reduce the overall impact of
this project on this significant site.
The Quitobaquito Spring which exists in the monument today is a
cattle pond constructed by a rancher in the 1860s. The precise
configuration of the spring prior to the 1860s is unknown. According to
the U.S. Geological Survey (Hydrogeology of the Quitobaquito Springs
and La Abra Plain area, Organ Pipe Cactus National Monument, Arizona,
and Sonora, Mexico Water-Resources Investigations Report 95-4295), the
source for this spring is the highly fractured rock northeast of the
springs (within the monument). These USGS studies suggest that any
pumping south of the re-charge area have not been demonstrated to have
an impact on the spring.
Since Quitobaquito Springs is one of few natural water sources in
the monument vicinity, it has long been an important source of water.
Quitobaquito Springs also provides habitat for two listed species, the
Quitobaquito pupfish and the Sonoita mud turtle. Although this spring
is only about a quarter mile north of the US/MX border which is
traveled by CBP agents during patrol there is no evidence that either
of these species have been impacted by CBP activity. Pursuant to a 2009
biological opinion (AESO 22410-2009-F-0368), CBP does not patrol within
a 40-acre buffer area around this spring. For these reasons, no
biological impacts to Quitobaquito Springs are anticipated from this
project. Any isolated cultural resources near Quitobaquito Springs will
be addressed in a similar manner to any isolated resources located on
Monument Hill.
*****
ATTACHMENT
significant conservation actions undertaken by cbp in arizona since
2010
*CBP has conducted the most extensive archeological surveys of the
Tohono O'odham Nation lands ever undertaken. This includes surveys
along more than 250 miles of roads and more than a dozen tower sites.
The information collected in these surveys has been used by CBP to
reduce or eliminate potential impacts of tactical infrastructure on
cultural resources. For example, CBP recently abandoned a preferred
tower site due to the presence of significant cultural resources at
that site.
During these cultural resource surveys, CBP discovered several
dozen historic and pre-historic archeological sites along, and within,
the road corridors. A number of the sites were determined to be
culturally significant. Since the discovery of these sites in 2014, the
Tribe has taken no action to conserve these sites, and the sites
continue to degrade due to ongoing vehicular traffic.
*CBP provided $2.9M to the National Park Service to restore Sonoran
Desert habitat impacted by past illegal vehicle border crossings.
*CBP has provided more than $2M for jaguar conservation. This
funding has been used for surveying and monitoring jaguars as well as a
broad public education campaign.
*CBP has provided $2.8M for Sonoran pronghorn conservation and
recovery. These funds have been used to establish a captive breeding
population, establish a second pronghorn population on Kofa National
Wildlife Refuge, inventory and monitoring of pronghorn, studies of
potential impacts of human activities on the species and other high
priority conservation actions. CBP funding has been a key factor in the
ongoing recovery of this species.
*CBP has provided $1.3M for conservation and recovery of lesser
long nosed bat. Funding provided by CBP has been instrumental in the
discovery of additional lesser long nosed bat colonies which has
supported efforts by USFWS to de-list this species.
*CBP provided funding to install a well to secure the habitat for
the endangered San Bernardino spring snail.
*CBP provided funding to establish new wetlands at San Bernardino
National Wildlife Refuge.
*CBP provided more than $500K to secure the habitat of listed fish
at San Bernardino National Wildlife Refuge. Actions implemented with
these funds include: construction of a fish barrier to prevent upstream
migration of exotic species and erosion control measures along Black
Draw and Hay Hollow to reduce sedimentation impacts on listed fish in
ephemeral streams.
*Due to the CBP border security efforts in the vicinity of Organ
Pipe Cactus National Monument, the National Park Service was able to
open 70 percent of the monument which had been closed to public use for
more than 11 years (2003 to 2014).
______
Questions Submitted for the Record to Mr. Steve Hodapp, Retired
Independent Contractor & Environmental Specialist
Questions Submitted by Representative Bishop
Question 1. Lands within the Roosevelt Reservation are not within
Organ Pipe Cactus National Monument, is that correct?
Answer. Border barrier construction by the Department of Homeland
Security on Federal land in Pima County, Arizona is confined to the
Roosevelt Reservation. The Roosevelt Reservation is a 60-foot-wide
strip of public land which was set aside in a Presidential Proclamation
by Theodore Roosevelt in 1907 for border security purposes. When Organ
Pipe Cactus National Monument was established by Presidential
Proclamation in 1937, it was established subject to prior public land
withdrawals. In fact, the 1937 monument establishment proclamation
specifically recognizes the 1907 Roosevelt Reservation withdrawal.
Therefore, the Roosevelt Reservation is entirely outside the boundary
of Organ Pipe Cactus National Monument, and construction of the border
barrier within the Roosevelt Reservation will have no direct effect on
the monument.
Question 2. Your testimony suggests that impacts from CBP projects
have been exaggerated or mischaracterized. Can you provide any example
of this?
Answer. The media and Federal agencies have continually
mischaracterized and exaggerated the actual impacts of CBP projects and
activities. Examples of these mischaracterizations include:
(a) U.S. Fish and Wildlife Service determined that construction of
fixed towers under the Tucson West and Ajo 1 tower projects would
result in take of 4.8 lesser long-nosed bats per tower per year due to
bats colliding with fixed towers (see Biological Opinions 22410-2008-F-
0373 dated Sept 4, 2008 and 22410-F-2009-0089-R2 dated December 10,
2009 respectively). U.S. Customs and Border Patrol was therefore
required to monitor this take for a period of 5 years. Over the next 5
years, CBP spent more than $600,000 on contractors searching for bat
carcasses at these towers. No bat carcasses were ever located. The
impact predicted by the U.S. Fish and Wildlife Service was based on
studies of bat mortality at a wind farm located in West Virginia.
Further, the U.S. Fish and Wildlife Service never determined that any
cell phone tower, radio tower, TV tower, electrical tower, and other
fixed tower constructed within the range of the lesser long-nosed bat
in southern Arizona would result in take of the species.
(b) U.S. Fish and Wildlife Service determined that CBP maintenance
of 100 miles of existing, unpaved roads on Federal lands would result
in incidental take of Sonoran pronghorn due to collisions with
maintenance vehicles and harassment (see Biological Opinion 02EAAZ00-
2012-F-0170 dated November 6, 2012). There are approximately 1,300
miles of existing, unpaved roads within the range of the pronghorn.
These roads have been maintained and/or repaired by National Park
Service, U.S. Fish and Wildlife Service, Department of Defense and
Bureau of Land Management since 1968 when the pronghorn was listed. In
no consultation with any of these other agencies has U.S. Fish and
Wildlife Service ever determined that road maintenance or repair would
result in incidental take of pronghorn. In fact, there has never been a
collision with a Sonoran pronghorn reported in Arizona on an unpaved
road.
(c) In a letter dated December 17, 2009 from the AZ Fish and
Wildlife Service Field Supervisor to the Tucson Sector Chief Patrol
Agent, U.S. Fish and Wildlife Service requested CBP immediately
initiate Section 7 consultation regarding road dragging of the Geronimo
Trail ``in order to prevent the significant, and perhaps irreversible,
environmental damage we believe is imminent.'' The imminent damage
cited by U.S. Fish and Wildlife Service was sedimentation of listed
fish habitat within Black Draw which U.S. Fish and Wildlife Service
determined was occurring from ongoing dragging of Geronimo Trail. At
the time of this letter, U.S. Fish and Wildlife Service had no data to
support these dire predictions and relied on studies of non-relevant
species in unrelated ecosystems. Despite this lack of data, U.S. Fish
and Wildlife Service advocated for changes to CBP patrol activities.
The University of Arizona later completed studies funded by CBP which
documented that the source of sediment into the Black Draw was private
ranching lands located north of the Geronimo Trail, and that sediment
from CBP road dragging resulted in no measurable contribution to
sedimentation within the stream.
Question 3. What do you mean when you testify that CBP complies
with the ``substantive provisions of the environmental laws''?
Answer. In Section 102 of the REAL ID Act, Congress authorized the
complete waiver of any law as determined in the sole discretion of the
Secretary of the Department of Homeland Security when required to
enable border barrier construction on a timely basis. Since the first
application of the waiver authority, the Department of Homeland
Security has been dedicated to ``responsible environmental
stewardship'' in the construction of border barriers where ever the
waiver authority was exercised.
For example, CBP conducts archeological surveys which meet the
standards set forth in the National Historic Preservation Act prior to
surface disturbance. Similarly, CBP conducts surveys for species listed
under the Endangered Species Act. CBP seeks input from regulatory
agencies in the development of best management practices. CBP consults
with affected Federal land managers and tribal leaders to seek their
input on methods to minimize environmental impacts from border barrier
construction. CBP completes documentation which quantifies the actual
impact of its construction activities and makes that information
available to interested parties. These are all examples which
illustrate how CBP has complied with the substantive provisions of
various environmental laws which have been waived.
Question 4. What is the purpose of the environmental monitors used
by CBP?
Answer. The purpose of the environmental monitors is to ensure the
best management practices adopted by CBP are fully implemented (see
response to question #6). These monitors are responsible to report any
violations of best management practices to the government so that real-
time corrective action can be taken.
Question 5. What measures are in place to ensure water flow at
Quitobaquito Springs are not impacted by this project?
Answer. Quitobaquito Springs has been substantially altered in
recent history. Water from the spring is currently contained in an
impoundment constructed to serve cattle in the 1800s. Water is
delivered to this impoundment from the spring via a concrete-lined
channel. The National Park Service has constructed a small
(approximately 20-car capacity) parking lot at the impoundment and
interpretive trail around it.
U.S. Geological Survey has completed studies in the past which
determined that the source of water for the spring is located within
the monument north of the current spring outfall. The National Park
Service and U.S. Fish and Wildlife requested that no ground water be
withdrawn within 5 miles of the spring. CBP has agreed not to withdraw
any water within 7 miles of the spring. In addition, the U.S.
Geological Survey is performing real-time water flow monitoring of the
spring flow when these CBP wells are active. If there is any diminution
of flow during construction, then construction can be halted until
mitigation measures can be developed.
Question 6. What Best Management Practices are used by CBP to
minimize the impacts from border wall construction?
Answer. CBP has completed a number of border barrier projects over
the years. During these numerous projects, a standard set of Best
Management Practices (BMPs) has been developed. The following list of
BMPs were developed for another border barrier project in Arizona. The
actual BMPs to be applied for projects adjacent to Organ Pipe Cactus
National Monument will reflect a minor modification of these BMPs to
reflect local conditions.
General Best Management Practices
The following best management practices (BMPs) should be
implemented to avoid or minimize impacts associated with the Project
during construction. These represent project objectives for
implementation to the extent possible and will be incorporated into
construction and monitoring contracts.
1. The perimeter of all areas to be disturbed during construction
or maintenance activities in Sections D-5B and D-6 will be clearly
demarcated using flagging or temporary construction fence, and no
disturbance outside that perimeter will be authorized.
2. CBP will develop (in coordination with U.S. Fish & Wildlife
Service [USFWS]) a training plan regarding Trust Resources for
construction personnel. At a minimum, the program will include the
occurrence of the listed and sensitive species in the area, their
general ecology, sensitivity of the species to human activities,
protection afforded these species, and project features designed to
reduce the impacts to these species and promote continued successful
occupation of the project area environments by the species. Included in
this program will be color photos of the listed species, which will be
shown to the employees. Following the education program, the photos
will be posted in the office of the contractor and resident engineer,
where they will remain through the duration of the project. The
selected construction contractor will be responsible for ensuring that
employees are aware of the listed species.
3. Project Reports. For construction and maintenance projects
(e.g., fences, towers, stations, facilities) within 3 months of project
completion, a Project Report will be developed that details the BMPs
that were implemented, identifies how well the BMPs worked, discusses
ways that BMPs could be improved for either protection of species and
habitats or implementation efficiency, and reports on any federally
listed species observed at or near the project site. If site
restoration was included as part of the project, the implementation of
that restoration and any follow-up monitoring will be included. Annual
reports could be required for some longer-term projects. The project
and any annual reports will be made available to the USFWS.
4. Biological Surveys for each Project. CBP will either assume
presence of a federally listed species based on suitable habitat or
known presence, and implement appropriate measures or will, as part of
project design and planning, perform reconnaissance-level
preconstruction surveys to validate presence of suitable habitat.
5. Relocation of individuals of federally listed plants found in
the project area is generally not a suitable activity. Relocation of
aquatic species such as the water umbel and ladies'-tresses is not
appropriate. Relocation of small cacti has not been very successful,
and is not recommended. A salvage plan will be developed and approved
by the government prior to the action. The CBP biological monitor will
identify a location for storing any salvaged cactus and/or agaves. For
particular actions, the USFWS will advise CBP regarding the relocation
of plants.
6. Individual federally listed animals found in the project area
will be relocated by a qualified biologist to a nearby safe location in
accordance with accepted species-handling protocols to the extent
practicable.
7. All construction projects in habitats of federally listed
species will have a qualified designated biological monitor on site
during the work. The biological monitor will document implementation of
construction-related BMPs designed for the project to reduce the
potential for adverse effects on the species or their habitats. Weekly
reports from the biological monitor should be used for developing the
Project Report.
8. Where, based on species location maps or results of surveys,
individuals of a federally listed species could be present on or near
the project site, a designated biological monitor will be present
during construction activities to protect individuals of the species
from harm. Duties of the biological monitor will include ensuring that
activities stay within designated project areas, evaluating the
response of individuals that come near the project site, and
implementing the appropriate BMP. The designated biological monitor
will notify the construction manager of any activities that might harm
or harass an individual of a federally listed species. Upon such
notification, the construction manager may temporarily suspend all
activities in question and notify the Contracting Officer, the
Administrative Contracting Officer, and the Contracting Officer's
Representative of the suspense so that the key U.S. Army Corps of
Engineers (USACE) personnel can be notified and apprised of the
situation and the potential situation can be resolved.
9. Where a construction project could be located within 1 mile of
occupied species habitats but the individuals of the species are not
likely to move into the project area, a biological monitor is not
needed. However, the construction monitor will be aware of the species-
specific BMPs and ensure that BMPs designed to minimize habitat impacts
are implemented and maintained as planned. This category includes the
lesser long nosed bat and all aquatic species.
10. Particular importance is given to proper design and location of
roads so that the potential for road bed erosion into federally listed
species habitat will be avoided or minimized.
11. Particular importance is given to proper design and location of
roads so that the potential for entrapment of surface flows within the
roadbed due to grading will be avoided or minimized. Depth of any pits
created will be minimized so animals do not become trapped.
12. Particular importance is given to proper design and location of
roads so that the widening of existing or created roadbed beyond the
design parameters due to improper maintenance and use will be avoided
or minimized.
13. Particular importance is given to proper design and location of
roads so that excessive use of unimproved roads for construction
purposes that results in their deterioration that affects the
surrounding federally listed species habitat areas will be minimized.
Road construction and use for construction will be monitored and
documented in the Project Report.
14. Particular importance is given to proper design and location of
roads so that the fewest roads needed for construction will be
developed and that these are maintained to proper standards. Roads no
longer needed by the government should be closed and restored to
natural surface and topography using appropriate techniques. The Global
Positioning System (GPS) coordinates of roads that are thus closed
should be recorded and integrated into the USBP Geographic Information
System (GIS) database. A record of acreage or miles of roads taken out
of use, restored, and revegetated will be maintained.
15. The width of all roads that are created or maintained by CBP
for construction purposes will be measured and recorded using GPS
coordinates and integrated into the USBP GIS database. Maintenance
actions should not increase the width of the road bed or the amount of
disturbed area beyond the roadbed.
16. Construction equipment will be cleaned using BMPs prior to
entering and departing the project corridor to minimize the spread and
establishment of non-native invasive plant species.
17. Surface water from untreated sources, including water used for
irrigation purposes, will not be used for construction or maintenance
projects located within 1 mile of aquatic habitat for federally listed
aquatic species. Groundwater or surface water from a treated municipal
source will be used when close to such habitats. This is to prevent the
transfer of invasive animals or disease pathogens between habitats if
water on the construction site was to reach the federally listed
species habitats.
18. Materials such as gravel or topsoil will be obtained from
existing developed or previously used sources, not from undisturbed
areas adjacent to the project area.
19. If new access is needed or existing access requires
improvements to be usable for the Project, related road construction
and maintenance BMPs will be incorporated into the access design and
implementation.
20. When available, areas already disturbed by past activities or
those that will be used later in the construction period will be used
for staging, parking, and equipment storage, where practicable.
21. Within the designated disturbance area, grading or topsoil
removal will be limited to areas where this activity is needed to
provide the ground conditions needed for construction or maintenance
activities. Minimizing disturbance to soils will enhance the ability to
restore the disturbed area after the project is complete.
22. Removal of trees and brush in habitats of federally listed
species will be limited to the smallest amount needed to meet the
objectives of the project. This type of clearing is likely to be a
permanent impact on habitat.
23. Water for construction use will be from wells or irrigation
water sources at the discretion of the landowner (depending on water
rights). If local ground water pumping creates an adverse effect on
aquatic-, marsh-, or riparian-dwelling federally listed species,
treated water from outside the immediate area will be utilized.
24. Surface water from aquatic or marsh habitats will not be used
for construction purposes if that site supports aquatic federally
listed species or if it contains non-native invasive species or disease
vectors and there is any opportunity to contaminate a federally listed
species habitat through use of the water at the project site.
25. Water tankers that convey untreated surface water will not
discard unused water where it has the potential to enter any aquatic or
marsh habitat.
26. Water storage on the project area should be in closed on-ground
containers located on upland areas, not in washes.
27. Pumps, hoses, tanks, and other water storage devices will be
cleaned and disinfected with a 10 percent bleach solution at an
appropriate facility before use at another site. If untreated surface
water was used (this water is not to enter any surface water area). If
a new water source is used that is not from a treated or ground water
source, the equipment will require additional cleaning. This is
important to kill any residual disease organisms or early life stages
of invasive species that could affect local populations of federally
listed species.
28. CBP will develop and implement storm water management plans for
every project.
29. All construction will follow DHS management directive 5100 for
waste management.
30. A CBP-approved spill protection plan will be developed and
implemented at construction and maintenance sites to ensure that any
toxic substances are properly handled and that escape into the
environment is prevented. Agency standard protocols will be used. Drip
pans underneath equipment, containment zones used when refueling
vehicles or equipment, and other measures are to be included.
31. Non-hazardous waste materials and other discarded materials,
such as construction waste, will be contained until removed from the
construction site. This will assist in keeping the project area and
surroundings free of litter and reduce the amount of disturbed area
needed for waste storage.
32. To eliminate attracting predators of protected animals, all
food-related trash items such as wrappers, cans, bottles, and food
scraps will be disposed of in closed containers and removed daily from
the project site.
33. Waste water is water used for project purposes that is
contaminated with construction materials, or was used for cleaning
equipment and thus carries oils or other toxic materials or other
contaminants in accordance with state regulations. Waste water will be
stored in closed containers on site until removed for disposal.
Concrete wash water will not be dumped on the ground, but is to be
collected and moved off-site for disposal. This wash water is toxic to
aquatic life.
34. If an individual of a federally listed species is found in the
designated project area, work will cease in the area of the species
until either a qualified biological monitor can safely remove the
individual, or it moves away on its own, to the extent practicable,
construction schedule permitting.
35. Construction speed limits will not exceed 35 miles per hour
(mph) on major unpaved roads (graded with ditches on both sides) and 25
mph on all other unpaved roads. Night-time travel speeds will not
exceed 25 mph, and might be less based on visibility and other safety
considerations. Construction at night will be minimized.
36. No pets owned or under the care of the construction contractor
or any and all construction workers will be permitted inside the
project's construction boundaries, adjacent native habitats, or other
associated work areas. This BMP does not apply to any animals under
service to the USBP (such as canine and horse patrols).
37. If construction or maintenance activities continue at night,
all lights will be shielded to direct light only onto the area required
for worker safety and productivity. The minimum wattage needed will be
used and the number of lights will be minimized.
38. Light poles and other pole-like structures will be designed to
discourage roosting by birds, particularly ravens or raptors that may
use the poles for hunting perches.
39. Noise levels for day or night construction and maintenance will
be minimized. All generators will be in baffle boxes (a sound-resistant
box that is placed over or around a generator), have an attached
muffler, or use other noise-abatement methods in accordance with
industry standards.
40. Transmission of disease vectors and invasive non-native aquatic
species can occur if vehicles cross infected or infested streams or
other waters and water or mud remains on the vehicle. If these vehicles
subsequently cross or enter uninfected or non-infested waters, the
disease or invasive species could be introduced to the new area. To
prevent this, crossing of streams or marsh areas with flowing or
standing water will be avoided by construction vehicles and equipment,
and, if not avoidable, the construction vehicle/equipment will be
sprayed with a 10 percent bleach solution.
41. Materials used for on-site erosion control in uninfested native
habitats will be free of non-native plant seeds and other plant parts
to limit potential for infestation. Since natural materials cannot be
certified as completely weed-free, if such materials are used, there
will be follow-up monitoring to document establishment of non-native
plants, and appropriate control measures will be implemented for a
period of time to be determined in the site restoration plan.
42. Fill material brought in from outside the project area will be
identified as to source location and will be weed-free to the extent
practicable.
43. For purpose of construction, infrastructure sites will only be
accessed using designated roads. Parking will be in designated areas.
This will limit the development of multiple trails to such sites and
reduce the effects to federally listed habitats in the vicinity.
44. Appropriate techniques to restore the original grade, replace
soils, and restore proper drainage will be implemented for areas to be
restored (e.g., temporary staging areas).
45. A site restoration plan for federally listed species and
habitat will be developed during project planning and provide an
achievement goal to be met by the restoration activity. If seeding with
native plants is identified as appropriate, seeding will take place at
the proper season and with seeds from nearby stocks, to the extent
practicable. It is understood that some sites cannot be restored, and
the project planning documents should acknowledge this.
46. During follow-up monitoring and during maintenance activities,
invasive plants that appear on the site will be removed. Mechanical
removal will be done in ways that eliminate the entire plant and remove
all plant parts to a disposal area. All chemical applications on
refuges must be used in coordination with the Integrated Pest
Management Coordinator to ensure accurate reporting. Herbicides can be
used according to label directions. The monitoring period will be
defined in the site restoration plan. Training to identify non-native
invasives will be provided for CBP contractor personnel, as necessary.
47. Maintenance activities in cactus and agave habitat will not
increase the existing disturbed areas. Use of existing roads and trails
will be maximized in areas of suitable habitat for cactus and agaves.
Protection of the cactus will be stressed in environmental education
for contractors involved in construction or maintenance of facilities.
48. To prevent entrapment of wildlife species during emplacement of
vertical posts/bollards, all vertical fence posts/bollards that are
hollow (i.e., those that will be filled with a reinforcing material
such as concrete), will be covered so as to prevent wildlife from
entrapment. Covers will be deployed from the time the posts or hollow
bollards are erected to the time they are filled with reinforcing
material.
49. To prevent entrapment of wildlife species during the
construction of the project, all excavated, steep-walled holes or
trenches will either be covered at the close of each working day by
plywood or provided with one or more escape ramps constructed of earth
fill or wooden planks. The ramps will be located at no greater than
1,000-foot intervals and will be sloped less than 45 degrees. Each
morning before the start of construction and before such holes or
trenches are filled, they will be thoroughly inspected for trapped
animals. Any animals so discovered will be allowed to escape
voluntarily (by escape ramps or temporary structures), without
harassment, before construction activities resume, or removed from the
trench or hole by the biological monitor and allowed to escape
unimpeded.
BMPs for Temporary Impacts
1. Site restoration of temporarily disturbed areas such as staging
areas and construction access routes will be monitored as appropriate.
2. During follow-up monitoring of any restoration areas, invasive
plants that appear on the site will be removed. Mechanical removal will
be done in ways that eliminate the entire plant and remove all plant
parts to a disposal area. All chemical applications on refuges must be
used in coordination with the NPS Integrated Pest Management
Coordinator to ensure accurate reporting. Herbicides can be used
according to label directions. The monitoring period will be defined in
the site restoration plan. Training to identify non-native invasive
plants will be
Species-Specific BMPs
(Note the species-specific BMPs will be uniquely developed for each
species potentially found in the vicinity of the project. In this case,
the BMPs for Lesser long-nosed bat a formerly listed species in the
project area are representative of the BMPs which would be developed
for species in the project area).
Lesser Long-Nosed Bat
1. When planning activities, avoid, to the extent practicable,
areas containing columnar cacti (e.g., saguaro and organ pipe) or
agaves that provide the forage base for the bat.
2. Maintenance activities for facilities can occur at any time;
however, for major work on roads or fences where significant amounts of
equipment will be required, the October to April period is the
preferred period for such activities.
3. If construction or maintenance activities continue at night, all
lights will be shielded to direct light only onto the work site and the
area necessary to ensure the safety of the workers.
Question 7. Can you provide any additional details about the
cultural resources identified in the 2019 survey by the National Park
Service? Has there been previous border security work completed in
proximity to or on Monument Hill in which you have been involved?
Answer. The 2019 National Park Service archeological survey was
conducted along approximately 11 miles of border near Quitobaquito
Springs. The National Park Service has not reported any recent
archeological surveys on Monument Hill. Details from the 2019 National
Park Service survey have been redacted and are not available to the
public.
In 2003, the National Park Service issued an environmental
assessment for construction of a border barrier and adjacent 30-foot-
wide road along 35 miles of monument boundary, including Monument Hill
and Quitobaquito Springs. The National Park Service completed an
archeological survey of the project site and determined no significant
cultural resources would be impacted. The Tohono O'odham Tribe provided
no comments on the environmental assessment regarding potential impacts
from either road construction or border barrier construction on either
Monument Hill or Quitobaquito Springs.
In 2007, CBP issued an environmental assessment for 5.2 miles of
mesh pedestrian fence centered on Lukeville, and located about 3 feet
north of the National Park Service-constructed vehicle fence (within
the Roosevelt Reservation). This project included 0.65 miles of primary
pedestrian fence on Monument Hill. The disturbance corridor for this
project was expanded from the 30-foot-wide corridor under the 2003
National Park Service environmental assessment to the full 60-foot-wide
Roosevelt Reservation. CBP conducted an archeological survey of the
project site and the environmental assessment found no potential
impacts on cultural resources. The Tribe made no comment about cultural
significance of Monument Hill after this environmental assessment was
publicly released.
In 2009, CBP issued an environmental assessment for construction of
10 surveillance and communication towers within and adjacent to the
monument, including one tower within 2 miles of Monument Hill. The
Tribe made no comment on this environmental assessment regarding the
cultural significance of Monument Hill.
In 2012, CBP issued an environmental assessment addressing
maintenance and repair of all existing CBP tactical infrastructure
(roads, fences, bridges, lighting, vegetation control, drainage
structures, surveillance towers, etc.) in Arizona. The proposed action
included maintenance of the border fence constructed by the National
Park Service, the pedestrian fence on Monument Hill constructed by CBP
and the adjacent road on Monument Hill. The Tribe provided no comment
on this environmental assessment regarding the cultural significance of
Monument Hill.
The current CBP project on Monument Hill is located within the
Roosevelt Reservation and includes the areas addressed under the
previous environmental assessments referenced above. It is unknown why
the Tohono O'odham Tribe never expressed their concern about the sacred
nature of Monument Hill or Quitobaquito Springs during any of these
previous environmental compliance efforts.
Question 8. Was there a study or survey conducted at that location
prior to construction activities occurring? Was the Tribe involved in
that process?
Answer. The Roosevelt Reservation in the vicinity of both
Quitobaquito Springs and Monument Hill has been surveyed on multiple
occasions in the past. See response to Question #7.
Question 9. Is there evidence that the border wall will impact
listed species such as the Sonoran pronghorn?
Answer. There are Sonoran pronghorn populations both north and
south of the US/MX border. In the last decade, movement of a number of
pronghorn from the U.S. population have been monitored by GPS-enabled
collars. Data collected from these GPS collars confirms that movement
of pronghorn across the currently permeable vehicle barrier along the
border is extremely rare. Once the border wall is completed, no further
movement of pronghorn across the border will occur. The current
recovery plan for the Sonoran pronghorn does not anticipate movement of
pronghorn between the United States and Mexico populations. Rather, the
recovery plan anticipates recovery will be accomplished entirely within
the United States. Therefore, construction of the border wall is not
anticipated to impact survival or recovery of the Sonoran pronghorn.
______
Mr. Gallego. Thank you very much. We will start asking
questions. I will start by recognizing myself for 5 minutes.
Chairman Norris, can you take what Mr. Hodapp just said,
and do you have anything to respond to what he just said, why
there was no interest before?
Mr. Norris. Thank you, Chairman Gallego, members of the
Committee. It is kind of interesting to hear Mr. Hodapp make
those comments because the situation is different. We are not
talking about blasting. We are not talking about bulldozing. We
are not talking about desecration. We are not talking about
running through archaeological sites. We are not talking about
digging up graves in that situation that he was describing.
Mr. Gallego. So, is it safe to say what Mr. Hodapp was
describing is not at all the same as what we are describing
right now and, therefore, there wasn't probably as much
opposition because it wasn't as intrusive and insulting--is
that correct?
Mr. Norris. Exactly.
Mr. Gallego. Thank you. Chairman Norris, let's move on to
something else. In a recent meeting, you mentioned to me that
immediately following Chairman Grijalva's visit to the border
to bring attention to the Tribe's sacred sites, CBP actually
skipped several miles of wall construction to begin blasting on
Monument Hill. Do you think that this shows that CBP was aware
of the harm and controversy blasting Monument Hill would cause
and didn't want to wait to hear opposition? What is your
interpretation of why they suddenly just jumped a couple miles
to Monument Hill?
Mr. Norris. Well, I think because exactly that. I think
that they knew that the Nation and its people were going to be
seriously concerned about blasting, concerned about the
desecration, concerned about these things. And I think they
knew that, so they decided, well, let's go ahead and move
forward and start doing what we need to do because we know the
Nation is going to raise issue and opposition to that.
Mr. Gallego. Is it also true that CBP has widened roads
both on Monument Hill and Quitobaquito Springs without
notifying the Tribe at all, or did they notify you in a very
short manner?
Mr. Norris. Well, with regards to the blasting, I didn't
learn about the blasting until the day they started. I received
an e-mail from the tribal liaison that said, ``We are going to
start blasting today.'' In fact, that was the only notification
that I had. One of the things that I raised to that person is,
``Why are you giving me notice now when you didn't give me any
notice when you decided to bulldoze and grade through the
Quitobaquito Springs area?'' And I have not received any
response to that question.
Mr. Gallego. Ms. Krakoff--did I say that correctly?
Ms. Krakoff. It is Krakoff. Thanks for asking.
Mr. Gallego. Thank you. Ms. Krakoff, hearing what Chairman
Norris just described as the consultation that was given to
him, what would you describe that as if you were--in your terms
as a lawyer? What would you describe what was just discussed by
Chairman Norris?
Ms. Krakoff. Inadequate, perfunctory, and I wish I could
say that it was atypical, but often Federal requests for tribal
consultation are just trying to check the box that they did
something.
Mr. Gallego. Excellent. The Department of the Interior's
testimony today argues that the construction of a border wall
will actually improve protection of sacred sites. Given the
Tribe's extensive experience working on border security--this
is to you, Chairman Norris--and the destruction that has
already occurred, do you think this is a valid argument?
Mr. Norris. Chairman, would you repeat the question,
please?
Mr. Gallego. Sure, Chairman. Part of the argument that we
are going to hear today from both the Administration and
probably some of our fellow Members of Congress is that the
construction of the border wall will actually help protect
sacred sites. Given what you know, and given the history of the
Tohono O'odham Nation protecting the border, do you agree with
their argument--this is why they should be able to blast
through these monuments?
Mr. Norris. Well, I find it very hard to believe that the
effort will help protect sacred sites when, in fact, to the
contrary, that has not been what was going on now. There have
been desecrations. There has been blasting. There have been
artifacts. There have been remains that have been ruined and
forever lost. So, I have a tendency to disagree that this is
going to protect those because blasting them is not protection.
Mr. Gallego. Thank you.
Ms. O'Loughlin, in both our remarks, Chairman Norris and I
reference Arlington National Cemetery as a burial ground with
national historic and cultural as well as personal
significance. Your testimony points out the double standard
that exists for protection of tribal sacred burial grounds
versus other cemeteries, war memorials, and churches. Can you
expand on this?
Ms. O'Loughlin. Well, this is the result of historic
Federal policy and law that was meant to separate us from our
sacred places, that was meant to take away our religion so that
we would assimilate and more land would be opened up for
colonization and for the growth of the new Nation. And U.S. law
has never really correctly repaired this issue.
Today, we have corrective measures like NAGPRA, National
Historic Preservation Act, some Executive Orders and other Acts
that help bring tribes to the table before these decisions are
made. But, often, that is not the case, and that is not what we
have been finding during this Administration.
Mr. Gallego. Thank you. I yield the remaining time to
Ranking Member Gosar. Yield--that is true. I yield to
Representative Gosar.
Dr. Gosar. Thank you, Mr. Chairman. Now that we have heard
the testimony and moved to the question part of this hearing,
it is a good time for me to ask my colleagues. Do you actually
care about the environment, or is it just another political
prop? I know the answer. When convenient, it is a wonderful
political prop. As we saw, if you look at the--do we have that
up here? Yes. As we saw at this Committee 3 weeks ago with the
Democrat effort to ban mining in Minnesota, you love to protect
the environment here but don't hesitate to sacrifice the
environment of the Congo and the lives of Congolese children at
the altar of your protectionism.
This hearing today is another reckless example.
Uncontrolled illegal immigration is an overwhelmingly
destructive activity. You can see by what we are actually
showing pictures of that were just taken. It is an activity
that has deeply scarred the border regions from the San Diego
Wildlife Refuge and Organ Pipe National Monument to the Rio
Grande and Big Bend National Park.
Drug running, human trafficking, trash, feces, water
pollution, damaged springs and seeps, foot and illegal vehicle
transit, all of the destruction as a result of illegal
trafficking has left deep scars and environmental destruction
across the landscape. If the Federal Government were required
to consider the environmental impacts of this open borders
policy under the NEPA, the preferred alternative, there would
certainly be a border wall. There is no question that the deep
impact on natural resources, waters, and species by this
traffic throughout the landscape has a real impact. However, in
pursuit of a political open-borders agenda, you are happy to
ignore and minimize the environmental impact. You are also
willing to not only minimize but degrade the human impact of
the lack of border control. The Tucson sector of the border
continues to have some of the highest rates of death among
border crossers, accounting for 20 percent of all border deaths
in 2018.
But it isn't just deaths of random border crossers that you
ignore with an open-borders agenda. It is our hard-working
personnel as well. When you arrive at Organ Pipe Cactus
Monument, as stated earlier, you are greeted by the Kris Eggle
Visitor Center. Kristopher William Eggle was a law enforcement
park ranger with the National Park Service. Growing up, he was
an Eagle Scout, National Honor Society Student, the
valedictorian of his class, and was elected president of his
class at the Federal Law Enforcement Training Center.
Kris Eggle devoted his life to protecting our country and
our public lands. 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 cartel who fled into the
United States after committing a string of murders in Mexico.
He was just 28 years old. He died because we didn't have
control of our borders, and we have failed to protect our
people, which brings us to this reckless political hearing.
I get it. You don't want the wall. You don't want to work
with the Trump administration in building the wall. In fact,
you offer no alternatives in securing that border. Despite your
inaction, the wall is being built. President Trump is doing
what he promised to do and no one should be shocked about that
outcome.
Now the questions. Ms. Krakoff, I am wondering, do you
think illegal border crossers bathing, drinking, and defecating
in Quitobaquito Springs and other seeps and springs will have
an environmental impact on the resources and species at these
critically important desert habitats? Yes or no.
Ms. Krakoff. I think we would be able to assess the harms
of----
Dr. Gosar. Yes or no.
Ms. Krakoff [continuing]. The wall construction versus the
harms----
Dr. Gosar. It is my time. It is my time.
Ms. Krakoff [continuing]. Of the border crossing.
Dr. Gosar. Let me--it is my time.
Ms. Krakoff. If we actually did the environmental
analysis----
Dr. Gosar. It is my time.
Ms. Krakoff [continuing]. That NEPA requires----
Dr. Gosar. It is my time. Do you believe in climate change?
Ms. Krakoff. Yes.
Dr. Gosar. Does man have an impact on it?
Ms. Krakoff. Absolutely.
Dr. Gosar. So, I take it that you are yes on this one,
then. Do you think illegal border crossers hiding in the adobes
at Blankenship Ranch House or Gachado Line Camp, both
registered historic places, are causing environmental damage to
these historic protected places, and is the arson of the Bonita
Campline shack, which was a protected structure burned down by
illegal crossers, of a concern to you? Yes or no?
Ms. Krakoff. I don't know--you are assuming the facts ahead
of time. If all that were occurring, sure. That would be of
concern to me.
Dr. Gosar. This is what has actually happened. So, you
should be concerned about that if what I heard from your
testimony--now, do you think that the unauthorized vehicle
routes and illegal off-road vehicle travel are impacting the
border environment, including species, habitat, culture and
archaeological sites because CBP says that this sort of UVR
activity is questionable? I mean, you see it up here. That is
endangering the wildlife. Is it not?
Ms. Krakoff. Many things endanger the wildlife, and so does
the construction of the border wall.
Dr. Gosar. And illegal crossers don't take that into
consideration? They were fully apprised of the ESA--Endangered
Species Act--right? I think you brought that up.
Ms. Krakoff. Yes, well----
Dr. Gosar. So, they are fully aware that they are harming
species, right?
Ms. Krakoff. I don't believe they are complying with the
ESA. I don't believe there have been the kinds of
consultations--in fact, I know there have not--that would be
required under the ESA because the Secretary of Homeland
Security has waived application of the----
Dr. Gosar. Well, once again, I wasn't bringing that up.
Ms. Krakoff [continuing]. Endangered Species Act.
Dr. Gosar. What I was talking about is illegal crossings. I
think the facts speak for themselves.
Mr. Gallego. Thank you, Representative Gosar.
We now recognize Representative Deb Haaland.
Ms. Haaland. Thank you, Chairman. Thank you.
First, I just need to say this. Mr. Hodapp, you sat here
and misrepresented your alleged consultation with the Tohono
O'odham Tribe, and I take issue with that. And I just needed to
bring that up so it is on the record.
I want to also make sure that every single one of my
colleagues in this hearing room understands that this hearing
is about sacred sites of the Tohono O'odham Tribe and that is
all. That is what we are here to discuss, and that is what we
are here to defend.
So, my first question--actually, I have a statement first.
Thank you, Chairman, for having this hearing. As one of the
first Native women in Congress, I find it my duty to speak up
for Indian Country and the Administration's lack of respect for
the Federal trust responsibility we have to Native nations.
During the recent NCAI session, this was exemplified when the
Interior failed to answer basic questions from tribal leaders
and is further illustrated with the construction at the border
wall. When tribes do not have a seat at the table, Indigenous
history is lost.
In this case, the Tohono O'odham Nation has lost pieces of
its ancestors to bulldozers and explosions. This bears
repeating. The President threatens to destroy Iran's cultural
sites and, yes, that would be a tremendous loss to our world.
It is considered an international war crime when he states
this. But how is what is happening here on the Tohono O'odham
Nation any different?
This is also not the first time this Administration has
moved forward to destroy Indigenous sacred sites with no tribal
consultation. They recently opened up Bears Ears and Grand
Staircase-Escalante, ancestral homelands of the Pueblo people,
for drilling instead of protecting these Indigenous sacred
sites. This irreparably ruins over 1,000 years of Indigenous
culture and ceremonial sites. It is a complete failure of the
Federal Government's trust responsibility and lack of respect
for Native people in this country.
And in spite of how the Administration finagles their way
to get this done, they stand by the fact that they are saying
this is legal. It is wrong. It is sacrilegious. And it is not
who we are as Americans. As far as I am concerned, they can go
around and do everything legally. It is immoral. It is immoral,
and I am still trying to figure out how the President sleeps at
night.
Chairman Norris, your testimony discusses two cultural
sites that have been damaged by the border wall construction,
Quitobaquito Springs and Monument Hill. But these sites are not
on the reservation. Why are these sites important to you and
your people if they are not on your reservation?
Mr. Norris. Chairman Gallego, members of the Committee,
Congresswoman, thank you for that question. Regardless of
whether or not these sites are on or off the Tohono O'odham
Nation, we are on this reservation not because we wanted to be
on this reservation, but our ancestral lands extended well
beyond where our current reservation land is today.
So, in that, we have an obligation. We have a
responsibility. We have a vested interest in protecting and
securing the safety of our ancestors and the remains of our
ancestors and protecting these sacred sites regardless of
whether or not they are on our current reservation land. They
are still within the ancestral lands of the O'odham. And that
is why it is important to us.
Ms. Haaland. Thank you. How have tribal citizens responded
to the news of DHS bulldozing and blasting the Nation's sacred
sites in Organ Pipe?
Mr. Norris. It is hard. It is hard to see the blasting that
you showed on the video today because I know in my heart and
what our elders have told us and what we have learned that that
area is home to our ancestors. And blasting and doing what we
saw today has totally disturbed, totally, forever damaged our
people. Thank you.
Ms. Haaland. I yield, Chairman.
Mr. Gallego. Thank you, Representative Haaland. I now
recognize Representative Garcia.
Mr. Garcia. Thank you, Chairman Gallego and Ranking Member
Cook or Gosar. Thank you to the witnesses who are here today.
The first question that I want to ask is what kind of
consultation has there been with the tribes who have raised
objections to the blasting and the clearing away of the land to
build the wall. And I would like to direct that to Mr. Hodapp.
Mr. Hodapp. I am not directly involved as a CBP employee,
as I retired last March. But what I can tell you in general is
that CBP issued a letter in May 2019 soliciting input broadly
from all interested parties, including the Tribe. That door for
input was open for 3 months, and CBP is considering that input
as they implement and construct the barrier in that area.
Mr. Garcia. Do you consider that to be a formal engagement
with the tribes or casual conversations?
Mr. Hodapp. In my personal opinion, it is not formal
consultation as provided for under the statutes, but you have
to remember that the Administration has waived these statutes.
So, there is discussion, but it is not under the formal
procedures.
Mr. Garcia. So, you could pretty much do whatever you want
because of the waiver? Is that what you are saying?
Mr. Hodapp. I mean, the Congress has authorized the waiver
to apply to any law that the Secretary believes is required in
order to permit expeditious fence construction.
Mr. Garcia. So, you could do whatever you want, basically?
Mr. Hodapp. That is the authorization that Congress has
provided.
Mr. Garcia. Thank you. Chairman Norris, what would you
respond to the same question about what is referred to as this
consultation with the tribes that allegedly took place?
Mr. Norris. Thank you, Mr. Chairman, Members of Congress.
Thank you, Congressman, for that question. That is not
consultation. That is not government-to-government
consultation. A telephone call letting us know what is going on
or even a meeting that is called between the parties is not
consultation. It is not leader-to-leader. It is not with the
people that have the authority to make the decisions that are
going to impact us or may impact them.
So, these meetings that are being referred to, in our
opinion, have never been consultation. We have never been
consulted on a government-to-government level on this issue by
anyone, the Bureau of Indian Affairs, the Department of the
Interior, anybody. You may get some folks that are coming here
to testify and say that we do consultation. We have done many
consultations over the course of time. I don't doubt that. But
ask the question to them. How many of these consultations were
done pursuant to this particular wall construction activity and
the desecration that has been going on? And I guess they are
going to tell you none of them.
Mr. Garcia. Thank you very much. Mr. Chairman, I yield
back. I have some questions for the following panel as well.
Thank you.
Mr. Gallego. Thank you, Representative Garcia. We will move
to Representative Soto. As other Members of the Minority come
in, we will also be recognizing them. Thank you.
Mr. Soto. Thank you, Mr. Chairman. And Chairman Norris,
thank you for being here today. I could not imagine how painful
this all is for you and the Tohono O'odham Tribe. I know that
we will have major debates over border walls in Washington and
through the courts. But I think the key here today is that
these things can be still built respectfully and going through
the process and making sure we are not destroying people's
heritage in the process. And I think that is what this is
really about today. It is doing it in a respectful way as these
debates go on.
Chairman Norris, you had outlined a variety of Border
Patrol initiatives that the Tohono O'odham Nation has
jumpstarted over the past few decades. Often, these initiatives
require coordination with ICE special agents, Border Patrol
operatives, and the FBI. Can you elaborate on the working
relationship that the Nation has maintained with these non-
tribal entities?
Mr. Norris. Thank you for that question, Congressman. I sit
here and I share with you that the Tohono O'odham Nation's
leadership--I have 2 of our 22 Legislative Council members with
me today--has a long history of working with the Border Patrol.
Even at the opposition of our own people, our leadership has
worked with the Border Patrol.
The Tohono O'odham Nation understands and realizes the need
to protect the United States of America. We will do what is
necessary and short of building a wall, we will do what we can
to ensure the security of the United States of America. We
understand that, and we will continue that relationship.
Many times, decisions that are made in Washington, DC can
have a negative effect on the relationship that we spent many
years building with the local folks back at home. We have a
long history, but we have done that in good conscience. We have
done that giving all consideration to what the impacts are
going to be, not only to the United States of America but also
to the Tohono O'odham Nation itself. So, we will continue to
work on the relationship. We will continue to do what is
necessary short of building a wall. We will never agree to a
wall that is being built. We will never agree to what is being
built now and this desecration of our sacred sites.
We have developed the relationship that we will continue,
but it makes it difficult when decisions that are made in
Washington, DC are negatively impacting that relationship that
we spent a long time to build with the local folks----
Mr. Soto. Thank you, Mr. Chairman. I am also concerned
about the precedent set right now, the dangerous precedent that
could be set for other tribal sites throughout the Nation. You
reference in your testimony Section 102(c) of the Illegal
Immigration Reform and Immigrant Responsibility Act and the
waiver authority granted to DHS within it. Are there other
sacred sites or cultural resources of significance to the
Nation that are likely to be negatively impacted by the ongoing
and planned border wall construction?
Mr. Norris. In addition to Monument Hill, in addition to
Quitobaquito, further west of there is another area in the
Cabeza Prieta National Monument, an area commonly referred to
as Las Playas. Right in that area has been identified a
ceremonial ground that, in my estimation, is about a football
field in length and about half a football field in width. We
have history. We have our elders. We have archaeologists that
have identified that area as ceremonial grounds to the Hia-C'ed
O'odham people, our lineage with the Hia-C'ed O'odham.
And even just a little bit further down, another 4 or 5
miles from there, there is a definite burial ground, burial
site, within the current road of the proposed border wall. That
is a significant burial ground. There is no way around that. In
November, we had proposed a letter to the Department of
Homeland Security some alternatives in addressing the sacred
sites, some alternatives they may want to consider in working
with us to try to eliminate the desecration that is going to go
on if they continue to bulldoze. I got a response from that
letter. They basically ignored the recommendations that we were
making as alternatives.
Mr. Soto. Thanks. And my time has expired.
Mr. Gallego. Thank you, Representative Soto. We now
recognize Chairman Grijalva.
Mr. Grijalva. Chairman, let me reaffirm what our colleague,
Ms. Haaland, said. The necessary debate about the border wall
and my opposition to it on many levels is a debate that we have
been having and we will continue to have, and I think that is
important. But what we are talking about here today is a very
significant point, and she mentioned this, about sacred sites.
It is about trust responsibility. And it is about abuse of
power.
And I think that we have to keep that in focus, that the
Nation has, through its own pocketbooks of its people, provided
paramedic support for migrants that are out in the desert, has
provided additional law enforcement and response, and watched
their roads being destroyed because of the use by Border
Patrol, and from their own revenues, they have sustained that.
So, to even imply that this is something other than, I
think is a huge mistake. Chairman Norris, one of the issues
that you brought up and I thought was important is to talk a
little bit about how you see the relationship in terms of how
the resources that DHS has employed to assess the cultural
significance. One of the things that these waivers do and the
REAL ID does is that it is not just a question of expediting.
You just overlook things and with legal protection.
So, the cultural significance of the sites that we are
talking about plus others that have been identified in the
past, in your opinion, has DHS adequately surveyed Organ Pipe
Monument for tribal impacts? Have the surveys been completed
that reflect input from the Nation and the National Park
Service survey that identified a number of important
archaeological and cultural sites in the Tucson project area?
Was that study reflected, that you know of, in anything that
DHS has done?
Mr. Norris. Thank you, Congressman, for that question. Let
me just talk about the National Park Service's own
archaeological study of 11 miles of the border in the Organ
Pipe. In that study, it found that it is probable that
significant presently unrecorded surface level and buried
archaeological deposits, mainly the sacred site and cultural
patrimony about which the Nation is worried, persist across
where the wall is being built. That was the statement out of
that study.
In addition, the Park concluded that we must assume that
all such unrecorded deposits will be destroyed over the course
of the ensuing border wall construction. So, simply to say that
somebody such as Mr. Hodapp or anyone else at his level came
out and did surveys and looked at this area is not an in-depth
archaeological survey of that particular area.
Mr. Grijalva. OK. Thank you. Any time the questions are
raised about the wall and in this particular issue here that I
think is very much different, the response is always, ``Well,
you are for open borders. You are for murderers, thieves, drug
runners, people smugglers. You are condoning the death of a
ranger because you have questions about the wall.'' None of
that is true. None of that is true, and I think that, if I may,
Mr. Chairman, that this discussion has to focus on the
jurisdiction this Committee has in terms of Indian Country and
the protection of those laws that were put in place to try to
reaffirm an identity that there had been attempts to wipe out.
And I think this is an important issue. It is a precedent.
And the fact that there is no consultation, the fact that the
trust responsibility is being violated and the fundamental
question of sovereignty is being violated as well, I think,
requires this Committee to explore whatever possibilities are
available to us.
It is OK for this Administration to try to undo NEPA. It is
OK for this Administration to try to undo ESA. It is OK for a
major funder of this President's campaigns and inauguration to
get the contract to build a fence in Organ Pipe. That is
somehow permissible and it is not OK. I think there are things
that we need to look into in this Committee, and I appreciate
this hearing, Mr. Chairman, and I yield back.
Mr. Gallego. Thank you, Mr. Chairman. I want to thank the
first panel for answering our questions. The members of the
Committee may have some additional questions for the witnesses,
and we will ask you to respond to those in writing. I now
invite Panel 2 to take their places at the witness table.
As with the previous panel, oral statements are limited to
5 minutes, but your entire statement will be part of the
hearing record. When you began, the lights on the witness table
will turn green. After 4 minutes, the yellow light will come
on. Your time will have expired when the red light comes on. I
will ask you to please wrap up your statement. I will also
allow the entire panel to testify before we question the
witnesses.
Now I would like to introduce our distinguished witnesses
at this point. Our first witness is Dr. Anna Maria Ortiz, the
Director of Natural Resources and Environment at the U.S.
Government Accountability Office. Dr. Ortiz.
STATEMENT OF ANNA MARIA ORTIZ, DIRECTOR, NATURAL RESOURCES AND
ENVIRONMENT, U.S. GOVERNMENT ACCOUNTABILITY OFFICE, WASHINGTON,
DC
Dr. Ortiz. Good morning, or good afternoon. Thank you,
Chair Gallego, Ranking Member Gosar, Chair Grijalva, and
members of the Subcommittee. Thank you for having me here
today. During the expansion of the United States, the Federal
Government forcibly removed countless Native Americans from
their original homelands. Other tribes ceded lands and
resources to the Federal Government in treaties and agreements.
Recognizing that Indian tribes' interests and historic
sites and natural resources did not end with their relocation,
the United States later enacted several laws designed to
protect Indian cultural and natural resources, a goal
consistent with the Federal trust responsibility. Tribal
consultation requirements are an important element of these
laws. When triggered, tribal consultation provisions require
agencies to consult with tribes on activities and
infrastructure projects that risk affecting current or
ancestral lands and resources.
Tribal consultation is a critical mechanism for
demonstrating the United States' commitment to tribal
sovereignty and its respect for the government-to-government
relationship with tribes. More than 60 percent of the comments
GAO reviewed from 100 tribes highlighted potential impediments
to Federal tribal consultation. When tribes get notification
too late in a project, important decisions may already have
been made. When agencies fail to adequately weigh tribal input,
they can imperil cultural resources that might have been
preserved with a modest adjustment.
One tribe told us that an agency's failure to consult when
approving county road work resulted in desecration of a burial
mound, scattering their ancestors' remains and exposing them to
the elements. Poorly executed tribal consultation limits tribal
governments' opportunities for input, sows mistrust and can
expose agencies to legal challenges later on.
Thankfully, several agencies have taken steps to improve
the likelihood of successful tribal consultation. For example,
HUD and two other agencies have developed systems to help
identify tribes that should be consulted on projects because
they have current or ancestral interests in an area or
resource. EPA's policy requiring formal written communication
from a senior agency official to an affected tribe following a
consultation has facilitated positive outcomes despite
sometimes challenging circumstances. One tribe told us that
they considered its consultation with the EPA a success even
when the tribe disagreed with the agency's final decision
because the letter helped it to understand the rationale behind
the decision. This example underscores a critical takeaway from
GAO's research that effective tribal consultation does not
always mean that everyone agrees on the outcome. It does mean
that agencies do their best to obtain tribal input in a timely
fashion, weigh that input appropriately, and respect the
government-to-government relationship with tribes, or, in the
words of one tribe we spoke with, ``striving for the intent of
consultation requirements rather than going through the motions
of compliance.''
GAO has made recommendations to 17 agencies on how to
improve their approaches to tribal consultation. These
improvements will help ensure that the Federal Government
respects tribal sovereignty and works in partnership with
tribal governments to minimize adverse consequences of
infrastructure projects on current and former tribal lands and
resources. That tribes no longer maintain sole claim to
specific religious or historic sites or that government
infrastructure requires construction at a specific location
does not render these tribal lands, artifacts, and sites any
less sacred. This concludes my oral statement. I welcome your
questions.
[The prepared statement of Dr. Ortiz follows:]
Prepared Statement of Anna Maria Ortiz, Director, Natural Resources and
Environment, U.S. Government Accountability Office
NATIVE AMERICAN ISSUES
examples of certain federal requirements that apply to cultural
resources and factors that impact tribal consultation
Why GAO Did This Study
Federal agencies are required in certain circumstances to consult
with tribes on infrastructure projects and other activities--such as
permitting natural gas pipelines--that may affect tribal natural and
cultural resources. According to the National Congress of American
Indians, Federal consultation with tribes can help to minimize
potential negative impacts of Federal activities on tribes'
culturalresources.
The Secretary of Homeland Security has waived Federal cultural
resource laws that generally require Federal agencies to consult with
federally recognized tribes to ensure expeditious construction of
barriers along the southern U.S. border.
This testimony discusses examples of (1) federal laws and
regulations that apply to Native American cultural resources and (2)
factors that impact the effectiveness of federal agencies' tribal
consultation efforts. It is based on reports GAO issued from July 2018
through November 2019 related to Federal laws that apply to Native
American cultural resources, tribal consultation for infrastructure
projects, and border security. It also includes additional information
about the consultation requirements in these cultural resource laws and
regulations.
What GAO Recommends
GAO recommended in March 2019 that 17 Federal agencies take steps
to improve their tribal consultationpractices. The agencies generally
agreed and one agency has implemented the recommendation.
What GAO Found
Examples of Federal laws and regulations that apply to Native
American cultural resources include:
The Native American Graves Protection and Repatriation Act
(NAGPRA). In August 2018, GAO reported that NAGPRA
prohibits the intentional removal from, or excavation of,
Native American cultural items from Federal or tribal lands
unless a permit has been issued and other requirements are
met. NAGPRA and its implementing regulations contain
provisions to address both the intentional excavation and
removal of Native American cultural items as well as their
inadvertent discovery on Federal and tribal lands.
Section 106 of the National Historic Preservation Act
(NHPA). In March 2019, GAO reported that section 106 of the
NHPA and its implementing regulations require Federal
agencies to consult with Indian tribes when agency
``undertakings'' may affect historic properties--including
those to which tribes attach religious or cultural
significance--prior to the approval of the expenditure of
Federal funds or issuance of any licenses.
In March 2019, GAO reported that tribes and selected Federal
agencies identified a number of factors that impact the effectiveness
of consultation on infrastructure projects, based on GAO's review of
the comments on consultation submitted by 100 tribes to Federal
agencies in 2016 and GAO's interviews with officials from 57 tribes and
21 Federal agencies. Examples of these factors include:
Agency consideration of tribal input. Sixty-two percent of
the 100 tribes that provided comments to Federal agencies
in 2016 identified concerns that agencies often do not
adequately consider the tribal input they collect during
consultation when making decisions about proposed
infrastructure projects.
Maintaining tribal contact information. Officials from 67
percent of the 21 Federal agencies in GAO's review cited
difficulties obtaining and maintaining accurate contact
information for tribes, which is needed to notify tribes of
consultation opportunities.
GAO also found that the 21 agencies in GAO's review had taken some
steps to facilitate tribal consultation. For example:
Eighteen agencies had developed systems to help notify
tribes of consultation opportunities, including contact
information for tribal leaders or other tribal officials.
Five agencies' tribal consultation policies specify that
agencies are to communicate with tribes on how tribal input
was considered.
*****
Chairman Gallego, Ranking Member Cook, and Members of the
Subcommittee:
Thank you for the opportunity to discuss examples from our prior
work regarding Federal laws and regulations that apply to Native
American cultural resources and factors that impact the effectiveness
of Federal agencies' tribal consultation efforts for infrastructure
projects. Federal cultural resource laws include the Native American
Graves Protection and Repatriation Act (NAGPRA), the Archeological
Resources Protection Act of 1979 (ARPA), and section 106 of the
National Historic Preservation Act (NHPA). These acts and their
implementing regulations cover different cultural resources, including
Native American cultural resources, but all require Federal agencies to
consult with federally recognized Indian tribes in certain
circumstances. According to the National Congress of American Indians,
Federal consultation with tribes can help to minimize potential
negative impacts of Federal infrastructure projects on tribes' natural
resources and cultural resources, which may include cultural items
protected by NAGPRA and archaeological resources subject to ARPA.\1\
Federal agencies are to consult with tribes on many infrastructure
projects and other Federal activities.\2\ For example, infrastructure
projects, such as constructing pipelines, may involve various Federal
activities that trigger statutory and regulatory tribal consultation
requirements.
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\1\ See National Congress of American Indians, NCAI Comments on
Tribal Trust Compliance and Federal Infrastructure Decision-Making
(Nov. 30, 2016). The National Congress of American Indians is a non-
profit organization that advocates for tribal governments and
communities.
\2\ For the purposes of this testimony, we define infrastructure to
include any ground-disturbing activities. For example, infrastructure
may include surface transportation such as highway or rail
infrastructure, energy development such as wind turbine projects, and
facilities construction such as visitor centers in national parks.
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As Congress found in the Indian Trust Asset Reform Act, ``through
treaties, statutes, and historical relations with Indian tribes, the
United States has undertaken a unique trust responsibility to protect
and support Indian tribes and Indians.'' \3\ The act also notes that
the historic Federal-tribal relations and understandings have benefited
the people of the United States for centuries and established
``enduring and enforceable [f]ederal obligations to which the national
honor has been committed.'' \4\ We have previously reported that
agencies can improve the efficiency of Federal programs that serve
tribes and can take additional actions to improve tribal consultation
for infrastructure projects.\5\ Such improvements would be consistent
with the expressed view of Congress in the act as to the Federal
Government's trust responsibilities and would strengthen the
performance and accountability of the Federal Government.
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\3\ Pub. L. No. 114-178, Sec. 101(3) (2016) (codified at 25 U.S.C.
Sec. 5601(3)). See also U.S. Commission on Civil Rights, Broken
Promises: Continuing Federal Funding Shortfall for Native Americans
(Washington, DC: December 2018).
\4\ Pub. L. No. 114-178, Sec. 101(5) (2016) (codified at 25 U.S.C.
Sec. 5601(5)).
\5\ GAO, High-Risk Series: Progress on Many High-Risk Areas, While
Substantial Efforts Needed on Others, GAO-17-317 (Washington, DC: Feb.
15, 2017) and Tribal Consultation: Additional Federal Actions Needed
for Infrastructure Projects, GAO-19-22 (Washington, DC: Mar. 20, 2019).
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In January 2017, the President issued Executive Order 13767, which
directs the Secretary of Homeland Security to immediately plan, design,
and construct a wall or other physical barriers along the southwest
border.\6\ In response, U.S. Customs and Border Protection (CBP)
initiated the Border Wall System Program to plan and deploy new
barriers and other assets.\7\ Section 102 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, as amended, authorizes
the Secretary of Homeland Security to waive all legal requirements as
determined to be necessary, in the Secretary's sole discretion, to
ensure expeditious construction of barriers and roads under section
102.\8\ The Secretary of Homeland Security has used this statutory
authority to waive the three cultural resource laws identified above
and their implementing regulations as well as certain other legal
requirements. We have previously reported on the progress the
Department of Homeland Security has made and challenges it has faced
implementing its border security efforts.\9\
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\6\ Border Security and Immigration Enforcement Improvements, Exec.
Order No. 13767, Sec. 4, 82 Fed. Reg. 8793, 8794 (Jan. 30, 2017)
(issued Jan. 25). Executive Order 13767 defines ``wall'' as a
``contiguous, physical wall or other similarly secure, contiguous, and
impassable physical barrier.'' See id. Sec. 3(e), 82 Fed. Reg. at 8794.
\7\ Within the Department of Homeland Security, CBP's U.S. Border
Patrol is the Federal agency responsible for securing U.S. borders
between ports of entry. See 6 U.S.C. Sec. 211(a) (establishing CBP
within the department), (c) (enumerating CBP's duties), (e)
(establishing and listing duties of U.S. Border Patrol within CBP).
Ports of entry are officially designated sea, air, or land border
facilities that provide for the controlled entry into or departure from
the United States.
\8\ Pub. L. No. 104-208, div. C, Sec. 102(c), 110 Stat. at 3009-
555, as amended by the REAL ID Act of 2005, Pub. L. No. 109-13, div. B,
tit. I, Sec. 102, 119 Stat. 231, 306 (2005).
\9\ GAO, Border Security: Assessment of the Department of Homeland
Security's Border Security Improvement Plan, GAO-19-538R (Washington,
DC: July 16, 2019); Southwest Border Security: CBP is Evaluating
Designs and Locations for Border Barriers but Is Proceeding Without Key
Information, GAO-18-614 (Washington, DC: July 30, 2018); and Southwest
Border Security: Additional Actions Needed to Better Assess Fencing's
Contributions to Operations and Provide Guidance for Identifying
Capability Gaps, GAO-17-331 (Washington, DC: Feb. 16, 2017).
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My statement today will focus on examples of (1) Federal laws and
regulations that apply to Native American cultural resources and (2)
factors that impact the effectiveness of Federal agencies' tribal
consultation efforts. My statement is based on work we issued from July
2018 through November 2019 related to Federal laws that apply to Native
American cultural resources, tribal consultation for infrastructure
projects, and border security.\10\ It also includes additional
information about the consultation requirements in these laws and
regulations. To conduct our previously issued work, we reviewed
relevant Federal laws, regulations, and policies; reviewed agency
documentation; reviewed oral and written comments submitted by tribes
to several Federal agencies; and interviewed tribal, Federal, and
industry officials. To identify examples of factors that impact the
effectiveness of Federal agencies' consultation efforts for this
testimony, we considered those factors that more than 60 percent of 100
tribes identified as hindering effective tribal consultation for tribes
in our March 2019 report; \11\ we also considered those factors that
more than 60 percent of 21 Federal agencies identified as concerns in
our March 2019 report.\12\ More detailed information on our objectives,
scope, and methodology for that work can be found in the corresponding
issued reports.
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\10\ GAO, Tribal Programs: Resource Constraints and Management
Weaknesses Can Limit Federal Program Delivery to Tribes, GAO-20-270T
(Washington, DC: Nov. 19, 2019); GAO-19-22; Native American Cultural
Property: Additional Agency Actions Needed to Assist Tribes with
Repatriating Items from Overseas Auctions, GAO-18-537 (Washington, DC:
Aug. 6, 2018); and GAO-18-614.
\11\ GAO-19-22. We analyzed the transcripts of oral comments as
well as written comments that 100 tribes provided to the Departments of
the Interior, the Army, and Justice from October through December 2016
during meetings, in letters submitted to the agencies, or both. The
agencies collected these comments as part of developing an interagency
report on barriers to and improvements needed for consultation on
infrastructure projects, released in January 2017.
\12\ GAO-19-22. We interviewed officials with 21 Federal agencies,
which we selected because they are, in general, members of the Federal
Permitting Improvement Steering Council and they consult with tribes on
infrastructure projects. The 21 selected agencies are: the Department
of Agriculture's Forest Service and Rural Development; Department of
Commerce's National Oceanic and Atmospheric Administration; Department
of Defense's Army Corps of Engineers; Department of Energy;
Environmental Protection Agency; Federal Communications Commission;
Federal Energy Regulatory Commission; Department of Homeland Security's
Coast Guard and Federal Emergency Management Agency; Department of
Housing and Urban Development; Department of the Interior's Bureau of
Land Management, Bureau of Ocean Energy Management, Bureau of
Reclamation, Fish and Wildlife Service, and National Park Service;
Nuclear Regulatory Commission; and Department of Transportation's
Federal Aviation Administration, Federal Highway Administration,
Federal Railroad Administration, and Federal Transit Administration.
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We conducted the work on which this statement is based 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.
Background
Federal agencies have varying roles in planning, approving, and
implementing infrastructure projects, depending on their missions and
authorities.\13\ Some Federal agencies help fund or construct
infrastructure projects, and others grant permits or licenses for
activities on private or Federal lands.\14\ Agencies that manage
Federal lands, such as the Bureau of Land Management, may construct
infrastructure on lands they manage and must also approve projects on
those lands.
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\13\ Not all infrastructure projects have Federal involvement, and
the extent of Federal involvement depends on the nature and type of
project, as well as ownership of the land.
\14\ For example, the Federal Highway Administration funds highway
and bridge projects, and the Federal Emergency Management Agency helps
fund recovery projects for infrastructure damaged by disasters.
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The circumstances under which Federal agencies may need to consult
with tribes will vary based on the agencies' responsibilities for
infrastructure projects as well as an infrastructure project's
potential effects on tribes' land, treaty rights, or other resources or
interests.
Federal agencies are generally responsible for identifying relevant
tribes that may be affected by proposed projects, notifying the tribes
about the opportunity to consult, and then initiating consultation, as
needed. One or more tribes located near or far from the proposed
project site may have treaty rights within lands ceded in treaties or
interests in lands with cultural or religious significance outside of
lands ceded in treaties.\15\
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\15\ Treaties between the U.S. government and Indian tribes are the
supreme law of the land. Treaties often described the boundaries of the
tribe's land ceded to the Federal Government and the boundaries of the
lands reserved for habitation by the tribe. Treaties also often
discussed the tribe's rights reserved by the treaty, such as the right
to hunt, fish, and gather on specified lands they ceded to the Federal
Government. As a result of these treaties and other Federal actions,
many tribes have ancestral lands they ceded to the Federal Government
distant from where they are located today. These ancestral lands may
include sites that have religious and cultural significance for the
tribe.
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Additionally, the Federal Permitting Improvement Steering Council--
which was created to make the process for Federal approval for certain
(large) infrastructure projects more efficient--has issued two annual
reports that identified best practices for, among other things,
consulting with tribes.\16\ These best practices include: training
staff on trust and treaty rights; providing clear information on
proposals in a consistent and timely manner; holding consultations on
lands convenient to tribes when possible; compensating tribes for
consultant-like advice; and working to build strong, ongoing dialogue
between tribal authorities and agency decision makers, among others. In
2017, Executive Order 13807 directed agencies to implement the
techniques and strategies identified by the steering council as best
practices, as appropriate.\17\
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\16\ Federal Permitting Improvement Steering Council, Recommended
Best Practices for Environmental Reviews and Authorizations for
Infrastructure Projects (Washington, DC: Jan. 18, 2017); and
Recommended Best Practices for Environmental Reviews and Authorizations
for Infrastructure Projects for Fiscal Year 2018 (Washington, DC:
December 2017). In our March 2019 report, we identified the members of
the steering council as: the Advisory Council on Historic Preservation,
Council on Environmental Quality, Department of Agriculture, Department
of the Army, Department of Commerce, Department of Defense, Department
of Energy, Department of Homeland Security, Department of Housing and
Urban Development, Department of the Interior, Department of
Transportation, Environmental Protection Agency, Federal Energy
Regulatory Commission, General Services Administration, Nuclear
Regulatory Commission, and Office of Management and Budget.
\17\ Exec. Order 13807, Establishing Discipline and Accountability
in the Environmental Review and Permitting Process for Infrastructure
Projects, Sec. 4(b)(iii), 82 Fed. Reg. 40463, 40465 (Aug. 24, 2017).
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For purposes of this testimony, Native American cultural resources
means Native American cultural items as defined by NAGPRA,\18\
archaeological resources that are remains of past activities by Native
Americans,\19\ and historic properties to which Indian tribes attach
cultural or religious significance.\20\
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\18\ NAGPRA defines Native American cultural items to mean human
remains, funerary objects, sacred objects, and objects of cultural
patrimony. 25 U.S.C. Sec. 3001(3).
\19\ Archaeological resources as defined by ARPA and its
implementing regulations are any material remains of past human life or
activities which are at least 100 years old and capable of providing
scientific or humanistic understandings of past human behavior,
cultural adaptation, and related topics through the application of
scientific or scholarly techniques such as controlled observation,
contextual measurement, controlled collection, analysis, interpretation
and explanation. 16 U.S.C. Sec. 470bb(1); 43 C.F.R. Sec. 7.3(a).
\20\ Historic properties are prehistoric or historic districts,
sites, buildings, structures, or objects included in, or eligible for
inclusion in, the National Register of Historic Places maintained by
the Secretary of the Interior. 36 C.F.R. Sec. 800.16(l)(1).
Examples of Federal Laws and Regulations That Apply to Native American
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Cultural Resources
ARPA and NAGPRA
ARPA, NAGPRA, and section 106 of the NHPA are examples of Federal
laws that apply to Native American cultural resources. These laws and
their implementing regulations contain many different provisions
applicable to Native American cultural resources, including
requirements for Federal agencies to consult with Indian tribes in
certain circumstances.
ARPA and NAGPRA, among other things, prohibit trafficking of
certain archaeological resources and Native American cultural items,
respectively. In August 2018, we reported on Federal laws that address
the export, theft, and trafficking of Native American cultural items
and any challenges in proving violations of these laws.\21\ That report
included a discussion of ARPA and NAGPRA.
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\21\ GAO-18-537.
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In addition, we reported in August 2018 that ARPA and NAGPRA
contain provisions prohibiting the removal of archaeological resources
and Native American cultural items from certain lands unless certain
conditions are met, including consultation with Indian tribes.\22\
Specifically, ARPA prohibits, among other things, the excavation or
removal of archaeological resources from public \23\ or Indian \24\
lands without a permit from the Federal agency with management
authority over the land.\25\ If the Federal agency determines that
issuance of such a permit may result in harm to, or destruction of, any
religious or cultural site, the agency must notify any Indian tribe
which may consider the site as having religious or cultural importance
and meet, upon request, with tribal officials to discuss their
interests.\26\
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\22\ GAO-18-537.
\23\ Public lands are lands owned and administered by the United
States as part of the national park system, national wildlife refuge
system or national forest system and all other lands the fee title to
which is held by the United States except lands on the Outer
Continental Shelf and lands under the jurisdiction of the Smithsonian
Institution. 16 U.S.C. Sec. 470bb(3).
\24\ Indian lands are lands of Indian tribes or Indians, which are
either held in trust by the United States or subject to a restriction
against alienation imposed by the United States, except for any
subsurface interests in lands not owned or controlled by an Indian
tribe or Indian. 16 U.S.C. Sec. 470bb(4).
\25\ The regulations implementing ARPA specify that the Department
of the Interior is the agency with management authority for Indian
lands. 43 C.F.R. Sec. 7.3(c)(2). ARPA does not require Indian tribes
and their members to have a Federal permit for excavation or removal of
any archaeological resource on Indian lands of such tribe unless the
tribe does not have a law regulating the excavation or removal of
archaeological resources. 16 U.S.C. Sec. 470cc(g)(2).
\26\ If the Federal agency determines that a permit must be issued
immediately because of an immediate threat of loss or destruction of an
archaeological resource, the Federal agency must notify the appropriate
tribe. 43 C.F.R. Sec. 7.7(a)(4).
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NAGPRA prohibits the intentional removal from, or excavation of,
Native American cultural items from Federal \27\ or tribal \28\ lands
unless an ARPA permit has been issued and other requirements are met.
Specifically, regulations implementing NAGPRA require Federal agency
officials to take reasonable steps to determine whether a planned
activity on Federal lands may result in the excavation of human remains
or other cultural items. Officials are also required to consult with
certain tribes, including any tribe on whose aboriginal lands the
planned activity will occur, about the planned activity. After
consultation, the Federal agency official must complete and follow a
written plan of action that includes, among other things, the planned
treatment, care, and disposition of human remains and other cultural
items recovered.\29\
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\27\ Under NAGPRA, Federal land is any land other than tribal lands
which are controlled or owned by the United States, including lands
selected by but not yet conveyed to Alaska Native Corporations and
groups organized pursuant to the Alaska Native Claims Settlement Act of
1971. 25 U.S.C. Sec. 3001(5).
\28\ Tribal land is all lands within the exterior boundaries of any
Indian reservation, all dependent Indian communities, and any lands
administered for the benefit of Native Hawaiians pursuant to the
Hawaiian Homes Commission Act. 25 U.S.C. Sec. 3001(15).
\29\ NAGPRA specifies who has ownership or control of Native
American cultural items excavated from Federal or tribal lands after
NAGPRA's enactment on November 16, 1990. 25 U.S.C. Sec. 3002(a).
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NAGPRA and its implementing regulations also include provisions
regarding inadvertent discovery of Native American cultural items on
Federal and tribal lands. Specifically, the person making the discovery
must notify the responsible Federal agency or tribal official, stop any
activity occurring in the area of the discovery, and make a reasonable
effort to protect the human remains or other cultural item discovered.
The NAGPRA regulations specify procedures for the agency and tribal
officials to take after receiving a notification and when the activity
that resulted in the inadvertent discovery can resume.
Section 106 of the NHPA
In March 2019, we reported that under section 106 of the NHPA and
its implementing regulations, Federal agencies are required to consult
with Indian tribes when agency ``undertakings'' may affect historic
properties--including those to which tribes attach religious or
cultural significance--prior to the approval of the expenditure of
Federal funds or issuance of any licenses.\30\ The implementing
regulations require agencies to consult with Indian tribes for
undertakings that occur on or affect historic properties on tribal
lands or may affect historic properties to which Indian tribes attach
religious or cultural significance, regardless of where the historic
properties are located.\31\ In addition, these regulations establish
the following four-step review process for Federal agencies, with
tribal consultation required for each step: (1) initiating the section
106 process, (2) identifying historic properties, (3) assessing adverse
effects, and (4) resolving adverse effects.\32\
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\30\ An undertaking is a project, activity, or program that is
funded in whole or in part by a Federal agency and under the agency's
direct or indirect jurisdiction, including those carried out by or on
behalf of a Federal agency; those carried out with Federal financial
assistance; and those requiring a Federal permit, license, or approval.
\31\ Regulations implementing section 106 of the NHPA define
consultation as the ``process of seeking, discussing, and considering
the views of other participants, and, where feasible, seeking
agreement.''
\32\ For more information, see Advisory Council on Historic
Preservation, Consultation with Indian Tribes in the Section 106 Review
Process: A Handbook (Washington, DC: December 2012).
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Examples of Factors Tribes and Selected Agencies Identified That Impact
the Effectiveness of Federal Agencies' Consultation Efforts
As we found in March 2019, tribes and selected Federal agencies
identified a number of factors that hinder effective consultation on
infrastructure projects, based on our review of the comments submitted
by 100 tribes to Federal agencies in 2016 on tribal consultation and
our interviews with officials from 57 tribes and 21 Federal
agencies.\33\
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\33\ See GAO-19-22 for additional information.
Tribes identified a variety of factors that hinder effective
consultation. For the purposes of this testimony, we are highlighting
those factors that more than 60 percent of the 100 tribes identified as
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concerns. For example:
Agencies' timing of consultation. Sixty-seven percent of
tribes that provided comments to Federal agencies in 2016
identified concerns with agencies initiating consultation
late in project development stages; according to one tribal
official we interviewed, late initiation of consultation
limits opportunities for tribes to identify tribal
resources near proposed project sites and influence project
design.
Agency consideration of tribal input. Agencies often do
not adequately consider the tribal input they collect
during tribal consultation when making decisions about
proposed infrastructure projects, according to 62 percent
of tribes that provided comments to Federal agencies in
2016. Tribes' comments included perceptions that agencies
consult to ``check a box'' for procedural requirements
rather than to inform agency decisions.
Agency respect for tribal sovereignty or the government-
to-government relationship. Other concerns were related to
agencies' level of respect for (1) tribal sovereignty or
(2) the government-to-government relationship between the
United States and federally recognized tribes, according to
73 percent of tribes that provided comments to Federal
agencies in 2016. Comments included concerns that some
agency practices are inconsistent with this relationship.
For example, tribes cited agencies limiting consultation to
tribal participation in general public meetings and sending
staff without decision-making authority to represent the
U.S. government in consultation meetings.
Agency accountability. Sixty-one percent of tribes that
provided comments to Federal agencies in 2016 raised
concerns related to the extent of agencies' accountability
for tribal consultation, stating that some agencies or
officials are not held accountable for consulting
ineffectively or for not consulting with relevant tribes.
For example, comments included concerns that tribes may not
have appeal options short of litigation when they believe
that Federal officials did not adhere to consultation
requirements.
In addition, officials from 21 Federal agencies included in our
March 2019 report identified factors that they had experienced that
limit effective consultation for infrastructure projects.\34\ For the
purposes of this testimony, we are highlighting those factors that more
than 60 percent of the 21 agencies identified as concerns. For example:
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\34\ The 21 agencies include 3 independent regulatory agencies, 3
departments, and 15 component agencies that are offices or bureaus
within other departments. We selected these agencies because they or
their departments (1) are, in general, members of the Federal
Permitting Improvement Steering Council and (2) consult with tribes on
infrastructure projects. See GAO-19-22 for more information.
Maintaining tribal contact information. Officials from 14
of 21 agencies (67 percent) cited difficulties obtaining
and maintaining accurate contact information for tribes,
which is needed to notify tribes of consultation
opportunities. For example, ongoing changes or turnover in
tribal leadership make it difficult to maintain updated
tribal information, according to some agency officials we
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interviewed.
Agency resources to support consultation. Officials from
13 of 21 agencies (62 percent) cited constraints on agency
staff, financial resources, or both to support
consultation. Officials from these agencies said that they
have limited funding to support consultation activities,
such as funding for their staff to travel to in-person
consultation meetings for infrastructure projects.
Agency workload. Officials from 13 of 21 agencies (62
percent) identified a demanding workload for consultation
as a constraint, because of large numbers of tribes
involved in consultation for a single project, high volumes
of consultations, or lengthy consultations, among other
reasons. Officials from some of these agencies said that it
may be difficult to stay on project schedules when there
are multiple tribes to consult with or multiple agencies
involved.
In March 2019, we also found that the 21 agencies in our review had
taken some steps to facilitate tribal consultation, but the extent to
which these steps had been taken varied by agency.\35\ For example:
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\35\ GAO-19-22.
Developing information systems to help contact affected
tribes. Eighteen agencies developed systems to help notify
tribes of consultation opportunities, which generally
include contact information for tribal leaders or other
tribal officials. Three of these agencies also included
information on tribes' geographic areas of interest. For
example, the Department of Housing and Urban Development
developed a system that aims to identify over 500 tribes'
geographic areas of interest and includes their contact
information. The Federal Permitting Improvement Steering
Council identified developing a central Federal database
for tribal points of contact as a best practice.\36\ We
recommended that the council should develop a plan to
implement such a database and consider how it will involve
tribes to help maintain the information, among other
actions.
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\36\ See Federal Permitting Improvement Steering Council,
Recommended Best Practices for Environmental Reviews and Authorizations
for Infrastructure Projects for Fiscal Year 2018 (Washington, DC:
December 2017).
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Developing policies to communicate how they considered
tribal input. Five agencies' tribal consultation policies
specify that agencies are to communicate with tribes on how
tribal input was considered. For example, the Environmental
Protection Agency's policy directs the most senior agency
official involved in a consultation to send a formal,
written communication to the tribe to explain how the
agency considered tribal input in its final decision.\37\
However, 16 agencies did not call for such communications
in their policies. We recommended that these agencies
update their tribal consultation policies to better
communicate how tribal input was considered in agency
decision making.\38\
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\37\ Representatives from one tribal organization we interviewed
said that in one example, the agency had approved a permit for an
injection well that the tribes had opposed during consultation, but
agency officials explained their rationale for the decision to the
affected tribes. As a result, tribal officials considered the
consultation a success, even though they disagreed with the final
decision.
\38\ GAO-19-22. The 16 agencies generally agreed with this
recommendation and one agency--the Federal Emergency Management
Agency--has implemented it.
Addressing capacity gaps through training. Most of the 21
selected Federal agencies have taken steps to facilitate
tribal consultation for infrastructure projects by
providing a range of training opportunities for staff
involved in tribal consultation to help build agency
officials' knowledge of tribal consultation topics. For
example, the U.S. Army Corps of Engineers coordinates an
immersive, 4-day training, hosted by a tribe on the tribe's
land or reservation for agency staff and other
participating agency officials, which focuses on cultural
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competency important for tribal consultation.
Utilizing various approaches to address resource
constraints. Some of the selected Federal agencies used
various approaches to help address resource constraints
agencies and tribes may face when consulting on
infrastructure projects, according to agency officials. For
example, the Bureau of Land Management's policies state
that the agency may use its appropriated funds and
designated accounts to reimburse tribal members' travel
expenses to attend meetings in connection with some
consultations.\39\ The Nuclear Regulatory Commission
collects fees from project applicants to cover agency costs
related to consultation.\40\
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\39\ Bureau of Land Management, Bureau of Land Management Manual
1780 Tribal Relations, (Washington, DC: Dec. 15, 2016) and BLM Handbook
1780-1: Improving and Sustaining Bureau of Land Management--Tribal
Relations (Washington, DC: Dec. 15, 2016).
\40\ The Nuclear Regulatory Commission is required by statute to
charge fees to anyone who receives a service or thing of value from the
commission to cover the commission's costs in providing that service or
thing. In addition, the commission is required to recover approximately
90 percent of its annual budget authority through fees on licensees and
certificate holders. 42 U.S.C. Sec. 2214.
In conclusion, effective consultation is a key tenet of the
government-to-government relationship the United States has with Indian
tribes, which is based on tribal sovereignty. Failure to consult, or to
consult effectively, sows mistrust; risks exposing the United States to
costly litigation; and may result in irrevocable damage to Native
American cultural resources. In our March 2019 report, we made
recommendations to 17 agencies to take steps to improve their tribal
consultation practices, which agencies generally agreed with and in one
case, have implemented.\41\ However, sustained congressional attention
to these issues and the relevant factors impacting the effectiveness of
agencies' consultation efforts may help to minimize the negative
impacts on tribes' cultural resources, when relevant Federal laws and
regulations apply.
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\41\ In March 2019, we made one matter for congressional
consideration and 22 specific recommendations to 17 of 21 agencies and
a Federal steering committee for permitting decisions on actions they
can take to improve tribal consultation. The 17 agencies to which we
made recommendations generally agreed with them, and one agency, the
Federal Emergency Management Agency, has implemented our
recommendation. GAO-19-22.
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Chairman Gallego, Ranking Member Cook, and members of the
Subcommittee, this completes my prepared statement. I would be pleased
to respond to any questions that you may have at this time.
______
Questions Submitted for the Record to Dr. Anna Maria Ortiz, Director,
Natural Resources and Environment, U.S. Government Accountability
Office
Questions Submitted by Representative Soto
Question 1. What are the impacts of not properly involving all
necessary stakeholders when making infrastructure project decisions?
Answer. GAO's prior work has identified several impacts from not
including all the necessary stakeholders in infrastructure project
decisions. Specifically, it:
Increases the likelihood of irrevocable harm to tribal
resources. Not involving tribal stakeholders may increase
the likelihood of irrevocable harm to irreplaceable tribal
cultural resources impacted by the project, according to
work performed for our March 2019 report on tribal
consultation.\1\ For example, one tribe told us that Fish
and Wildlife Service (FWS) officials did not consult the
tribe when approving county roadwork within a National
Wildlife refuge. A burial mound was unearthed and
desecrated during construction, but FWS would not allow
tribal members to access ancestors' remains for a month
because of a criminal investigation--leaving them exposed
to damage from the elements. Another tribe told us that a
Department of Energy (DOE) laboratory did not consult the
tribe for a tree-thinning project near important
archaeological sites on the tribe's ancestral lands. DOE
signed an agreement with the state to study the sites and
mitigate impacts, but they did not include the tribe.
Ultimately, the project partially destroyed five of the
archaeological sites.
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\1\ GAO, Tribal Consultation: Additional Federal Actions Needed for
Infrastructure Projects, GAO-19-22 (Washington, DC: Mar. 20, 2019).
Undermines the unique trust relationship between Federal
agencies and tribes. Effective consultation is a key tenet
of the government-to-government relationships the United
States has with tribes, based on tribal sovereignty.
Failure to consult, or to consult effectively, sows
mistrust in the United States government's relationships
that Congress recently affirmed have benefited the country
for centuries. For example, 73 percent of tribes that
provided comments to Federal agencies in 2016 on
consultation efforts identified concerns about agencies'
level of respect for (1) tribal sovereignty or (2) the
government-to-government relationship between the United
States and federally recognized tribes.\2\
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\2\ GAO, Native American Issues: Examples of Certain Federal
Requirements That Apply to Cultural Resources and Factors that Impact
Tribal Consultation, GAO-20-466T (Washington, DC: Feb. 26, 2020).
Can result in project delays or cancellation due to public
opposition and litigation. Public opposition and litigation
due to insufficient stakeholder involvement in decision
making can lengthen project time frames and even lead to
the cancellation of a project, according to our June 2012
report on state and Federal practices for highway
projects.\3\ For example, we reported that a lawsuit
against the Federal Highway Administration (FHWA) and the
U.S. Forest Service regarding their compliance with Federal
laws for a highway project in Alaska delayed the project
for at least 5 years. We also reported that the Elizabeth
Brady Road project in Orange County, North Carolina, was
canceled by FHWA due to public and local government
opposition to the project.\4\
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\3\ GAO, Highway Projects: Some Federal and State Practices to
Expedite Completion Show Promise, GAO-12-593 (Washington, DC: June 6,
2012).
\4\ In April 2014, we reported that although the number of National
Environmental Policy Act lawsuits is relatively low, one lawsuit can
affect numerous Federal decisions or actions in several states, having
a far-reaching impact. See GAO, National Environmental Policy Act:
Little Information Exists on NEPA Analyses, GAO-14-369 and GAO-14-370
(Washington, DC: April 15, 2014).
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Conversely, we and others have highlighted the benefits of
involving all necessary stakeholders in infrastructure project
decisions--whether it is required by law or not.\5\ This includes
tribal consultation when tribes' natural or cultural resources may be
negatively impacted. Effective stakeholder involvement can help
minimize damage to important tribal resources, limit infrastructure
project delays, reduce the risk of litigation, and demonstrate agency
respect for tribal sovereignty.
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\5\ For example, see GAO-19-22 and Federal Permitting Improvement
Steering Council, Recommended Best Practices for Environmental Reviews
and Authorizations for Infrastructure Projects for Fiscal Year 2018
(Washington, DC: December 2017).
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______
Mr. Gallego. Thank you.
Now I welcome Mr. Cameron for his testimony.
STATEMENT OF SCOTT CAMERON, PRINCIPAL DEPUTY ASSISTANT
SECRETARY FOR POLICY, MANAGEMENT, AND BUDGET, U.S. DEPARTMENT
OF THE INTERIOR, WASHINGTON, DC
Mr. Cameron. Chairman Gallego, Chairman Grijalva, Ranking
Member Gosar and members of the Subcommittee, thank you for the
opportunity to appear before you today to discuss the
Administration's coordination and construction of barriers to
address security and the humanitarian crisis at our Nation's
southern border.
My name is Scott Cameron. I am the Principal Deputy
Assistant Secretary for Policy, Management, and Budget at the
Department of the Interior. The southern border is a major
entry point for criminals, gang members, and illicit narcotics.
Along this border, cultural resources, wilderness areas,
wildlife refuges, plants and animals are adversely impacted by
land degradation and destruction from unauthorized vehicles,
trash, fires, contaminated water, and other activities related
to unlawful border activity.
The Department manages lands that cover 40 percent of the
southern border. The impacts of illegal activity along the
border are evident on all of these lands. At Organ Pipe
National Monument, for example, in the last 3 years alone,
National Park Service rangers have arrested 71 people,
apprehended more than 1,200 illegal aliens, and intercepted
7,500 pounds of marijuana. People die trying to cross the
border illegally here.
Since 2010, the remains have been found of almost 200
individuals suspected to have died attempting to cross the
border illegally. Unfortunately, as it was mentioned earlier,
at least one American, a National Park Service Ranger, Kris
Eggle, has been murdered by criminals crossing the border.
Without an effective barrier, there will be more deaths and
more movement of drugs that ruin lives at a distance.
Through implementation of President Trump's directives, the
Department has made it a priority to work closely with the
Department of Homeland Security, U.S. Customs and Border
Protection, and the Department of Defense, among other
agencies, to protect the wildlife, natural, and cultural
resources that occur on Federal lands along the border. Our
work with these agencies enhances the safety of those that
live, work, and recreate in the region.
At Organ Pipe, CBP has worked collaboratively with over 100
local stakeholders, including Federal, state, and local
government agencies and, of course, tribes. The National Park
Service worked collaboratively with CBP during preconstruction
planning processes to identify known archaeological sites and
has worked to protect them. NPS has also recommended, and CBP
has agreed, to having an archaeological monitor on site during
construction activities with the authority, incidentally, to
stop work as necessary to minimize loss of or damage to
archaeological sites. As an example of this collaboration, NPS,
in coordination with CBP, identified Quitobaquito Springs as a
significant resource area.
In order to protect the hydrology, wildlife, and cultural
resources of this area, NPS established an agreement with the
U.S. Geological Survey to provide real-time monitoring for
Quitobaquito, notably, taking into consideration the concerns
expressed by the tribes who requested a 5-mile buffer for any
wells from Quitobaquito.
CBP and the Army Corps of Engineers, therefore, placed the
closest wells for this project 8 miles east and 7 miles west,
with the latter being a pre-existing refurbished well to ensure
protection of the water resources at Quitobaquito. In early
October, NPS archaeologists discovered several bone fragments
during an archaeological survey close to Quitobaquito Springs
near the southwestern corner of the monument, but north of the
Roosevelt Reservation Area, so outside of the project area.
An osteologist viewed the fragments and determined one was
human but many were not. Discussions with the Tohono O'odham
Nation were initiated on October 24, 2019, regarding this
discovery. In November, NPS crews identified three additional
bone fragments during a data recovery project that consisted of
the surface collection of artifacts, the same area, this time,
within the Roosevelt Reservation and within the project area.
An osteologist determined that these bone fragments
consisted of animal remains and a rock. But during a subsequent
site visit to the same area, two additional remains were found
also within the reservation area. These remains could not be
identified by the field archaeologist, but both were later
confirmed as human.
Along the southern border, the Department will continue to
support interdepartmental partnerships. We will also continue
our engagement with affected tribes. We are trying to work
closely with the tribes. And when we find any artifacts or any
human remains, we engage in a process to return those to the
tribe. Thank you, Mr. Chairman, for letting me run over, and I
apologize for that.
[The prepared statement of Mr. Cameron follows:]
Prepared Statement of Scott J. Cameron, Principal Deputy Assistant
Secretary for Policy, Management and Budget, 1U.S. Department of the
Interior
Chairman Gallego, Ranking Member Cook, and members of the
Subcommittee, thank you for inviting me to appear before you today to
discuss the Administration's coordination in construction of barriers
to address security and the humanitarian crisis at our Nation's
southern border. My name is Scott J. Cameron and I am the Principal
Deputy Assistant Secretary for Policy, Management and Budget at the
Department of the Interior (Department).
introduction
The current situation at the southern border presents a security
and humanitarian crisis that threatens core national security interests
and constitutes a national emergency. The southern border is a major
entry point for criminals, gang members, and illicit narcotics. Along
this border, cultural resources, wilderness areas, wildlife refuges,
plants and animals are adversely impacted by land degradation and
destruction from trails, trash, fires and other activities related to
unlawful border crossings.
The Department manages lands that cover 40 percent of the southern
border, including national parks, wildlife refuges, historic sites,
public lands, and wilderness areas along with infrastructure including
water delivery structures. The impacts of this crisis are evident on
all of these lands. At Organ Pipe Cactus National Monument, for
example, in the last 3 years alone, National Park Service (NPS) rangers
have arrested 71 people, apprehended 1,231 illegal aliens, and
intercepted 7,563 pounds of marijuana. This with an average of only 10
full-time rangers. Since 2010, NPS staff have recovered the remains of
184 individuals.
The problem of large-scale unlawful migration through the southern
border is long-standing and has worsened in certain respects in recent
years. The impacts of this crisis are vast and must be aggressively
addressed with extraordinary measures.
Under President Trump's leadership, the Federal Government is not
only tackling the national security and humanitarian crisis, but also
addressing the environmental crisis impacting the character of the
lands and resources under the Federal Government's care. Construction
of border barriers will reduce or eliminate impacts from illegal entry
and will help us maintain the character of these lands and resources
under the Department's management that may otherwise be lost.
interagency cooperation
Secretary Bernhardt has ensured that the Department supports
stronger interagency and inter-departmental relationships to address
risk management efforts along the southern border. Through
implementation of President Trump's directives, the Department has made
it a priority to work closely with the Department of Homeland Security
(DHS), the U.S. Customs and Border Protection (CBP) and the Department
of Defense, among other agencies, to protect the wildlife, natural, and
cultural resources that occur on Federal lands along the border. Our
work with these agencies provides the necessary tools to enhance the
safety of those that live, work and recreate in this region. Through
this collaboration, the Department maximizes safety and stewardship,
benefiting all Americans in response to this crisis.
At the Department, interdisciplinary experts coordinate with DHS,
CBP, and Army Corps of Engineers to fully engage in the planning,
construction and maintenance phases for barrier and infrastructure
projects. For these projects, the Department also coordinates
interagency and interdisciplinary review and consensus-based
adjustments among Bureau of Land Management, Bureau of Reclamation, the
U.S. Fish and Wildlife Service (FWS), the NPS, the Bureau of Indian
Affairs, Tribes, and the U.S. International Boundary and Water
Commission as appropriate. Coordination efforts often include site
visits and strategic planning meetings to better clarify agency
priorities, address complex natural resource issues and efficiently
resolve challenges as they arise to the best of our abilities. On a
regular basis, challenges are addressed at the local level. This
includes recognizing and protecting cultural resources, protecting
water sources, maintaining wildlife corridors and wilderness areas, and
relocating sensitive plants that may be affected by construction
activities. Last year, the Department worked with DHS and CBP to
support barrier construction along 305 miles of the southern border
adjacent to 244 miles of public lands.
tribal consultation
In addition to the Department's responsibilities for ensuring
coordination and resource conservation, the Department conducts tribal
consultation for actions initiated by the Department's bureaus and
offices that have tribal implications.
In accordance with law and policy, all Federal agencies have
accountable consultation policies. The Department's Tribal Consultation
Policy is in the Departmental Manual (DM) at 512 DM 4, Policy on
Consultation with Indian Tribes, and 512 DM 5, Procedures for
Consultation with Indian Tribes. The DM provides that the Department
will consult with Tribes whenever its ``plans or actions have tribal
implications.''
The Department remains committed to meaningfully consulting with
Tribes on a government-to-government basis with regard to each plan and
action the Department takes that has Tribal implications. Since the
beginning of the Trump administration in January 2017, the Department
has hosted almost 90 formal consultation sessions on 17 topics. In the
spirit of ongoing dialogue, the Department has also held over 30
informal listening sessions with Tribes for their input on actions
taken by the Department.
dhs border wall construction at organ pipe cactus national monument
At Organ Pipe Cactus National Monument, CBP has worked
collaboratively with local stakeholders in the construction of the Pima
and Cochise Counties Border Infrastructure Project through the
Monument. Stakeholders include over 100 entities, including Federal,
state and local government agencies and tribes, among others.
NPS worked collaboratively with CBP on siting and wall alignments
to identify known archeological sites, ethnographic resources, and
areas with a high potential for intact cultural resources. NPS also
recommended using an archaeological monitor during construction
activities to minimize loss of or damage to archaeological sites.
The NPS also worked with CBP to identify sensitive plant species
within the construction zone to salvage plants, when practicable. FWS
similarly worked with CBP to discuss ways to avoid impacts to federally
listed species' habitat, migration movements, and ability to travel and
breed between Mexico and the United States (such as the endangered
jaguar).
As an example of this collaboration, NPS, in coordination with CBP,
identified Quitobaquito Springs as a significant resource area. In
order to protect the hydrology, wildlife, and cultural resources of
this area, NPS established an agreement with the United States
Geological Survey to provide real-time monitoring and alarm for the
Quitobaquito spring hydrological system. This allows the NPS to work
directly with DHS, CBP and the Army Corps of Engineers to address any
reduction in water output. Notably, taking into consideration the
concerns expressed by the Tribes, who requested a 5-mile buffer from
Quitobaquito Springs, CBP and the Army Corps of Engineers placed the
closest wells used for this project 8 miles east and 7 miles west (with
the latter being a pre-existing, refurbished well) of the Springs, to
ensure protection of this resource.
action taken by the department of the interior
In the process of working with CBP on completing the border
infrastructure process, the Department has honored its responsibility
to consult with affected tribes on Departmental actions, although
certain laws related to cultural resources have been waived for the
purposes of this project. When the NPS discovered several bone
fragments during archaeological surveys close to Quitobaquito Springs,
the NPS voluntarily engaged in processes drawn from NAGPRA to mitigate
or avoid potential impacts from the project.
In mid-September, NPS archaeologists discovered several bone
fragments during an archaeological survey close to Quitobaquito Springs
near the southwestern corner of the monument just north of the
Roosevelt Reservation and outside of the project area. An osteologist
reviewed the fragments on October 4, and determined one was human.
Consultation with the Tohono O'odham Nation was initiated on October
24, 2019, regarding this discovery.
In late November, NPS archaeological crews identified three
additional bone fragments during a data recovery project that consisted
of the surface collection of artifacts near the same area, this time
within the Roosevelt Reservation and within the project area. Based on
the archaeologist's assessment, two of the fragments were more
consistent with animal remains, while the third showed qualities of
being human. NPS informed the tribe that they will treat all three
remains as if they are human remains.
The NPS is currently working to repatriate the bone fragments to
the Tohono O'odham Nation following the process of the NAGPRA.
NPS and CBP met with the Tribe on December 11, 2019 at the Organ
Pipe Cactus National Monument. And most recently, on January 16, 2020,
Departmental employees including cultural staff of the Fish and
Wildlife Service, the Cabeza Prieta National Wildlife Refuge Manager,
the Superintendent of the Organ Pipe Cactus National Monument, Chief
Ranger, and Chief of Natural and Cultural Resources met with the Tohono
O'odham Nation Chairman and other representatives, along with
Congressman Raul Grijalva. This meeting of Departmental employees with
the Tribe resulted in a tour of the border area, and allowed the Tribe
to inform FWS and NPS employees about concerns regarding CBP actions to
secure the border.
conclusion
Along the southern border, the Department will continue to support
inter-departmental partnerships. These efforts provide for effective
collaboration and establish an avenue for the Department's land
management interests to be considered in ongoing organizational border
security efforts with DHS and the Army Corps of Engineers.
Chairman Gallego, Ranking Member Cook, and members of the
Subcommittee, thank you for the opportunity to testify. I am glad to
answer any questions you may have.
______
Questions Submitted for the Record to Mr. Scott Cameron, Principal
Deputy Assistant Secretary for Policy, Management, and Budget, U.S.
Department of the Interior
Mr. Cameron did not submit responses to the Committee by the
appropriate deadline for inclusion in the printed record.
Questions Submitted by Representative Grijalva
Question 1. In your testimony, you mention that the Department of
the Interior (DOI) has strong interagency and inter-department
relationships. For this situation, an inter-agency relationship would
include working with the Department of Homeland Security (DHS).
1a. Please provide the dates, and related documents, which
demonstrate that Secretary Bernhardt has met with the Acting Secretary
of Homeland Security, Chad Wolf, regarding the construction of the
border wall.
Question 2. During my tour of the border, the Tohono O'odham
Nation's archeologist attempted to interact with the contractor that
DHS had hired as its arborist. The tribal archeologist tried to ask the
arborist about DHS' criteria for the removal of saguaro cacti, as the
Nation has found DHS' internal policies for the removal and replanting
of saguaro cacti to be very inconsistent in the past.
2a. Rather than providing an answer, the DHS arborist said that he
could not talk to the Nation because he was under an order to not speak
with tribal officials or representatives. Are you aware of this ``gag
order'' that prevents DHS contractors from speaking to tribal
representatives?
2b. What is DOI's internal policy regarding the agency's
interactions with tribal officials and representatives?
2c. How, if at all, does DOI provide input in DHS' internal
policies about agency interactions with tribal officials and tribal
representatives?
Questions Submitted by Representative Gallego
Question 1. In December 2019, U.S. Customs and Border Protection
and the National Park Service conducted a meeting with the Tohono
O'odham Nation to discuss construction activities on the sites of
Monument Hill and Quitobaquito Springs.
1a. Please provide a record of communications and meetings between
U.S. Customs and Border Protection; and the National Park Service (NPS)
with the Tohono O'odham Nation regarding the border wall's construction
activities within Organ Pipe National Monument, including the
activities on Monument Hill and Quitobaquito Springs.
Questions Submitted by Representative Haaland
Question 1. You mention in your testimony that the Department will
strive to ``provide effective collaboration and establish an avenue for
the Department's land management interests to be considered in ongoing
border security efforts with DHS and the Army Corps of Engineers.''
1a. By land management interests, do you mean national monuments
and Federal lands held in trust for tribal nations?
1b. What are the legal implications of waiving pertinent Federal
laws to build on tribal trust land? In what ways would these
implications affect Indian Country in the future?
______
Mr. Gallego. Thank you to our witnesses for your testimony.
We will now be moving on to the questions portion of it, and I
will recognize myself for the first 5 minutes.
Mr. Cameron, the Department of the Interior, along with
other Federal agencies, is charged with upholding our trust
responsibility to Native American tribes. Mr. Cameron, what
does that responsibility entail?
Mr. Cameron. There are a number of statutes, Mr. Chairman,
as I know you are very much aware, that relate to the
relationship between the tribes and the Federal Government. It
fundamentally involves, I think, a communication, conversation,
the Federal Government trying to understand what the concerns
are of the tribes and the Federal Government figuring out, in
light of that information, what is an appropriate course of
action.
Mr. Gallego. Mr. Cameron, to be more specific, is it the
position of the Department of the Interior that protecting
tribal sacred sites and cultural and historical artifacts is
part of that responsibility, both on tribal and non-tribal
land?
Mr. Cameron. Yes, sir. As a general principal, I think that
is true. I think it is less clear in terms of off tribal lands
than it may be in terms of on Federal lands or certainly on an
Indian reservation. But as a general principle, I think the
Federal Government is responsible for working with the tribes
to be concerned about their cultural heritage and helping them
conserve that.
Mr. Gallego. OK. In light of the evidence you have heard
today, evidence showing the destruction of multiple sites,
including burial sites that are sacred to Native people, how is
it possible for you to argue that this activity is not a
violation of that trust responsibility, then?
Mr. Cameron. Mr. Chairman, I am not familiar with all
activity going on across the entire border. I am aware of the
fact that the Congress provided authority to the Federal
Government.
Mr. Gallego. Just specific to what you heard today and from
the testimony of other witnesses is what I am referring to, not
the grander border area.
Mr. Cameron. Yes, sir. The way I would respond to that is
that the National Park Service and, indeed, all of our bureaus,
when in the conduct of any of our activities, we discover
cultural resources or human remains, most certainly, we go
through a process with the tribes to try to repatriate, if you
will, those resources if they are interested in doing that.
Mr. Gallego. Moving on, then, on the first panel, Chairman
Norris discussed the fact that CBP expedited its construction
on several sacred sites, including Monument Hill, after
Chairman Grijalva visited and pointed out these places.
Given your department's close working relationship with
CBP, can you provide a concrete explanation to why the timeline
and construction on these sites was moved up? Can you confirm
the Department intended to pre-empt any opposition to the
destruction of these places?
Mr. Cameron. Mr. Chairman, I am unaware of what particular
stretches of ground DHS was planning construction on. What I
can tell you is none of the human remains that have been found
were found from Monument Hill if that is at all helpful.
Mr. Gallego. When was the last time you had consultation
with DHS regarding this construction?
Mr. Cameron. The Department has conversations almost on a
daily basis with DHS in terms of our activities along the
entire southern border.
Mr. Gallego. And what was the last time there was
coordinated meetings with the Tohono O'odham Nation or other
tribes regarding the sacred sites?
Mr. Cameron. Let's see. According to my records, most of
the activity, certainly the most recent one that I am aware of
was in December 2019 when CBP, the Park Service, conducted a
meeting with the members of Tohono O'odham to discuss
construction activities at Monument Hill and Quitobaquito. That
is the last one I am aware of. There may have been ones
subsequent, Mr. Chairman.
Mr. Gallego. So, when Chairman Norris received, I think it
is an e-mail or text that they are about to start blasting,
when would that occur?
Mr. Cameron. I don't know, sir.
Mr. Gallego. Were you made aware prior to Chairman Norris
getting that notification that they are about to start
blasting?
Mr. Cameron. I certainly was not. There is a possibility
other folks at the Department may have been but I was not, no.
Mr. Gallego. You can see how that isn't, according to what
I believe the Tohono O'odham Nation sees and I think what many
of us see, that that does not show a certain level of respect
or tribal consultation or coordination when one of our trusted
leaders and community leaders and tribal leaders is getting an
e-mail about blasting to start.
Last, I would like to make sure that we get a record of all
the communications and meetings between CBP and Department of
the Interior regarding the project and I yield back my time.
Dr. Gosar. Mr. Cameron, in your testimony, you state, and I
quote, ``cultural resources, wilderness areas, wildlife
refuges, plant, and animals are adversely impacted by land
degradation and destruction from trails, trash, fires and other
activities related to the unlawful border crossings.'' Did you
make that statement?
Mr. Cameron. Yes, sir, I certainly did.
Dr. Gosar. Now, you add in, ``Construction of border
barriers will reduce or eliminate impacts from illegal entry
and will help maintain the character of these lands and
resources.'' Do you have things that back that up? I mean, do
we see where a current fence is? We see a better area of
vegetation?
Mr. Cameron. Well, sir, I think it is very clear that if
you don't have illegal vehicles driving willy nilly over an
area, you are less likely to have destruction of archaeological
resources, you are less likely to be running over endangered
desert tortoises, you are less likely to be inflicting all
sorts of damage on the land and the resources associated with
it. And by creating a wall, if you are limiting the traffic,
then those resources are easier to restore and less likely to
be damaged, not to mention the fact that you won't have people
trying to cross that area and end up dying as has happened.
Dr. Gosar. In implementing this mandate, you outline legal
requirements placed on the agencies that, despite the waiver
authority being in place, must be carried out. You cover an
extensive list of resource protection actions and stakeholder
consultations performed by the Federal Government. Specific to
border infrastructure in Organ Pipe Cactus National Monument,
you cite consultation with over 100 entities, including
Federal, state and local government agencies and tribes, among
others.
You stated these actions and requirements have resulted in
siting and wall alignments to identifying known archaeological
sites, ethnographic resources and areas with a high potential
for intact cultural resources, identifying sensitive plant
species and avoiding impacts to federally listed species
habitat, real-time monitoring and alarm for Quitobaquito
Springs hydrology system to ensure the protection of the
resource. Mr. Cameron, my question to you, does the government
of Mexico offer monitors to ensure the drug cartels or unlawful
immigrants avoid these archaeological sites?
Mr. Cameron. Sir, to the best of my knowledge, they do not.
Dr. Gosar. As a followup, to your knowledge, do the drug
cartels or unlawful migrants offer mitigation strategies to
reduce their impacts on the cultural sites and environment?
Mr. Cameron. I think it is fair to say, Mr. Gosar, that the
drug cartels and other illegal people doing things on the
border are oblivious to or don't care about our Endangered
Species Act or NEPA, for that matter.
Dr. Gosar. Do you know if they consult the tribes or other
impacted stakeholders?
Mr. Cameron. I would be really surprised if they did, Mr.
Gosar.
Dr. Gosar. Is there evidence that the border wall will
impact listed species such as the Sonoran Pronghorn?
Mr. Cameron. There is the possibility. What I would also
point out is the Department, for a number of years, has
undertaken mitigation activities to try to protect fish and
wildlife populations in the border area and more generally. And
I know there have been some efforts undertaken to help restore
populations of Sonoran Pronghorn.
Dr. Gosar. But in a wide-open aspect of which is frequently
frequented by drug smugglers and cartel members, it seems to me
like they would be very problematic to those species
recoveries.
Mr. Cameron. In fact, Mr. Gosar, if I were a drug smuggler
with a gun and I was hungry, I would be tempted to shoot a
desert pronghorn and have it for dinner.
Dr. Gosar. Kind of what I was thinking. The border wall
that currently exists there, we were just there last week--I
mean, there is a barrier, the cross brace that is on the ground
like the Normandy cross and stuff. Has that really mitigated
and helped the area?
Mr. Cameron. I don't have specific information on that. I
think it is really clear that a low barrier or vehicle barrier
is not nearly as effective as the sort of barrier that CBP is
installing along the border at this point. Clearly, the
existing barriers have not stopped illegal movement of people.
They have not stopped drug trafficking.
Dr. Gosar. I agree. But they stopped a lot of traffic. We
have heard over a thousand different violations with vehicles
who were actually stopped by putting the Normandy barrier but--
--
Mr. Cameron. Yes, sir. I think that is successful. They
have also seen, as you have illustrated with some of the
photographs we have shown earlier, there are abandoned vehicles
perhaps just south of those barriers that are causing issues.
Mr. Gallego. Thank you, Ranking Member. I now recognize
Representative Haaland.
Ms. Haaland. Thank you, Chairman. My first question will go
to Dr. Ortiz. Those of us in Indian Country know that when
Federal agencies fail or refuse to engage in tribal
consultation on a project, mistrust can result. My first
question is how do you see the relationship with the Interior
and Tribal Nations developing under the current Administration
after everything that has happened. And is the current
situation at the border reversible?
Dr. Ortiz. GAO has not done work specifically looking at
that relationship. We do know that on occasions, like we have
seen over the past couple of months, when consultations or
other requirements are waived, it further exacerbates mistrust
that may have already existed, and it really risks irreparable
harm to sites.
Sometimes these sacred sites and cultural resources could
have been preserved with very modest adjustments. And GAO's
research suggests that even outside the realm of formal
consultation, developing a good ongoing relationship with
tribal and local stakeholders will help you figure out ways to
construct infrastructure with the minimal potential harm.
Ms. Haaland. I understand. And when all of this occurs,
what does the GAO recommend the Federal Government do to regain
tribal trust?
Dr. Ortiz. GAO recommends improvements to tribal
consultation practices, specifically such as we have
recommended to 15 agencies that they should tell tribes how
their input was weighed. We are also recommending improvements
to the Federal Permitting Improvement Steering Counsel in terms
of centralizing information so that tribes can be consulted in
a more timely fashion and that there is better coverage to
recognize which tribes are concerned with the geographic area
even if they don't live there.
Ms. Haaland. Right, that is better than a text a few hours
before the incident happens, I guess. Thank you, Dr. Ortiz.
Mr. Cameron, with respect to your testimony regarding--and
my colleague, Mr. Gosar, brought this up--the cultural
resources, plants, animals, being adversely impacted from the
various negative impacts, including trash and people driving
through there, can trash be cleaned up?
Mr. Cameron. Sorry.
Ms. Haaland. I mean, it is a yes or no. Can trash be
cleaned up?
Mr. Cameron. Yes.
Ms. Haaland. OK, good. But a sacred site that has been
blasted, it can never be made whole again. I want you to
understand that. And you know why? Because ancestors put those
things in the ground with care and love and tradition and
prayers. Those can never be regained again. And I want you to
understand that you can't equate sacred sites and burial
grounds with trash. You can't equate that with people walking
through the desert or leaving their abandoned trucks there.
That pales in comparison to what these ancestors of these
people have done. They put those things there for a purpose,
because they knew that, in the future, we would rely on that
knowledge and knowing that those ancestors are there.
I don't expect you to understand that, but I am trying to
impart a little information on you so that you understand how
they feel about this and why they cry when they see that place
being blasted apart. You can't equate that with trash and with,
oh, somebody--they burned up this tree or they--the damage that
this Administration is doing to this area is irreparable. It is
irreparable, and you didn't even ask. Nobody asked permission
of these people to do any of that.
It is shameful and it is immoral. Like I said during the
last panel, this--we are having this hearing because we care
deeply about what is happening with this land. But it is all
over. It is happening all over the country with this
Administration. And that is why I will say again I don't know
how any of you sleep at night. Chairman, I yield.
Mr. Gallego. Thank you, Representative Haaland. I now
recognize Representative Garcia.
Mr. Garcia. Thank you, Mr. Chairman, and to the two members
of the panel. Before I make my remarks, I just have to preface
this by saying that, for all of the talk of protecting
religious freedom, I can't believe what the Administration and
its representatives here are telling us and the exchange that
is taking place and how sacrilegious it really is.
Since taking office, Donald Trump has relentlessly tried to
fund construction of an ineffective wall at the cost of
taxpayers, the environment, and Indigenous peoples, as we see
today, all while helping his friends make profits at the
expense of our communities, such as in waiving the procurement
process. It is beyond egregious and repugnant to think that
this Administration, one that pushes for religious freedoms, is
also violating the sanctity of the ancestral lands of
Indigenous people in our country.
The Administration continues to bypass environmental
regulations and other laws in its efforts to construct a border
wall. But it will not go unchecked, not while Democrats control
the House. Dr. Ortiz, in what ways is it within the purview of
the Federal Government to actively engage in tribal
consultation, and why is that consultation important?
Dr. Ortiz. Tribal consultation is a critical way in which
we demonstrate the Federal respect for tribal sovereignty and
the government-to-government relationship we have with tribes.
When we act to protect archaeological, historical, cultural,
natural resources that are of importance to Native Americans,
we are acting consistent with the Federal trust responsibility.
Mr. Garcia. Can you elaborate on the current barriers that
hinder effective consultation with the tribes?
Dr. Ortiz. There are several current barriers. And among
those that came out most frequently in GAO's review were those
dealing with the timeliness of notification and the adequacy of
notification, whether or not a tribe that had ancestral or
treaty rights in an area was actually notified. We have also
noted there have been problems with whether or not agencies
genuinely weigh tribal input. I think, as one Representative
said earlier today, going through the motion of compliance
rather than actually weighing input and acting with the respect
that a government-to-government relationship merits.
Mr. Garcia. Thank you. Mr. Cameron, do you feel that your
agency has done an adequate job in consulting with the tribes?
Mr. Cameron. Yes. Congressman, as a general principle, I
know Assistant Secretary Sweeney has been involved in numerous
tribal consultations around the country. In the particular
instance we are talking about today, the Congress passed a
statute that provides for an expedited process for construction
of a border wall. And the Administration has chosen to exercise
the authority that the Congress gave.
Mr. Garcia. Is the consultation adequate?
Mr. Cameron. Adequacy----
Mr. Garcia. Your opinion.
Mr. Cameron. Adequacy, I think, is probably in the eye of
the beholder, Congressman. What I can tell you----
Mr. Garcia. OK. Thank you. In your testimony, you note that
the agency has conducted 90 formal consultation sessions on 17
topics and 30 informal listening sessions with tribes. What is
the difference between a formal consultation and an informal
listening session?
Mr. Cameron. I am afraid I am out of my legal depth to give
you a precise answer. I am happy to do that for the record.
Mr. Garcia. OK. Do you consider e-mails a form of
consultation?
Mr. Cameron. I consider e-mails a form of communication.
Mr. Garcia. Are they consultation?
Mr. Cameron. All I can tell you is that the Department and
CBP have taken steps to communicate regularly with the affected
tribes, in terms of activity on the border, and we have made a
good-faith effort to understand the tribes' concerns and to try
to address them.
Mr. Garcia. Regardless of what you say, this Administration
is bulldozing through and desecrating sacred sites with little
to no consultation with the tribes. Thank you, Mr. Chairman. I
yield back.
Mr. Gallego. Thank you. I now recognize Chairman Grijalva.
Mr. Grijalva. Mr. Cameron, when Interior effectively lost
control of the public lands back in 2005 with the REAL ID Act
and we ceded that responsibility to Homeland Security, much of
the decision making that occurs around issues such as sacred
sites, consultation, has been ceded to another agency. And you
mentioned in your testimony how strong interagency cooperation
and meetings occur.
Let me ask you about one topic, if there was any
discussion. The decision and the change, the administrative
change to expedite and waive the procurement process so that
the wall could be built more rapidly and the firms that came
on, did Interior have any role in assessing whether they
understood what a relationship with a tribal nation might be,
that they understood what a sacred site might be, a burial
site, a ceremonial site? Did you have any input into assessing
that construction company's ability to work in the Southwest,
to work adjacent to Indian land, and to be able to do that and
still be respectful of the historic, cultural, and human issues
that are involved with that? Did you have any input in that?
Mr. Cameron. Mr. Chairman, what I can tell you is that
Interior and CBP talked on a regular basis. There were
archaeological surveys that the Park Service did.
Mr. Grijalva. I am talking about the firms that got hired.
Mr. Cameron. I am not aware of specific details in terms of
briefings with the individual contractors. But I would be happy
to try to find that information for the record, Mr. Chairman,
if you would like.
Mr. Grijalva. Yes, I think that would be important, or we
can request it ourselves. But the other issue, Mr. Cameron,
that I think is important, and it goes to the issue of
consultation which separates what we are talking about here
from the other issues that are going on relative to the wall.
That trust responsibility is embedded in the work of Congress
and in the Constitution. And, as such, I think it has pre-
eminence in many of the discussions that we are having.
And something as important, as enshrined as trust
responsibility and nation-to-nation consultation gets routinely
waived, ignored. Don't you think that creates a fundamental
problem? You keep saying we have the right based on 2005 that
we can waive whatever we want. Fine. But in terms of the
Interior and its role and its jurisdiction and its relationship
with Indian Country, don't you think you can't be that cavalier
about that situation?
Mr. Cameron. Mr. Chairman, I would suggest that Interior is
not being cavalier at all. Interior is having conversations all
the time with the Tohono O'odham Tribe and, not to mention,
other tribes in the Southwest. We take our trust responsibility
very seriously, which, at its core, is an open communication
between the Federal Government and the tribes in trying to
understand each other's mutual concerns and interests. I think,
as you have observed, Mr. Chairman, it is rather an unusual
statutory situation along the border with the Roosevelt
Reservation. And the Congress has given the executive branch
unusual authorities. And the Administration has determined that
it is in the best interest of the national security----
Mr. Grijalva. The last Congress gave them unusual
authority. This Congress hasn't given them unusual authority.
That is why you had to go to the Defense Department to get
money to build a wall because this Congress didn't do it.
But anyway, my other point is, Dr. Ortiz, different
agencies and when you talk to tribal leaders, some agencies
find the requirement of consultation burdensome. Tribes respond
that it is subjective, that some do it well, like you gave
examples. Is there a place for some level of uniformity and a
legal mandate on how consultations should be done across the
Federal Government, agency-to-agency, so that we don't have
different boxes that are being checked off, that there is a
criteria on how you interact and how you deal with tribes? Did
you think there is a need for that that Congress should
explore?
Dr. Ortiz. GAO hasn't directly evaluated the need for that.
We have looked specifically at different policies. Where we do
see some agency policies really shine in terms of what they
demand for those consultations in terms of what they expect
agencies to do and in terms of the manner in which they treat
the input and expertise of tribes.
Mr. Grijalva. Thank you. I yield back. Thank you for your
indulgence, Mr. Chairman.
Mr. Gallego. Thank you. I would like to thank our witnesses
for their insightful testimony and the Members for their
questions. As I stated before, the members of this 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, and the
hearing record will be held open for 10 business days for these
responses. If there is no further business, without objection,
the Committee stands adjourned.
[Whereupon, at 4:48 p.m., the Subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Powerpoint Presentation for the Opening Statement of the Hon. Raul M.
Grijalva, Chair, Committee on Natural Resources
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
T.O. Border Trip
Chairman Grijalva Briefing Notes and Locations
Monument Hill
Archeologists, Tribal elders were interviewed and identified this
hill as sacred to the O'odham. This hill is mentioned in Father Kino's
letters and there was no Sonoita. During Apache raids, if a body was
found their body would be placed on this hill. Meaning there are bodies
of other tribes among this Hill with bone fragments. DHS mentioned that
they would back off on developing the Hill but the work is still being
done (as you can see the road is widened in the photos/video) even
after the tribe mentioned this area in a letter. Edward Abbey mentioned
Monument Hill and its significance to the tribe in his archeology
papers published in 1960s.
Quitobaquito Springs
There is a Hia-ced O'odham (Sand People) village next to the Spring
that was mentioned in 1693-1695 by Father Kino. There is another
mention of this area in 1908 that also recorded the village north of
the Springs. In 1937, the Park Service purchased the land from the
families in this area and that was the last time people habited the
area. There is a Hia-ced O'odham cemetery \1/2\ mile north of the
Springs.
Ground water pumping
Since the border wall construction includes ground water
extraction, there is a white water monitoring tank that has been
temporarily placed in the Springs for the benefit of the tribe and the
park. The Border Patrol is digging water wells for the construction of
the wall. The tribe is concerned about how the digging of the wells
will affect the water tables of the sacred Springs. Archeologist noted
that in the late 19th century a diversion of water into this area for
fields. The tribe asked for a buffer area to allow for the animals to
come back and forth through the area since the Springs is also
considered a watering hole for some animals in the area.
Wildlife Impacts
Quitobaquito pupfish is an endangered species in this spring. The
Sonora Mud Turtle is a candidate for the endangered species list and is
only found in this spring. Other animals in this area include the
Sonora Prong Horn and little animals--there are 150 species recorded
drinking out of this Spring. The roadrunner will not be able to go
through the fence. There will be an impact for wildlife--the fence
construction includes lights for night construction crews, and this is
a concern for migrating birds. The nearest water wells are being pumped
7-8 miles away. The impacts of the water pumping and wildlife may not
be seen for several years.
Also, north of the Springs there is a graveyard the Tribe uses as a
site for reburials. The spring head is also a sacred site for the
O'odham. White clay is gathered from this area for ceremonies.
Artifacts Area--Between the Springs and the current border fencing
there is an area where artifacts have been found. This area will be in
the proposed construction roadway. The proposed roadway may come up to
60 ft from the current border fencing.
Artifacts, seashells, and human bone fragments have been found in
an area near Quitobaquito Springs for the Hia-ced O'odham (Sand
People). Bones, artifacts, pottery and shells are found throughout the
area leading to the Springs on both the U.S. and Mexico side of the
border.
There is an archeologist that DHS has contracted to be the monitor
for the entire construction of the border wall, and he drives back and
forth along the road. This is not the most efficient way to monitor the
desecration of artifacts. At one point during our trip we saw him
driving, the tribe's archeologist stopped him and asked about the new
roadways constructed and the plants that were thrown on the side of the
roads. He noted that they have hired another archeologist to monitor,
but he was not allowed to talk to anyone.
Saguaro Impact
To prepare for the construction trucks, cranes and materials that
will need to be transported the current roadway next to the border will
be widened up to 60 ft. This means that plants within that area will be
bulldozed or replanted. Cacti with stakes mean they have been
transplanted away from the current construction area. From what
archeologist know there are over 800 saguaros that have been
transplanted. The DHS Contractor for the construction--Northland
Research only listens to its own arborist and dose not coordinate with
Parks or tribal archeologists. Photos and video indicate that folks on
the ground were surprised to see the progress on the roadway there were
areas of the roadway that were not bulldozed just a month ago that were
flattened.
Construction Roadways
The Nation was told that the roads next to the current fencing and
border structures would be widened for the border wall construction
trucks and crew to put the wall up. The new road would be within 60
feet of the current border structures. There are markers along the
current roadway that show where the proposed roadway will be. Most of
the plants in the area are supposed to be marked with a stake for re-
planting or receive a red spray paint dot that indicates the plant is
not re-plantable and is tossed aside.
DHS has its own arborist that monitors the construction. The
Arborist does not notify the NPS Archeologist of the plants that are in
the way of the roadway construction.
Las Playas--Intaglio Site
Some rock piles date back over 2,000 years maybe even longer. Other
rock piles are more recent and are at least 100 years old. Ceremonial
dances were performed in this area which is as big as a football field.
This site was known to exist for at least 10,000 years. Tribal elders
have noted that this is an area used for ceremonies, and dances. The
Hia-ced O'odham have a village across the border not too far from this
location. DHS has not responded as to where the site of the proposed
roadway would be--given is proximity to the border and the current
roadway. The area where the rocks are placed falls within the 60 ft.
Las Playas--Burial Site
This was a burial site for the Hohokam around the 1700-1800s in
this area there are artifacts that go back 10,000 years. The older
sites are showing a continuity of the people living in this area, this
is consistent with the oral traditions. This area was part of a walking
area for people and is in the pathway that would lead to water. Across
the border from this site, is another Hohokam village. This burial site
may have been used by the people of that village. Bone fragments and
shells were also found in this area. This burial site is next to the
current Normandy style barriers that exist for the border. Current
roadways go around the burial site, but a widening of that may disturb
the burial site.
______
Photo Submissions taken from Chairman Grijalva's Border Wall Tour on
January 20, 2020
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
July 5, 2019
Paul Enriquez, Environmental Branch Chief
Border Patrol Facilities and Tactical Infrastructure Program Management
Office
1300 Pennsylvania Avenue NW
Washington, DC 20229
Carla L. Provost, Chief
U.S. Border Patrol
1300 Pennsylvania Avenue NW
Washington, DC 20229
Roy Villareal
Border Patrol Tucson Sector Chief
2430 S Swan Road
Tucson, AZ 85711
Re: Coalition Comments on Proposed Border Walls in Arizona's Pima and
Cochise Counties
Dear Mr. Enriquez,
These comments on the proposed construction of 63 miles of border
walls and the installation of lighting and technology in the United
States Border Patrol (USBP) Tucson sector are submitted on behalf of
the undersigned conservation, human rights, public interest, and faith-
based organizations.
We must note immediately that this comment process is deeply flawed
and seemingly meaningless, as Customs and Border Protection (CBP) has
already awarded a $646,000,000 construction contract for this project
just days after sending the public a request for comment.\1\ This
clearly illustrates that CBP has no intentions of modifying or changing
the proposed course of action based on input received. CBP's attempt to
exempt itself from 41 environmental, public health and cultural
resource protection laws \2\ further demonstrates the agency's complete
disregard for engaging with stakeholders and addressing concerns of
communities that will be harmed by the project. Unless CBP immediately
halts construction and rescinds the waiver of these laws, it appears
there will be no analysis of the clear harm the project would inflict
on communities, clean air, clean water, endangered species, cultural
resources, and indigenous culture and heritage along the Arizona-Mexico
Border.
---------------------------------------------------------------------------
\1\ Department of Defense. 2019. Contracts for May 15, 2019.
https://dod.defense.gov/News/Contracts/Contract-View/Article/1848882/.
\2\ 84 CFR 21798. May 15, 2019. Pages 21798-21800 https://
www.federalregister.gov/documents/2019/05/15/2019-10079/determination-
pursuant-to-section-102-of-the-illegal-immigration-reform-and-
immigrant-responsibility#print.
---------------------------------------------------------------------------
While CBP has failed to provide adequate information for the public
to comment on this project, it is clear from the vague information in
the comment solicitation notice that the construction of 63 miles of
border walls in the locations proposed would cause severe and
irreversible damage to the environment and harm the culture, commerce,
and quality of life for communities and residents located near the
project areas. Similar border barrier projects have damaged and
destroyed protected landscapes, interfered with binational conservation
efforts, obstructed the movement of wildlife, and impacted nearby
communities.
Based on the limited information provided by CBP in the May 6
notice, we gather that the area of proposed construction for this
project would fundamentally alter or destroy portions of Organ Pipe
Cactus National Monument, Cabeza Prieta National Wildlife Refuge,
Coronado National Memorial, the San Pedro Riparian National
Conservation Area, and the San Bernardino National Wildlife Refuge,
among many other areas. The project would also damage or destroy
designated critical habitat for dozens of endangered species including
the jaguar, Quitobaquito pupfish, San Bernardino spring snail, Huachuca
water-umbel, Mexican spotted owl, Yaqui catfish, Yaqui chub, and
beautiful shiner. The project would also occur near homes, ranchlands,
and recreational areas, and have negative impacts on the health and
wellbeing of residents on both sides of the border.
The proposed project and further militarization of the border would
also damage commerce, trade, and tourism in the region. CBP's proposal
to construct border walls through frequently visited tourist
destinations would have significant repercussions on southern Arizona's
ecotourism economy and cause economic harm to border communities. CBP
must assess potential harms that the proposed project would have on the
environment, the economy, endangered species, air quality, water
quality, and public health before moving forward.
CBP's notice to comment is replete with vagueness and devoid of
site-specific details. The one thing that is clear from the limited
information provided is that the scale of the project is massive,
spanning the majority of Arizona's southern border. A project of this
scale will undoubtedly result in the destruction of federally protected
lands, and restrict the movement and migrations of myriad species of
wildlife, interfering with their ability to access food, water, mates
and habitat. This project clearly warrants an in-depth and transparent
review of potential impacts, as would normally be required under the
National Environmental Policy Act (NEPA).
Before we discuss the potential harms caused by the proposed
project, we must remind CBP that there is no evidence that the
construction of additional border barriers would achieve the agency's
stated goals to ``impede or deny illegal border crossings,'' as border
walls of many designs have proven easily surmountable by people in a
number of ways, including with a ladder or a rope.
We request that CBP carefully review and respond to the numerous
concerns raised within the following sections of this letter before
moving forward with any aspect of border barrier construction.
Inadequate Public Notice and Comment
We strongly object to CBP's insubstantial and discriminatory public
comment process for this project. CBP's failure to publish a Spanish
language notice to comment is unacceptable and amounts to language-
based public input suppression and discrimination. Based on the
substantial inadequacies of the public comment process, it is almost
certain that key stakeholders have been disregarded and federal
requirements for coordination and/or consultation with other federal
agencies, such as those required by the Endangered Species Act (ESA),
NEPA, and other relevant federal laws, have been ignored.
CBP has held just one public meeting in Ajo, Arizona, with only
low-level, non-decision-making CBP staff in attendance. No additional
public meetings have been scheduled for communities that will
undoubtedly be harmed by the project. This denial of a transparent
public process strongly suggests that CBP has no sincere interest in
obtaining thoughtful comments and broadly engaging with the diverse
constituencies affected by the project. To gather sufficient,
meaningful public input, CBP must host public comment forums in English
and Spanish in each of the affected areas including Tucson, Sells,
Sierra Vista, Patagonia, Douglas, Nogales, and Yuma regarding the
construction of border barriers through communities and protected
lands.
We note that CBP has already awarded a construction contract for
the proposed project, which suggests that no amount of public input,
scientific data, or new information provided to agency officials and
decision-makers would actually alter the proposed action or inform the
development of alternatives. CBP must cancel or at a minimum put the
existing contract on hold until all relevant stakeholders have been
consulted, public forums have been held, and public comments and
concerns with the project--including the consideration of alternative
courses of action--have been analyzed.
We also note that the information provided within CBP's notice to
comment is wholly inadequate to solicit meaningful public comment. The
map contained in the notice lacks basic landmarks, simple cadastral
data, and even a rudimentary map legend and scale. CBP says it intends
to install lighting but gives no description whatsoever of the extent
its intent, including how the lighting will be powered, how light
pollution will be mitigated, and why lighting is even necessary when
billions of tax dollars have been spent on surveillance technology that
works in the dark. Similarly, CBP has provided no information about the
critical issue of water. We have heard through informal sources that
CBP plans on drilling wells every five miles along the border for this
purpose. Such an action would be devastating to wildlife and border
communities.
To meaningfully comment on the impacts of this project, the public
must first understand the specifics of the proposal, including a
detailed and accurate description of where the proposed walls and
associated infrastructure would be placed. It is CBP's responsibility,
not the responsibility of the public, to compile and share detailed
information on the proposed project before requesting the public to
comment. CBP must provide detailed maps of the project area and extend
the comment period to allow the public to make informed and specific
comments after reviewing detailed and specific maps showing the extent
of CBP's proposal.
NEPA is a clear and well-established method of soliciting public
comment, for which there is no substitute. Though CBP has elected to
waive NEPA in its entirety, the public interest and the ultimate
decision-maker would benefit from complying with NEPA and moving this
process forward under NEPA with the completion of an Environmental
Impact Statement (EIS). Importantly, a NEPA-compliant EIS would ensure
that the process is transparent and publicly accessible by providing
notice to comment via Federal Register publication, local newspapers,
and other means that are necessary to reach the communities that the
proposed action would impact. The NEPA process would also cure the
numerous and significant shortfalls in CBP's effort to notify and
invite public comment for this project, including the selective
distribution of the notice to comment and the dismal lack of detail
about the project included therein.
Lastly, a NEPA-compliant EIS would allow CBP to analyze the true
purpose and need for the project and consider alternatives to the
proposed project, including a ``no action alternative'' and other
alternatives that would be less costly to taxpayers and less harmful to
the environment and neighboring communities. CBP has recently stated
that the agency would conduct environmental planning and produce
Environmental Stewardship Plans (ESPs) for border wall construction
projects that would ``look exactly like Environmental Assessments
(EAs)'' and ``mirror'' the intent of NEPA.\3\ We note, however, that
ESPs are not and will never be an adequate substitute for the NEPA
process. ESPs fail to meet the rigor set forth by NEPA in numerous
ways. As stated in the Council on Environmental Quality's regulations
implementing the procedural provisions of NEPA, alternatives are ``the
heart of the environmental impact statement.'' \4\ Whether in the
context of an EIS or an EA, NEPA requires agencies to ``study, develop
and describe appropriate alternatives to recommended courses of action
in any proposal which involves unresolved conflicts concerning
alternative uses of available resources.'' \5\
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\3\ Paul Enriquez, U.S. Customs and Border Protection. 2018.
Statement made during webinar on Rio Grande Valley border wall
construction. October 30, 2018.
\4\ 40 C.F.R. Sec. 1502.14.
\5\ 42 U.S.C. Sec. 4332(E).
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Prior ESPs prepared by DHS and CBP do not examine alternatives, and
instead have been used to justify decisions already settled on for
projects that were undertaken before the drafting or release of an ESP.
This is most clearly evidenced by DHS's August 1, 2017 decision to
waive 37 environmental, public health, and cultural resource protection
laws and break ground on 8 border wall prototypes and 16 miles of
``primary'' border wall in San Diego before conducting any sort of
assessment on the potential harms of project. CBP did not complete an
ESP for this project until 10 months after virtually all applicable
environmental, public health, and cultural resource protection laws had
been waived and construction was nearly complete.
For these reasons, before CBP moves forward with the proposed
construction, we request that CBP (1) immediately cancel or place on
hold the $646,000,000 construction contract with Southwest Valley
Constructors; (2) provide additional specific details about the project
including accurate, detailed maps as would be required in an EIS to
allow for informed public comment; (3) host public forums in English
and Spanish in the Tucson, Sells, Sierra Vista, Douglas, Nogales,
Patagonia, and Yuma communities; and (4) conduct this project in
compliance with all relevant federal laws including, but not limited
to, NEPA, ESA, the Clean Water Act, the National Historic Preservation
Act, the Migratory Bird Treaty Act, the Clean Air Act, the Safe
Drinking Water Act, the Archaeological and Historic Preservation Act,
the Historic Sites, Buildings, and Antiquities Act, the Religious
Freedom Restoration Act, the Native American Graves Protection and
Repatriation Act, the National Wildlife Refuge System Administration
Act, and the Administrative Procedure Act. CBP can start with the
publication of a notice to comment on the proposal in the Federal
Register that provides a 60-day scoping period after sufficient
information has been made available to the public about the proposed
actions.
Destruction of Habitat and Impacts to Wildlife
Border barriers--regardless of whether they are composed of mesh,
bollards, solid steel, or concrete--are well understood to be
ecological stressors that destroy habitat, prevent genetic interchange,
and impede wildlife migration.\6\ In July 2018, more than 2,500
scientists published a paper detailing the harms that border walls
cause to habitat quality, stating: ``Physical barriers prevent or
discourage animals from accessing food, water, mates, and other
critical resources by disrupting annual or seasonal migration and
dispersal routes.'' \7\ Existing border walls in Arizona and across the
U.S.-Mexico borderlands have caused extensive and well-documented harm
to wildlife and natural processes, including the destruction and
fragmentation of habitat; interference with the flow of water and the
exacerbation of flooding; and disturbances and harm to wildlife during
construction.
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\6\ Flesch, A.D., C.W. Epps, J.W. Cain, III, M. Clark, P.R.
Krausman, and J.R. Morgart. 2010. Potential effects of the United
States-Mexico border fence on wildlife. Conservation Biology, 24, 171-
181.
\7\ Peters, R., W.J. Ripple, C. Wolf, M. Moskwik, G. Carreon-
Arroyo, G. Ceballos, A. Cordova, R. Dirzo, P.R. Ehrlich, A.D. Flesch,
R. List, T.E. Lovejoy, R.F. Noss, J. Pacheco, J.K. Sarukhan, M.E.
Soule, E.O. Wilson, J.R.B. Miller. 2018. Nature Divided, Scientists
United: US-Mexico Border Wall Threatens Biodiversity and Binational
Conservation, BioScience.
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Existing border security infrastructure, including miles of border
barriers built with no environmental review, already poses a
significant threat to wildlife and conservation lands in and around the
proposed project area in Arizona. CBP's operation of motor vehicles in
wilderness, round-the-clock patrols, and helicopter flights are already
persistent disturbances to wildlife in many of the project areas. The
proposed walls will only exacerbate existing damage and further degrade
the unique and irreplaceable habitats in the Arizona borderlands. Any
potential harm caused by the proposed project must be considered
cumulatively with the existing stressors on species and habitat caused
by border militarization and associated infrastructure and operational
activities.
CBP's proposed project seeks to replace existing vehicle barriers
with border walls in federally protected lands along the Arizona
border. We remind CBP that the existing vehicle barriers, typically
made of steel ranging from four to six feet in height, were installed
as a result of collaboration, compromise, and much deliberation between
federal land managers, border security officials, and environmental
groups. We note that the National Park Service (NPS) even paid to
install vehicle barriers in Organ Pipe Cactus National Monument out of
its own budget, indicating the agency's investment in this less
damaging alternative to a solid border wall.\8\ Since their
installation, vehicle barriers have been touted as both effective at
stopping smuggling and compatible with the environmental considerations
inherent in protected federal lands.
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\8\ Congressional Research Service. 2009. Border Security: Barriers
along The U.S. International Border. Prepared by Haddal C., Kim Y., and
John Garcia, M. March 16, 2009. https://fas.org/sgp/crs/homesec/
RL33659.pdf.
A 2006 article in the Arizona Republic attested to the effective
compromise that the newly installed vehicle barriers represented,
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noting:
``For now, barriers are the best compromise available for land
managers who want to protect their battered parks, Border
Patrol agents who want to keep illegal immigrants out and
environmentalists who are concerned that solid border walls
will destroy protected species and impede animal migration.
They are proving effective, too, reducing illegal vehicle
traffic by more than 90 percent in some areas . . . Vehicle
barriers . . . seem to be an answer to one point on which
environmentalists and Border Patrol agree: The success of a
border wall on Arizona's public lands is doubtful.'' \9\
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\9\ Arizona Republic. 2006. New Fences Protecting Fragile Areas on
Border. Corinne Purtill. August 26, 2006.
The existing vehicle barriers in Organ Pipe Cactus National
Monument and across the U.S.-Mexico border are the result of years of
careful deliberation and compromise. CBP's new proposal to replace
these effective and environmentally compatible barriers with a solid
wall ignores decades of communication between federal land managers,
border security officials, environmentalists, and the public. Indeed,
CBP's proposal would steamroll all of these important concerns and
cause severe damage not just to Arizona's protected natural resources,
but to CBP's relationships with key local stakeholders, federal land
managers, and the Arizona public at large.
The disturbance of land, potential harms to air and water quality,
and interference with natural water drainage and flow also has high
potential to harm and alter southern Arizona's unique flora. Ground
disturbance resulting from the proposed project also raises concerns
about the introduction of nonnative plants and erosion. Without plant
cover to slow water flow and stabilize soils, rain would likely cause
gullying and loss of topsoil, further degrading ecosystems within and
adjacent to the proposed project areas.
Apart from the low-resolution and inadequate maps attached to CBP's
notice to comment, no maps have been released that adequately detail
the project area or assess the acreage of habitat that would be
destroyed as a result of the project. Even based on the limited
information CBP has provided, it is clear that the proposed project
would harm native species and the natural environment. Despite this,
CBP has not indicated that it would mitigate harm to wildlife,
including threatened and endangered species, and their habitat. Even if
CBP proposes mitigating actions, we are concerned by CBP's poor track
record regarding promised mitigation.
For instance, in the Lower Rio Grande Valley National Wildlife
Refuge, where CBP erected many miles of border wall and upgraded patrol
roads in 2008, CBP prepared an ESP which determined that the most
appropriate mitigation for destroyed or fragmented habitat would be the
purchase of 4,600 acres of land that could serve as ocelot habitat to
be added to the U.S. Fish and Wildlife Service (USFWS) refuge system.
To date, CBP has purchased only 1,100 acres of potential ocelot habitat
in South Texas. This is less than a quarter of the habitat that CBP
committed to purchasing in the 2008 ESP to offset habitat destruction.
This demonstrates 1) that CBP does not take mitigation commitments
seriously and 2) that mitigation strategies and conservation measures
outlined in ESPs are not adhered to by the agency, further
demonstrating how ESPs are an inadequate substitute for NEPA. We are
concerned that similar pledges of mitigation that might be made in the
course of this proposed project may also be left unmet or ignored.
Given the massive scale of the proposed project and the importance,
uniqueness, and sensitivity of many of the areas that would be harmed,
it is impossible to condense all of our concerns into one short
document. We have selected certain key species, areas and issues of
concern that are expanded upon below.
Endangered Species:
To our knowledge, CBP has not initiated ESA formal consultation
with USFWS to ensure that the proposed activities will not jeopardize
the continued existence of endangered or threatened species or result
in the destruction or adverse modification of endangered species
habitat. There is no indication in the notice to comment or elsewhere
that CBP intends to comply with the ESA or is taking into account the
impacts of border wall construction on federally listed endangered
species. If this project moves forward, failure to comply with the ESA
would further endanger the recovery of numerous endangered species
including the jaguar, cactus ferruginous pygmy owl, Sonoran pronghorn,
Quitobaquito pupfish, San Bernardino spring snail, Yaqui topminnow,
Yaqui catfish, beautiful shiner, willow flycatcher, lesser long-nosed
bat, and many others.
Despite the extremely vague description of the proposed project in
notice to comment, it is clear that the proposed construction would
result in the removal and degradation of habitat and could lead to
direct wounding, harassment, killing, and/or other forms of ``take'' of
listed species. The proposed construction would inevitably remove
vegetation, create disturbances, and potentially restrict species'
movement. CBP, like all other federal agencies, must also further the
purposes of the ESA by ensuring its activities aid in the conservation
and recovery of endangered and threatened species.\10\ We implore CBP
to uphold its legal duties under the ESA and request that CBP engage in
formal consultation with USFWS immediately.
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\10\ 16 U.S.C. Sec. 1531(c)(1).
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Night Lighting Harms Wildlife, Wilderness Character, Visitor
Experiences:
Many of the areas that would be harmed by the proposed projects are
wild, rugged and largely free of development. Remoteness from urban
centers, low humidity levels, and a lack of light pollution make places
like Organ Pipe Cactus National Monument and Cabeza Prieta National
Wildlife Refuge spectacular destinations for stargazing, largely free
of anthropogenic light.
CBP's notice to comment, while devoid of many details, does state
that the proposed wall would include the ``installation of lighting.''
This would severely detract from dark night skies and harm wilderness
character in Organ Pipe Cactus National Monument, Cabeza Prieta
National Wildlife Refuge, and any other areas where it is installed by
emitting light pollution and marring the natural night skies with
artificial light.
NPS management policies identify preserving dark night skies as an
important factor in preserving many park resources and values,
including ``wildlife, wilderness character, visitor experience,
cultural landscapes and historic preservation.'' \11\ A 2017 report
compiled by resource managers at Organ Pipe Cactus National Monument
noted the impacts of new security lighting installed along the border,
stating:
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\11\ National Park Service. 2006. Wilderness Preservation and
Management Policies 2006. Department of the Interior. Washington DC.
``Future border security developments also have the potential
to significantly impact dark skies. If the existing vehicle
barrier is converted into a full-on border wall, permanent
security lighting could potentially be installed--a development
that would be catastrophic for dark night skies in the
region.'' \12\
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\12\ National Park Service. 2017. Organ Pipe Cactus Wilderness:
Wilderness Character Narrative and Baseline Monitoring Assessment,
Building Blocks for Wilderness Stewardship. Department of the Interior.
March 2017.
Organ Pipe Cactus National Monument is currently in the process of
becoming an International Dark Sky Park and has undertaken a multi-year
process to retrofit lighting fixtures and conduct renovations that
minimize light emissions. This significant financial investment, as
well as the monument's future designation as an International Dark Sky
Park could be needlessly jeopardized by CBP's proposed project if
construction moves forward and lighting is affixed to the border wall.
Light pollution also has numerous and severe impacts to nocturnal
and crepuscular wildlife species by disrupting natural rhythms,
influencing predator-prey relationships, and hindering navigation.\13\
High intensity lighting in many of the proposed project areas would
affect birds, bats, and pollinators and disrupt natural movements.
CBP's proposed night lighting is also a significant concern for
endangered ocelots and jaguars, especially in the project areas that
encroach into designated critical habitat for the jaguar and known
occupied habitat for ocelot.
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\13\ National Park Service. 2015. Draft National Park Service Air
Quality Analysis Methods. Air Resources Division, September 2015.
Department of the Interior. Lakewood, Colorado.
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A 2004 paper on the effects of artificial night lighting on ocelot
populations in Texas' Rio Grande Valley determined ``illumination and
noise generated from diesel powered portable lights may cause ocelots
to seek other travel corridors.'' \14\ The same paper concludes
``activity levels either cease entirely as the result of night
luminance or shift to covered habitat that provides a shield from the
effects of night lighting.'' \15\
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\14\ Grigione, M.M. & Mrykalo, R. 2004. Effects of artificial night
lighting on endangered ocelots (Leopardus paradalis) and nocturnal prey
along the United States-Mexico border: A literature review and
hypotheses of potential impacts. Urban Ecosystems (2004) 7: 65.
\15\ Ibid. P. 74.
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Most border wall construction to date, particularly in remote
wilderness areas, has not involved the installation of night lighting.
For this project, CBP has demonstrated no clear need for night
lighting, especially considering the vast and severe harm such lighting
would cause to wildlife, wilderness character, and tourism.
Quitobaquito Springs:
CBP's proposed project would be devastating for Quitobaquito
Springs, a rare desert oasis just 150 feet north of the border at Organ
Pipe Cactus National Monument. Construction activities like bulldozing,
trenching, and clearing of vegetation will have catastrophic
consequences for this desert spring and Organ Pipe Cactus National
Monument as a whole. Quitobaquito is exceptionally rich in
biodiversity, harboring the only population of the Quitobaquito pupfish
and the only major population of the Sonoyta mud turtle in the United
States. Despite the tiny fraction of area, it encompasses within Organ
Pipe Cactus National Monument, it supports 45% of the flora found in
the Monument \16\ and is home to at least 271 plant species, including
locally rare wetland species found nowhere else in the country such as
the desert caper.\17\
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\16\ Felger, R. and B. Broyles. 2007. Dry Borders, University of
Utah Press (2007), p. 209.
\17\ Nabhan, G. 2003. Destruction of an Ancient Indigenous Cultural
Landscape: An Epitaph from Organ Pipe Cactus National Monument.
Ecological Restoration 21 (4), 290-295. Retrieved from http://
www.jstor.org/stable/43442711.
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Quitobaquito Springs is on the National Register of Historic Places
and contains human cultural artifacts dating back 15,000 years, making
it one of the oldest inhabited places in North America.\18\
Quitobaquito is still visited and used by traditionally associated
tribes, including for the Tohono O'odham ceremonial salt
pilgrimage.\19\ Decades of persistent conservation efforts to restore
and protect the oasis have allowed the spring to remain a thriving
haven for endangered species as well as a global tourist destination
and area of continued cultural use and significance. DHS's decision to
waive the Native American Graves Protection and Repatriation Act, the
National Historic Preservation Act, and the American Indian Religious
Freedom Act is deeply troubling. Waiving these critical cultural
resource protection laws imperils the incredible archeological record
present in this area and constitutes a repugnant insult to indigenous
peoples with deep cultural ties to the spring.
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\18\ National Park Service. 2016. Foundation Documents: Organ Pipe
Cactus National Monument. Department of the Interior.
\19\ Ibid. P. 6.
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Due to the waiver of all of the laws and requirements that would
normally apply to rush border wall construction, it appears there will
be no meaningful analysis on the impacts of wall construction at
Quitobaquito before ground is broken. As a result of this reckless
decision, the sensitive species, cultural resources, and even the
hydrology of the Quitobaquito could be forever harmed.
If border wall construction moves forward, it seems likely that the
project would involve the use of a significant amount of water for
concrete mixing. It is imperative that CBP refrain from taking any
water from Quitobaquito or from wells connected to the regional
aquifer, as any disturbance or extraction could jeopardize spring
outflow and imperil the future of the spring. Regional ground water
levels have been in consistent decline, exacerbated by climate change,
and long-term drought.\20\ Any water taken from the aquifer by drilling
new wells or reactivating existing wells in the region would increase
water drawdown and pose a threat to future outflow of the spring.
Because of such regional water scarcity, extraction from the regional
aquifer should not be permitted under any circumstances.
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\20\ National Park Service. 2017. Organ Pipe Cactus Wilderness:
Wilderness Character Narrative and Baseline Monitoring Assessment,
Building Blocks for Wilderness Stewardship. Department of the Interior.
March 2017.
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Quitobaquito Springs is one of the main visitor attractions at
Organ Pipe Cactus National Monument and has seen an increase in public
use and visitation in recent years.\21\ Quitobaquito is listed as one
of the monument's Fundamental Resource Values ``essential to achieving
the purpose of the park and maintaining its significance.'' \22\ CBP's
proposed project would have significant impacts not just on the spring
itself, but on the visitor experience traveling to and from this unique
destination. The public access road to Quitobaquito parallels the U.S.-
Mexico border for more than 10 miles. The vehicle barriers currently
present on the border along this road pose a minimal visual
obstruction, and are generally hidden by desert vegetation. As a
result, the drive to and from Quitobaquito feels remote with few signs
of human infrastructure or development. If CBP builds an 18-30-ft wall
along the border here, it would be visible for the entirety of this
drive and much of the southern reaches of the monument. This would
severely detract from visitor experience. Such impacts must be analyzed
before the project moves forward.
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\21\ Ibid. P. 19.
\22\ Ibid. P. 6.
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Destruction to Rare Sky Island Ecosystems:
A significant portion of the proposed border wall construction
would occur along the eastern portion of the Arizona-Mexico border in
an area known as the Sky Island region. Sky Islands are forested
mountains surrounded by desert and grassland habitat. They serve as
refuges for many plants and animals, providing cooler temperatures,
flowing water and suitable habitat within the Sonoran and Chihuahua
deserts. The Sky Island region encompasses approximately 22.7 million
hectares (56.1 million acres) and over 55 individual Sky Island
mountains, 23 in the U.S. and 32 in Mexico, that reach up to 3,000
meters (10,000 feet) in elevation and support the most biodiverse oak
and pine communities in North America.\23\ The Sky Island region is
renowned for the highest mammal diversity in the United States,\24\ the
highest bird diversity in the interior of North America, and the
highest diversity of desert fish in the U.S. Southwest. Many of these
species are in danger of extinction--for example, of 36 original
species of native Arizona fish, one species is extinct and 20 more are
threatened or endangered, including species near proposed wall
construction like the Quitobaquito pupfish, Yaqui topminnow, Yaqui
chub, Yaqui catfish, and beautiful shiner.\25\
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\23\ McLaughlin, S.P. 2015. An overview of the flora of the Sky
Islands, southeastern Arizona: diversity, affinities, and insularity.
In: DeBano, L.F.; Ffolliott, P.H.; Ortega-Rubio, A.; Gottfried, G.J.;
Hamre, R.H.; and Edminster, C.B.; tech. coords. Biodiversity and
management of the madrean archipelago: the sky islands of southwestern
United States and northwestern Mexico. 1994 Sept. 19-23; Tucson, AZ.
Gen. Tech. Rep. RM-GTR-264. Fort Collins, CO: U.S. Department of
Agriculture, Forest Service, Rocky Mountain Forest and Range Experiment
Station: 60-70.
\24\ Warshall, P. 1995. Southwestern sky island ecosystems[1] . In:
LaRoe, E.T.; Farris, G.S.; Puckett, C.E.; Doran, P.D.; Mac, M.J.
editors. Our Living Resources: A Report to the Nation on the
Distribution, Abundance, and Health of U.S. Plants, Animals, and
Ecosystems. Washington, DC: U.S. Department of the Interior, National
Biological Service. 318-322. https://pubs.er.usgs.gov/publication/
70148108 [Accessed January 30, 2019].
\25\ US Fish and Wildlife Service 2019. ``San Bernardino National
Wildlife Refuge.'' https://www.fws.gov/refuge/san_bernardino/ [Accessed
January 30, 2019].
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Wide-ranging wildlife such as black bear, jaguar, mountain lion,
coati, white-tailed and Coues deer, javelina and many other species
must be able to move between Sky Islands to reach food, water and
mates. The proposed construction would sever the ecologically connected
Sky Island region in two making it impossible for wildlife to move
between Sky Islands in the U.S. and Mexico. Pathways for wildlife
spanning the Arizona-Mexico border are vital to the recovery of jaguar
and ocelot in the U.S. and the recovery and persistence of black bear
in Sonora. These corridors provide critical connections for wildlife of
the Sky Islands to move and respond to climate changes that are making
water more scarce and bringing more extreme and prolonged heat waves.
The unique nature of this region is reflected in the extensive
network of public land along the border including the Coronado National
Forest, the Coronado National Memorial, the San Pedro Riparian National
Conservation Area, and the San Bernardino National Wildlife Refuge.
For the past 23 months, from July 2017 to May 2019, Sky Island
Alliance has monitored borderlands wildlife movement with 24 remote
sensing cameras placed along the Arizona-Mexico border. The following
species have been documented moving in borderlands pathways: antelope,
jackrabbit, badger, bats, birds, black bear, black hawk, black-tailed
jackrabbit, bobcat, cliff chipmunk, coyote, desert cottontail, great
blue heron, great horned owl, grey fox, grey hawk, hog-nosed skunk,
hooded skunk, javelina, Mexican jay, mountain lion, mule deer, northern
flicker, raccoon, raven, reptiles, red-tailed hawk, ring-tailed cat,
roadrunner, rock squirrel, striped skunk, turkey, turkey vulture,
white-nosed coati, and white-tailed deer.\26\ CBP's proposed project
would harm each one of these species and many more that have yet to be
documented by severing critical movement corridors between sky island
mountain ranges in Arizona and Mexico.
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\26\ Bethel, Megan. 2019. Sky Island Alliance's Border Camera
Summary. Sky Island Alliance.
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San Pedro River, general flooding concerns:
CBP's proposal includes a section of proposed barrier that would
wall off the San Pedro River and floodplain. The San Pedro is the last
free-flowing, undammed desert river in the southwestern United States.
In 1988, Congress created the San Pedro Riparian National Conservation
Area (SPRNCA) as the country's first National Conservation Area to
protect this special resource. To date it is one of only two Riparian
National Conservation Areas in the nation. The San Pedro is one of the
most biologically diverse watersheds in the United States,\27\
providing habitat for a host of wildlife and millions of songbirds that
migrate through the area each year. According to the Bureau of Land
Management (BLM), the San Pedro River is ``a rare remnant of what was
once an extensive network of similar riparian systems throughout the
Southwest.'' \28\ With about 90 percent of the Southwest's riparian
ecosystems already degraded or destroyed, the San Pedro River is an
outstanding example of a health riparian community \29\ and has been a
focus area for conservation and restoration on both sides of the
border. CBP's proposed project is a direct threat to the San Pedro
River and the SPRNCA.
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\27\ Boykin, et. al. 2013. ``A national approach for mapping and
quantifying habitat-based biodiversity metrics across multiple
scales.'' In Ecological Indicators. October, 2013. pp. 139-147.
\28\ Bureau of Land Management. 2019. San Pedro Riparian National
Conservation Area. Department of the Interior. Accessed June 2019.
https://www.blm.gov/visit/san-pedro.
\29\ Sprouse, Terry. 2005. Water Issues on the Arizona-Mexico
border. Santa Cruz, San Pedro and Colorado Rivers. University of
Arizona Press.
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Once known as Beaver River, the San Pedro today supports but a
small population of reintroduced beaver. This population is found in
small pockets of habitat on both sides of the international border
stretching from the headwaters of the San Pedro in Mexico to the Gila
River in the U.S. The beaver were originally reintroduced in the U.S.
portion of the Lower San Pedro River and then found their way across
the border to Rancho Los Fresnos,\30\ where the dams of these once
extirpated rodents retain water that soaks into the ground, raising
water tables and nurturing trees and smaller plants.\31\ The presence
of beaver is an example of years of effort on the part of people on
both sides of the border working to enhance the ecosystem of the San
Pedro River. An impenetrable barrier across this river will divide the
beaver population in two and almost certainly lead to the decline of
beaver on both sides of the border and prevent any future
recolonization from one country to another.
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\30\ Smith, J. 2017. Up Against the Wall. BioGraphic.com. September
6, 2017. https://www.biographic.com/posts/sto/up-against-the-wall
[Accessed July 1, 2019].
\31\ New Mexico Department of Game and Fish. 2017. Wildlife Notes.
http://www.wildlife.state.nm.us/download/education/conservation/
wildlife-notes/mammals/Beaver.pdf [Accessed on July 1, 2019].
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The San Pedro is also a known wildlife corridor. Half of all
breeding bird species in North America are known to use the San Pedro
River corridor, along with 82 species of mammals and 43 species of
reptiles and amphibians.\32\ Camera monitoring of this river corridor
for 3 years in a single spot just north of the international border has
documented 1,165 instances of wildlife traveling this river pathway.
This effort has proven the San Pedro's importance for numerous species
including badger, bobcat, javelina, mountain lion, mule deer, raccoon,
several skunk species, turkey, and white-tailed deer, as they roam in
search of food, water, and mates.\33\
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\32\ Ibid. P. 16.
\33\ Sky Island Alliance 2019. Unpublished research.
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We have made numerous requests to obtain more information about the
type of structure planned for the San Pedro River section of the
proposed project. Despite our repeated requests, CBP has provided no
relevant information. While we know very little about the type of
barrier proposed for the floodplain, it is all but certain that any
structure installed here would pose an obstruction to the movement of
wildlife and unavoidably alter or dam the flow of water.
In 2007, DHS proposed a similar project to build a wall across the
San Pedro River. Federal land managers objected strenuously to these
plans, calling alarm to the environmental damage that would ensue and
the public safety risk such a structure would create as a flood danger.
In a memo dated October 4, 2007, the BLM evaluated DHS's prior proposal
to build a wall across the San Pedro River and floodplain, raising many
concerns, including the threat of debris build-up against the barrier
and obstruction of streamflow during floods.\34\ The BLM noted that DHS
entirely failed to consider debris buildup as a factor in their flood
modeling--a factor which is almost certain to occur in any flood event.
The 2007 memo stated, ``Existing structures (remarkably similar to
proposed design) have considerable problems with debris build-up.''
\35\
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\34\ Memo: 2007. BLM Hydrologic Issues and Concerns, Project: Dept.
of Homeland Security (``DHS'') Pedestrian Fence, Location: San Pedro
River Basin, BLM.
\35\ Ibid. P. 2.
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The fact that DHS failed to consider the basic and predictable
factor of debris build-up in flood modeling suggests a level of
negligence or ignorance in project planning that could seriously harm
wildlife and landowners in the area if the project moves forward.
Environmental factors have not changed in the 12 years since this
project was originally proposed; all of the concerns raised by the BLM
in 2007 remain relevant today and are still entirely unanswered in the
project proposal and communications with DHS/CBP staff.
The same 2007 BLM memo also voices concern of how the proposed wall
would alter streamflow, natural floods, and wildlife habitat on the San
Pedro, stating,
``The timing and intensity of seasonal flood flows in the San
Pedro River are essential for maintaining riparian function as
well as recharging the alluvial aquifer. Regardless of the
maintenance commitments by Border Patrol, the proposed/existing
fence could inadvertently act as a flood control structure
altering natural flood characteristics.'' \36\
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\36\ Ibid. P. 1.
If DHS proceeds with this border wall proposal and installs a
structure in the San Pedro River and floodplain, it seems all but
unavoidable that the flow of the river would be altered. Such actions
would create a dam-like structure that would dramatically increase the
flood risk and degrade the natural riparian function of the San Pedro
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ecosystem.
A 2012 government-contracted study examined the impacts of a border
wall installed across ephemeral washes in Organ Pipe Cactus National
Monument and Coronado National Memorial, determining that the barrier
there was causing significant and consistent alterations to channel
flow and geomorphology and harming native vegetation and wildlife. The
report warned:
``The obstruction of flow and sediment transport may have major
consequences for stream morphology including lateral and
vertical stream instability, as well as increased risk of over
bank flows. Changes in channel function can have direct impacts
on riparian vegetation and wildlife communities within the
affected area. In addition, changes in channel morphology may
increase the risk of fence failure due to erosion or hydraulic
forces.'' \37\
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\37\ Natural Channel Design, Inc. 2012. 2011 Monitoring Report:
Channel Morphology Related to the Pedestrian Fence. Organ Pipe Cactus
National Monument and Coronado National Memorial. April 2012.
The report also warns of the continued maintenance and restoration
burdens the border barrier places upon federal land managers, stating
``The fence will continue to disrupt stream function and create the
need for long term maintenance of the channels near the fence.'' \38\
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\38\ Ibid. P. 57.
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If built across the San Pedro River and floodplain, the new wall
would create a debris dam that could result in a structural collapse,
as happened in Organ Pipe Cactus National Monument and near Nogales,
Arizona. These prior flood events provide a concerning example of what
could occur on the San Pedro if the proposed project is allowed to move
forward. Prior border wall-caused flood events in Arizona paint a
deeply troubling picture of how CBP has neglected to consider obvious
public safety and environmental dangers despite explicit and direct
warning from federal agencies and the public.
On July 12, 2008, just months after a 5.5-mile stretch of border
wall was installed in Organ Pipe Cactus National Monument, the new
border barrier caused debris buildup and severe flooding during a
summer monsoon. The amount of rainfall during that storm (1-2 inches)
was typical of summer storms in southern Arizona,\39\ yet this normal
storm resulted significant damage to government infrastructure and
wildlife habitat due to the newly constructed border wall. This
flooding occurred despite the fact that the wall was designed with
grates across the wash intended to mitigate flood events. Clearly CBP's
flood mitigation attempt failed.
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\39\ National Park Service. 2008. Effects of the International
Boundary Pedestrian Fence in the Vicinity of Lukeville, Arizona, on
Drainage Systems and Infrastructure, Organ Pipe Cactus National
Monument, Arizona. Department of the Interior. Prepared August 2008. P.
9.
Before CBP installed the barrier at Organ Pipe Cactus National
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Monument in 2008, NPS managers expressed the following concerns:
``The fence would impede the conveyance of floodwaters
across the international boundary.''
``Debris carried by flash floods would be trapped by the
fence, resulting in impeded flow and clean-up issues.''
``Backwater pooling would occur due to impeded flow.''
``Lateral flow due to backwater pooling would cause
environmental damage as well as damage to patrol roads.''
``Significant increase in surface water depths (or rise in
water elevation) would occur as a result of impeded flow,
causing adverse affects on downstream and upstream
resources and infrastructure in [the monument] and
Mexico.'' \40\
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\40\ Ibid. P. 7.
In response, CBP issued a Finding of No Significant Impact (FONSI)
stating that the barrier would ``not impede the natural flow of
water,'' and would be ``designed and constructed to ensure proper
conveyance of floodwaters and to eliminate the potential to cause
backwater flooding on either side of the U.S.-Mexico border.'' \41\
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\41\ U.S. Border Patrol, Tucson Sector. 2007. Final environmental
assessment for the proposed installation of 5.2 miles of primary fence
near Lukeville, Arizona. U.S. Border Patrol, Tucson Sector, Tucson,
Arizona.
CBP's predictions in the 2008 FONSI have turned out to be patently
false. In an analysis of the flooding that occurred as a result of the
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border barrier in Organ Pipe Cactus National Monument, NPS stated:
``The pedestrian fence impeded the natural flow of water and
did not properly convey floodwaters during the July 12 storm. .
. Debris blockages formed at the upstream side of the fence,
restricting water flow and causing significant water elevation
rise. . . The foundation wall of the pedestrian fence stopped
subsurface sediment flow, which added to the water elevation
rise. Backwater flooding occurred in most washes.'' \42\
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\42\ National Park Service. 2008. Effects of the International
Boundary Pedestrian Fence in the Vicinity of Lukeville, Arizona, on
Drainage Systems and Infrastructure, Organ Pipe Cactus National
Monument, Arizona. Department of the Interior. Prepared August 2008. P.
4.
The analysis determined that the barrier CBP installed did not meet
the requirements set by the FONSI. As a result, NPS managers concluded
that a host of short- and long-term impacts would continue to occur,
resulting in damage to wildlife habitat, channel morphology, and NPS
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infrastructure, including:
``Accelerated scour below the pedestrian fence will damage
the structural integrity of the vehicle barrier.''
``Floodwaters will flow laterally along the pedestrian
fence and on the patrol road. These flows will result in
erosion and scour above and below the foundation wall of
the fence, including areas hundreds of feet outside
existing drainage channels. As a consequence, the need for
routine maintenance and repairs of the patrol road and
vehicle barrier will increase.''
``The patrol road associated with the pedestrian fence
will change vegetation in OPCNM by changing rainfall
retention or runoff along the northern road edge.''
``Riparian vegetation will change in response to increased
sedimentation.''
``Channel morphology and floodplain function will change
over time.''
``Channelized waters will begin a gullying process that
has the potential to transform land surfaces in the
affected watersheds.'' \43\
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\43\ Ibid. P. 16.
All of these concerns are clearly relevant to the proposed project
at the San Pedro and in other locations where the barrier would cross
streams and washes. None of these concerns have been addressed in CBP's
notice to comment or phone/email conversations with CBP staff.
The damage that ensued at Organ Pipe Cactus National Monument is a
clear example of what happens when border barriers are constructed
across washes without proper planning, outreach and study. We note that
the San Pedro River has a consistent history of much larger flood
events than have ever occurred at Organ Pipe Cactus National Monument.
According to a Federal Emergency Management Agency Flood Insurance
Study, the 100-year peak flow of the San Pedro River just north of the
border is estimated to be 22,300 cfs.\44\ Climate change is increasing
both the frequency and intensity of flood events, making the threat of
flooding even more severe.
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\44\ Federal Emergency Management Agency Flood Insurance Study.
2016. Cochise County and incorporated areas.
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No structure built in the San Pedro Floodplain would be able to
withstand a flood event of this magnitude. Such a flood would result in
a structural collapse of the barrier, causing a wall of water to flood
into the SPRNCA and downstream. This would be devastating for wildlife
habitat, local landowners, and State and County infrastructure. In
2014, just north of the border, San Pedro floodwaters washed over
Arizona State Route 92, causing road damage and forcing its
closure.\45\ This occurred just 3 miles downstream of the proposed
project area. If future floods are amplified and exacerbated by CBP's
proposed project, as data indicate they would be, State Route 92 may be
washed out entirely. Building a wall across the San Pedro could result
in a life-threatening public safety risk. This warrants careful study,
including third-party flood modeling and a transparent process where
local and state agencies and the public can provide meaningful comment.
Anything less would result in significant harm to the environment and
public safety.
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\45\ Arizona Department of Emergency and Military Affairs. 2014.
High water in San Pedro River closes SR 92 south of Sierra Vista.
Accessed June 2019. https://ein.az.gov/emergency-information/emergency-
bulletin/high-water-san-pedro-river-closes-sr-92-south-sierra-vista.
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Failure to Respect Tribal Sovereignty, Consult with Tribal Governments
CBP has failed to meaningfully consult with tribal governments in
the planning process, despite the clear harms the proposed border wall
construction would cause to cultural resources, ancient traditions,
tribal sovereignty, and modern indigenous communities. Executive Order
13175 requires federal agencies to consult and collaborate with
affected tribes on federal policies and actions that have a substantial
direct effect on tribes in a ``government-to-government''
relationship.\46\ In this case, it is clear that CBP has failed to
consult with tribal governments, and specifically the Tohono O'odham
Nation, as sovereign and coequal entities. This is unacceptable and
must be addressed before the project moves forward.
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\46\ Executive Order 13175. 2000. Coordination and Consultation
with Indian Tribal Governments. November 6, 2000.
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The Tohono O'odham people and their ancestors have inhabited lands
from the Gila River area south to the Sea of Cortez for thousands of
years. Tribal members have experienced the negative consequences of a
border imposed upon them for generations. The Tohono O'odham
Legislative Council passed a formal resolution opposing border wall
construction on February 8, 2017.\47\ The resolution condemned the
Trump administration's plans to build a border wall on the grounds that
a wall would prevent Tohono O'odham members from making traditional
border crossings for ceremonial and religious purposes, prevent
wildlife from conducting migrations essential for their survival, and
destroy saguaro cactus and other culturally significant plants, among
many other reasons.
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\47\ Tohono O'odham Legislative Council. 2017. Resolution No. 17-
053, Border Security and Immigration Enforcement on the Tohono O'odham
Nation. February 8, 2017.
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The Tohono O'odham government has clearly and unambiguously
objected to border wall construction, yet CBP has made no apparent
effort to work with the tribe to remedy these concerns. Instead, the
agency has elected to waive laws like the Native American Graves
Protection and Repatriation Act, the American Indian Religious Freedom
Act, the National Historic Preservation Act, and the Archeological
Resources Protection Act in order to further strip away any abilities
that the Tohono O'odham and other indigenous nations would normally
have to protect their cultural resources, traditional heritage, and
sovereignty.
Federal agencies, including DHS, have a demonstrably poor track
record when it comes to tribal consultation, even under normal
circumstances where laws and guidelines are followed. A 2019 Government
Accountability Office (GAO) report found that most government agencies,
including DHS,
``do not adequately consider the tribal input they collect
during tribal consultation when making decisions about proposed
infrastructure projects. These comments included perceptions
that agencies consult to `check a box' for procedural
requirements rather than to inform agency decisions.'' \48\
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\48\ U.S. Government Accountability Office (GAO). 2019. TRIBAL
CONSULTATION Additional Federal Actions Needed for Infrastructure
Projects. GAO-19-22. March 2019. https://www.gao.gov/assets/700/
697694.pdf.
In this case, DHS has waived each and every law that sets
requirements for tribal consultation, indicating that even the
consultation requirements found inadequate by the GAO will not be
adhered to. DHS's insistence on waiving laws that protect cultural
resources and tribal sovereignty suggests that CBP has no interest in
meaningful consultation with indigenous nations like the Tohono
O'odham, and certainly does not view them as sovereign and coequal
governments. This is extremely concerning as most of the land along the
U.S.-Mexico border is traditional territory for myriad indigenous
tribes, full of rich cultural resources and archeological records as
well as modern tribal nations and communities. CBP's ongoing failure to
properly consult with indigenous nations and insistence on waiving the
laws that protect these communities will result in irreparable damage
to cultural and archeological resources along the border and serious
harm to the U.S. government's relationships with coequal indigenous
nations.
We are specifically concerned about the proposed project's clear
potential to impact the Tohono O'odham's access to traditional lands
and sacred sites, including tribal members' ability to conduct the
ceremonial salt pilgrimage--an ancient ritual that, according to the
O'odham, has occurred since time immemorial.\49\ The ceremonial salt
pilgrimage passes through Organ Pipe Cactus National Monument and
crosses the border near Quitobaquito Spring, where currently only
vehicle barriers exist. If the proposed wall is constructed,
participants would be forced to scale the wall, or to cross the border
through a Port of Entry many miles away. The proposed project would
place an extreme and unacceptable burden on ceremony participants and
threaten the future of this ceremony that has occurred for millennia.
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\49\ Tohono O'odham Legislative Council. 2007. Resolution No. 07-
714, Authorizing Delegation to Explore Means of Preserving Salt
Pilgrimage Sites. November 9, 2007.
In 2007, the Tohono O'odham Legislative Council passed a resolution
affirming unlimited and unrestricted access to sacred sites in the U.S.
and Mexico for traditional purposes like the ceremonial salt
pilgrimage.\50\ Just weeks ago, in a direct response to CBP's proposed
project, the Traditional O'odham Leaders of Sonora passed a resolution
opposing border wall construction proposed by CBP on the grounds that
it would threaten the future of the ceremonial salt pilgrimage. The
resolution states:
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\50\ Tohono O'odham Legislative Council. 2007. Resolution No. 07-
714, Authorizing Delegation to Explore Means of Preserving Salt
Pilgrimage Sites. November 9, 2007.
``The ceremonial salt pilgrimage is a central part of the
O'odham himdag that has occurred since time immemorial. The
salt pilgrimage passes through lands now considered the Organ
Pipe Cactus National Monument, the EI Pinacate-Gran Desierto de
Altar Biosphere Reserve, and the Alto Golfo del California
Biosphere Reserve. . . On May 15th, before consulting with the
Tohono O'odham or obtaining approval from tribal leaders, the
U.S. Department of Homeland Security issued a $646,000,000
construction contract to build border walls through these
areas. . . Building a border wall through Organ Pipe Cactus
National Monument and Cabeza Prieta National Wildlife Refuge
would cut across the route of the ceremonial salt pilgrimage
and damage Quitobaquito spring, a sacred desert oasis used
during the pilgrimage. The plans for a new wall would make it
impossible to carry out the salt ceremony and threaten to end
this sacred tradition forever.'' \51\
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\51\ Traditional O'odham Leaders of Sonora. 2019 Acta/Resolution
passed June 16, 2019.
The NPS has identified the ``Continuum of Human History'' as one of
the five key ``Fundamental Resources or Values'' of Organ Pipe Cactus
National Monument.\52\ The salt pilgrimage and continued use of
Quitobaquito spring is specifically mentioned in the Monument's
foundation document, which states ``many of the monument's cultural
sites, objects, landscapes, and natural resources remain important
touchstones that contribute to group identity and heritage.'' \53\ A
2017 report by the NPS states: ``continued use of these lands for
spiritual and cultural purposes should be celebrated as an implicit
value to wilderness character; facilitating these uses should never be
considered a burden.'' \54\ Ancestors of the Tohono O'odham have
inhabited these lands and participated in rituals like the ceremonial
salt pilgrimage for thousands of years. CBP's proposed project could
recklessly put an end to this sacred ritual forever.
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\52\ National Park Service. 2016. Foundation Documents: Organ Pipe
Cactus National Monument. Department of the Interior.
\53\ Ibid. P. 6.
\54\ National Park Service. 2017. Organ Pipe Cactus Wilderness:
Wilderness Character Narrative and Baseline Monitoring Assessment,
Building Blocks for Wilderness Stewardship. Department of the Interior.
March 2017.
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Economic Harm to Local Economies
CBP's proposed project would result in irreversible damage to the
borderlands environment, public lands, and wildlife enjoyed by millions
of visitors every year. The damage inflicted by this project would
detract from visitor experiences in a multitude of ways including the
visual scar caused by such a massive structure, the noise and pollution
produced during construction, the light pollution detracting from dark
night skies, and of course the myriad harms caused to wildlife species
that so many visitors flock to Arizona's public lands to see. The
proposed project would damage or destroy numerous renowned Arizona
tourist destinations including two national monuments, two national
wildlife refuges, several wilderness areas, and a national conservation
area. Many of these areas have received federal protection through
Congressional designation specifically because of their spectacular
values as natural resources, wildlife habitat, and wild places for
public enjoyment.
According to the NPS, 260,000 people visited Organ Pipe Cactus
National Monument in 2018, contributing $23.4 million dollars to the
local economy and supporting 226 jobs.\55\ Coronado National Memorial
also received significant public visitation with 103,000 visitors
contributing $7.7 million and 92 jobs to the economy of the surrounding
area.\56\ While data were not available for wildlife refuges and
wilderness areas that would be harmed by this project, these federally
protected public lands also receive significant visitation that
bolsters local economies and creates sustainable jobs. Before CBP moves
forward with planning or construction, the agency must conduct a full
assessment of how the proposed project would harm local economies and
eliminate long-term sustainable jobs.
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\55\ National Park Service. 2019. 2018 National Park Visitor
Spending Effects: Economic Contribution to Local Communities, States,
and the Nation--Organ Pipe Cactus National Monument. U.S. Department of
the Interior. Natural Resource Report NPS/NRSS/EQD/NRR--2019/1922.
\56\ National Park Service. 2019. 2018 National Park Visitor
Spending Effects: Economic Contribution to Local Communities, States,
and the Nation--Coronado National Memorial. U.S. Department of the
Interior. Natural Resource Report NPS/NRSS/EQD/NRR--2019/1922.
Broad Public Opposition to Border Walls in Arizona and throughout the
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Borderlands
It is also important to note that the overwhelming majority of
borderland residents, the majority of Arizonans, and 60% of the
American public oppose the border wall.\57\ Opposition to the border
wall in border communities is even higher than in the rest of the
country, with polls showing that 72% of borderland residents oppose the
border wall.\58\ In an explicit rejection of CBP's proposed border wall
construction, 39 cities, counties, and tribal nations across the
borderlands have passed ``No Border Wall'' resolutions.\59\
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\57\ CBS News. 2018. Americans Continue to Oppose U.S.-Mexico
Border Wall: CBS News Poll. March 12, 2018.
\58\ Cronkite News. 2016. Border Residents: Don't Build a Wall
Between Cities. July 17, 2016.
\59\ No Border Wall Coalition. 2018. The Opposition webpage.
Accessed January, 2019. https://noborderwalls.org/opposition/.
Many Arizona communities that would be harmed by the proposed
project have already passed resolutions opposing the construction of
more border walls including Pima County, the Tohono O'odham Nation, the
Tohono O'odham Leaders of Sonora, the Inter Tribal Association of
Arizona, the City of Tucson, and the Town of Patagonia. Each one of the
39 resolutions in opposition of the border wall should be considered by
CBP as statements of direct opposition to the proposed project and all
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other border wall construction projects.
CBP often argues that the border wall will benefit border
communities the most. If that were true, then it would be expected that
border communities and their elected officials would support border
wall construction. The broad and vocal opposition from border
communities demonstrates a different reality. The unambiguous
opposition to the border wall expressed by communities across the
borderlands shows that border communities neither want nor need
additional miles of border walls. CBP has continually attempted to
paint border communities as unsafe places while claiming that the
construction of border barriers will reduce crime. We remind CBP that
crime rates in border communities are consistently lower than the
national average.\60\
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\60\ CATO Institute. 2019. Crime Along the Mexican Border Is Lower
Than in the Rest of the Country. January 8, 2019. https://www.cato.org/
blog/crime-along-mexican-border-lower-rest-country.
The opposition to border wall construction from local elected
officials and the public at large reflects just how damaging this
project would be to local communities. Every single Congressional
Representative in the U.S. House with a district on the border has
taken a formal stance against the border wall.\61\ This includes
Congresspersons Raul Grijalva and Ann Kirkpatrick, who represent the
districts where the proposed Arizona projects would take place. A
Tucson City Council representative even submitted his own letter of
opposition to the project calling alarm to the damage the proposed
border walls would cause to southern Arizona's natural resources and
ecotourism economy.\62\
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\61\ CBS News. 2019. Every congressperson along the southern border
opposes border wall funding. Kate Smith. January 8, 2019. https://
www.cbsnews.com/news/trumps-border-wall-every-congressperson-along-
southern-border-opposes-border-wall-funding-2019-1-8/.
\62\ Tucson City Council Ward 3 Representative Paul Durham. May 17,
2019. Letter to U.S. Customs and Border Protection.
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The fact that CBP has made no effort to host public forums or
conduct meaningful or bilingual public outreach suggests that CBP is
making an intentional effort to suppress public input on this project.
At a bare minimum, CBP must consult extensively with local communities
by preparing a full EIS complete with public meetings and ample
opportunities for the public and elected officials to understand the
impacts and weigh in on the implications of the project before it moves
forward in the planning process.
Unproven Purpose and Need, Inefficacy of Border Barriers
CBP's notice to comment fails to describe a purpose and need for
the project and supplies no language as to why such an expensive and
destructive project is necessary in the first place. We remind CBP that
at this point in time, there is no conclusive data to suggest that
border barriers actually reduce levels of undocumented border
crossings. In fact, a 2017 GAO report noted that there is currently no
way of documenting the role of border barriers in impeding border-
crossers. The report recommended that CBP
``develop metrics to assess the contributions of pedestrian and
vehicle fencing to border security along the southwest border
and develop guidance for its process for identifying, funding,
and deploying [Tactical Infrastructure] TI assets for border
security operations.'' \63\
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\63\ U.S. Government Accountability Office. 2017. Southwest Border
Security: Additional Action Needed to Better Assess Fencing's
Contributions to Operations and Provide Guidance for Identifying
Capability Gaps. GAO-17-331.
Until CBP develops these metrics to assess the efficacy of border
barriers, it is inappropriate to suggest that the deployment of
additional border barriers will have any meaningful impact on border
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crossings.
Border barriers block most species of animals, impede natural flows
of water, and even alter plant dispersal, but there is no evidence they
stop people from crossing. A 2014 study of activity around border
barriers in natural areas showed that terrestrial mammals were found in
higher numbers in locations where no border barriers were present. The
authors, however, found no difference in the number of border-crossing
humans detected between areas with and without barriers, suggesting
that barriers are not effective at deterring migrants, but do affect
wildlife populations.\64\
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\64\ McCallum J.W., J.M. Rowcliffe, I.C. Cuthill. 2014.
Conservation on International Boundaries: The Impact of Security
Barriers on Selected Terrestrial Mammals in Four Protected Areas in
Arizona, USA. PLoS ONE 9(4): e93679. doi:10.1371/journal.pone.0093679.
The 2017 GAO report that establishes CBP has not proven border
barriers to be an effective means for deterring border crossings also
sheds light on CBP's overarching tactics of border barrier construction
and border militarization. The report outlines CBP's strategy of border
wall construction as a tactic employed not necessarily to stop border
crossings, but as an attempt ``to divert illicit cross-border
activities into more remote or rural environments, where illegal
entrants may require hours or days to reach the nearest U.S.
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community.''
This tactic has proven ineffective at deterring border crossings.
It has also led to the deaths of thousands of migrants who have been
pushed into remote reaches of borderland deserts and perished in the
elements while attempting to cross the border. CBP's own statistics
show that more than 7,000 people have died crossing the border between
1998 and 2017,\65\ though this count only reflects bodies that have
been found by Border Patrol and therefore is widely considered to be
much lower than the actual number of deaths.\66\
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\65\ U.S. Border Patrol. 2017. Southwest Border Deaths by Fiscal
Year. Southwest Border Sectors.
\66\ Ortega, Bob. 2018. Border Patrol Failed to Count Hundreds of
Migrant Deaths on U.S. Soil. CNN Investigates. Tuesday May 15, 2018.
https://www.cnn.com/2018/05/14/us/border-patrol-migrant-death-count-
invs/index.html.
From its conception, the construction of border barriers and
militarization of border communities has been a part of a larger
strategy to intentionally push border-crossers into remote desert
environments where many die due to harsh conditions. This policy has
led to a crisis of death and disappearance on our southern border.
While it is unlikely that CBP's proposed project will actually deter
border crossings, it is conceivable that new miles of border walls and
increased border militarization could push migrants into harsher
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terrain and lead to their deaths.
Environmental Justice
Environmental justice is defined by the Environmental Protection
Agency (EPA) as ``The fair treatment and meaningful involvement of all
people regardless of race, color, culture, national origin, income, and
educational levels with respect to the development, implementation, and
enforcement of protective environmental laws, regulations, and
policies.'' Executive Order 12898 directs that ``each Federal agency
shall make achieving environmental justice part of its mission by
identifying and addressing, as appropriate, disproportionately high and
adverse human health or environmental effects of its programs,
policies, and activities on minority populations and low-income
populations.'' \67\
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\67\ Executive Order 12898, Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations. 59 Fed. Reg. 32 (Feb. 16, 1994).
Significant environmental justice concerns have already arisen in
the planning process of the proposed project though CBP's failure to
send notices in Spanish in an area where a significant portion of the
public are Spanish-speaking. Failure to disseminate Spanish language
notices suggests an intentional attempt to exclude and discriminate
against the very populations that CBP is obligated to engage. For this
and other projects, CBP should strive to actively engage all community
members, regardless of race, culture, national origin, income and
educational levels, and minimize impacts on marginalized populations in
---------------------------------------------------------------------------
accordance with Executive Order 12898.
We ask that the planning process for this project proceed no
further until CBP can demonstrate that a meaningful and transparent
effort has been made to obtain public comment from a wide range of
community members, including minority and low-income populations, the
neighboring Tohono O'odham Nation, and any other indigenous nations
that have traditional claims within or near the proposed project area.
Because vast portions of the project area are within traditional Tohono
O'odham lands, CBP must work extensively with Tohono O'odham Nation in
a coequal government-to-government relationship before breaking ground.
CBP's proposed project will likely impact air and water quality of
neighboring communities. The proposed project is of significant scale
and will involve extensive concrete batching, heavy machinery
operation, and severe ground disturbance, all of which would likely
emit particulate dust and pollutants into air and water and endanger
the health of neighboring communities. These public health hazards
would adversely and disproportionately impact human health of minority,
low-income, and indigenous populations in violation of Executive Order
12898.
We remind CBP that without the preparation of an EIS under NEPA it
is impossible to fully understand and analyze the true public health
and environmental justice implications of CBP's proposed project. There
is a clear framework for assessing environmental justice impacts within
the NEPA process. The completion of a NEPA-compliant EIS for the
proposed project would illuminate these concerns, mitigate potential
harms, and help inform the best path forward.
DHS's use of the REAL ID Act Section 102 waiver to exempt itself
from laws like NEPA, the Clean Water Act, the Clean Air Act, and others
has denied residents in border communities the same critical public
health and environmental protections that communities everywhere else
in the nation receive as a basic right. The very purpose of these laws,
and of Executive Order 12898, is to protect communities most at risk
and ensure they receive the same protections and rights as all other
Americans. Each time DHS chooses to issue a waiver, it is low-income
minority populations who suffer the most. As such, the May 15, 2019
waiver of 41 laws for this project is profoundly undemocratic and
raises significant environmental justice concerns. In this and other
projects, DHS must work to actively engage stakeholders and respect our
nation's laws, rather than using expired provisions of the REAL ID Act
to deny legal rights to low-income, minority, and indigenous
communities.
Conclusion
We urge CBP to carefully review and respond to all concerns raised
within this letter and to comply with all applicable federal laws
before moving forward with the planning and execution of this project.
As discussed above, we are extremely concerned that CBP is not
conducting this project in compliance with NEPA or other relevant laws.
CBP's vague and inadequate notice to comment, which was sent only to
select individuals of the agency's choosing, is no substitute for
meaningful public comment and is wholly inadequate to meet public
consultation and informed decision-making requirements. Because of
this, and the additional reasons detailed within the contents of this
letter, CBP must cease all efforts toward constructing border barriers
in Arizona until these numerous and significant issues are resolved.
Sincerely,
American Bird Conservancy ProgressNow New Mexico
Center for Biological
Diversity Rachel's Network
Coalicion de Derechos
Humanos Southern Border Communities Coal.
Colibri Center for Human
Rights Sierra Club
Defenders of Wildlife Sky Island Lodge
Great Old Broads for
Wilderness Sky Island Alliance
Green Valley/Sahuarita
Samaritans Southwest Environmental Center
Northern Jaguar Project St. Francis in the Foothills
National Parks Conservation
Assoc. Tucson Audubon Society
National Wildlife Refuge
Association Wildlands Network
Nuestra Tierra Conservation
Project
______
NATIONAL PARKS CONSERVATION ASSOCIATION
July 3, 2019
U.S. Customs and Border Protection
U.S. Border Patrol Headquarters
1300 Pennsylvania Ave 6.5E Mail Stop 1039
Washington, DC 20229
Public Comment Re: Pima and Cochise Counties Border Infrastructure
Projects
Dear Customs and Border Protection:
Since 1919, National Parks Conservation Association (NPCA) has been
the leading voice in protecting and enhancing our National Park System.
On behalf of our more than 1.3 million members and supporters
nationwide, we write to express our concerns with U.S. Customs and
Border Protection's (CBP) proposed border barrier project in Pima and
Cochise Counties, especially related to Organ Pipe Cactus National
Monument and Coronado National Memorial. These national parks are
connected to the lands and communities that surround them, and the
impacts of border activities must be considered comprehensively.
Throughout the planning of this project, it has been clear that
little to no consideration has been given to the government's
responsibility to our national parks. Congress created the National
Park Service (NPS) in 1916 with a stated purpose ``to conserve the
scenery and the natural and historic objects and the wild life therein
and to provide for the enjoyment of the same in such manner and by such
means as will leave them unimpaired for the enjoyment of future
generations.'' \1\ CBP's proposal to build an 18-to-30 foot bollard
wall through nearly the entire border of Organ Pipe and a portion of
Coronado undermines the mission and purpose of the NPS, and does so
without providing the Park Service and the public with meaningful
opportunities to engage in the planning process.
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\1\ 16 U.S.C. Sec. 1.
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Irreplaceable Natural and Cultural Resources
Organ Pipe Cactus National Monument
Organ Pipe Cactus National Monument was created in 1937 to protect
its namesake plant and a scenic, biologically rich portion of the
Sonoran Desert. The park is home to 31 species of cactus, multiple
vulnerable endangered species and centuries of human history. But this
unique landscape is also unnaturally bisected by border barriers.
Vehicular barriers run along Organ Pipe's 30-mile border and five miles
of 15-foot pedestrian wall flank the Lukeville Port of Entry.
The construction of a 30-foot wall, along with associated roads,
lights and clearing, across the entirety of this park landscape will be
devastating to the ecosystem. Dozens of wildlife species would be
unable to move freely through the landscape in search of food, water
and mates. Among the wildlife that may be affected are bobcats,
coyotes, endangered desert tortoises, javelinas and mountain lions.
Endangered bats and migrating birds will be disrupted by the clearing
around the wall, which will eliminate cover and create a place where
predators can easily capture prey. The proposed bright lights, which
will likely be on all night, may further disrupt bat migration and
confuse other wildlife.
These impacts will be felt across the park ecosystem, however one
important location to note specifically is Quitobaquito Springs, a
desert oasis near the border that hosts two endangered species, the
Quitobaquito pupfish and Sonoyta mud turtle. While it is difficult to
determine based on the basic map provided for this comment period, the
expanded wall will likely be within a couple hundred feet of this pond,
changing flood patterns in the area and damaging water quality. In the
desert, water is critical and additional wall would prevent wildlife
species from using a water source they have relied on for millennia.
Together with neighboring Cabeza Prieta National Wildlife Refuge,
Organ Pipe also provides habitat for the endangered Sonoran pronghorn.
Over time, human activity shrunk and disturbed their habitat and then a
drought in 2002 brought the population in the U.S. down to around 20
individuals. A captive breeding program by the Fish and Wildlife
Service has helped the population successfully rebound but the Sonoran
pronghorn remains on the endangered species list.\2\ While border
activities were not the sole reason for the species decline, increased
activities or construction may lead to increased negative impacts on
the recovery of the species. And a wall will cut the US population off
from their counterparts on the Mexican side of the border.
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\2\ U.S. Fish and Wildlife Service, ``Sonoran pronghorn
(Antilocapra americana sonoriensis).'' https://ecos.fws.gov/ecp0/
profile/speciesProfile?sId=4750.
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In addition to the impacts on wildlife and the desert ecosystem, a
wall through Organ Pipe will significantly degrade the visitor
experience. A drive to Quitobaquito from Lukeville along the road that
parallels the monument's southern border is now a pleasant outing
through the rich Sonoran vegetation of the desert with occasional
interesting sights of human activity in Mexico just across the border
and continuous views of the protected desert mountains further south.
To be flanked by a continuous 30-foot wall with 60 feet of scraped
desert in front of it would be a whole different, and much degraded,
experience. Rather than the rich, peaceful traditions embodied in the
U.S. Mexico-border region, monument visitors will instead experience
the militarization policies the current administration is pushing
across the region. From the major campground in Organ Pipe, overnight
visitors can see Lukeville and a long stretch of the border. In the
future, this view will be obstructed by 30 feet of wall during the day
and bright lights in the middle of the desert at night. In 2018, park
visitation drove $16.2 million in spending on hotels, food and other
amenities.\3\ Declines in visitor experience will drive these numbers
down and certainly negatively impact the local economy.
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\3\ National Park Service, ``Visitor Spending Effects--Economic
Contributions of National Park Visitor Spending.'' https://www.nps.gov/
subjects/socialscience/vse.htm.
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Coronado National Memorial
Coronado National Memorial was established to commemorate and
interpret an expedition led by Francisco Vazquez de Coronado. The
arrival of the expedition--with its contingents of Europeans, Aztecs,
Franciscan monks, servants and slaves--forever changed the cultural
landscape of northwestern Mexico and the American Southwest.\4\ The
park preserves a portion of the landscape the expedition is thought to
have crossed and works to help visitors understand how that history is
still felt today. It is a story that our two countries experienced
together, a common ground that the border wall cuts straight through.
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\4\ National Park Service, ``Coronado National Memorial.'' https://
www.nps.gov/coro/learn/historyculture/index.htm.
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In addition to protecting part of our cultural heritage, Coronado
provides habitat critical for the endangered jaguar.\5\ Sightings of
the jaguar in the United States are rare. The bulk of the population is
in Mexico and while some individuals have made their way into the U.S.
on their own, all of them have been male. Those males will need to
return to Mexico to breed until a female establishes herself on the
U.S. side of the border. Existing border barriers increase the
challenge of transiting between the two countries and additional
barriers or border activity will only impede the jaguar population's
migration back into the U.S.
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\5\ U.S. Fish and Wildlife Service, ``Jaguar (Panthera onca).''
https://ecos.fws.gov/ecp0/profile/speciesProfile?sId=3944.
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Located 90 miles from the closest major airport in Tucson, Arizona,
Coronado's 103,000 park visitors spent an estimated $6.1 million in the
local region in 2018.\6\ A trip to this monument usually includes a
stop at Montezuma Pass for the amazing views both east and west, views
that are already compromised by the permanent Border Patrol activity at
the pass and seeing the current barriers along the border. Continued
expansion of the wall through the park will not only decrease its
environmental and cultural character, it will further degrade these
views and undermine the economic power of the park.
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\6\ National Park Service, ``Visitor Spending Effects--Economic
Contributions of National Park Visitor Spending.'' https://www.nps.gov/
subjects/socialscience/vse.htm.
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Environmental Damage without Proof of Success
The existing pedestrian wall at Organ Pipe was supposedly designed
to accommodate a 100-year flood and would not impede the natural flow
of water or cause backwater flooding. In July 2008, the wall was put to
the test. A summer storm delivered up to two inches of rain to the park
in about 1.5 hours. According to the Park Service,\7\ this type of
storm occurs every three to five years. Washes in the park drained
directly into the border barriers. Silt and debris were caught by the
wire mesh wall, resulting in high water marks up to seven feet,
flooding of local businesses and a disturbed habitat once the
floodwaters receded--all impacts the wall was designed to prevent.
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\7\ National Park Service. Effects of the International Boundary
Pedestrian Fence in the Vicinity of Lukeville, Arizona, on Drainage
Systems and Infrastructure, Organ Pipe Cactus National Monument,
Arizona. Ajo, AZ: 2008. https://www.nps.gov/orpi/learn/nature/
loader.cfm?csModule= security/getfile&PageID=2147897.
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NPS has been protecting the landscape at Organ Pipe for over 80
years. They know this place intimately. They are the experts. And yet
their expertise had no role in the major construction project along the
park's border. If the Park Service had been consulted, CBP would likely
have received accurate information about the frequency and magnitude of
flooding that can occur in the desert and could have made smarter
decisions about wall construction.
Such interagency cooperation did not occur then and is unlikely to
occur moving forward due to the waiver authority provided to the
Department of Homeland Security (DHS) through the Real ID Act of 2005.
This authority has prevented NPS, other federal land managers and the
public from participating in decision-making processes for construction
along the border. DHS has already chosen to waive 41 laws--including
the NPS Organic Act--to expedite the current construction project,
ensuring CBP is under no obligation to make decisions that consider the
park and the impact on its ecosystem.
While our public lands and local communities are feeling the
impacts of wall construction, CBP cannot prove that building a wall is
helping the agency achieve their mission. According to a 2017 GAO
report, CBP does not have metrics to determine border fencing's impact
on diverting illegal entries or apprehension rates over time.\8\ A more
recent report from DHS states that while the department is working on
new estimation strategies to better model the flow of immigrants across
the border, those models are a work in progress.\9\ More wall in the
region will exacerbate the environmental damage--and potentially do
nothing to impact migration across the border.
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\8\ U.S. Government Accountability Office. SOUTHWEST BORDER
SECURITY: Additional Actions Needed to Better Assess Fencing's
Contributions to Operations and Provide Guidance for Identifying
Capability Gaps. GAO-17-331. Published: February 2017. https://
www.gao.gov/products/GAO-17-331.
\9\ Department of Homeland Security. Efforts by DHS to Estimate
Southwest Border Security between Ports of Entry. Published: September
2017. https://www.dhs.gov/sites/default/files/publications/
17_0914_estimates-of-border-security.pdf
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If CBP's aim is to combat drug smuggling into the United States, as
is the rationale provided to the Department of Defense to justify the
transfer of funds not authorized by Congress, then CBP should look to
their fellow federal agencies for direction. According to the U.S. Drug
Enforcement Administration, the most common method for transporting
illicit drugs into the country is through official ports of entry.\10\
CBP's effort would be better spent working with Congress to use our
country's limited financial resources to address this root problem.
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\10\ U.S. Drug Enforcement Administration. 2018 National Drug
Threat Assessment. Published: October 2018. https://www.dea.gov/
documents/2018/10/02/2018-national-drug-threat-assessment-ndta.
---------------------------------------------------------------------------
Inadequate Public Comment Process
CBP provided a paragraph of information and three basic maps when
requesting input on a project that will cause significant and lasting
damage to two of our national parks. It is an insult to park visitors
and American taxpayers that places that belong to all of us--equally
and in perpetuity--can be so willfully disregarded. The ``comment
period'' provided is clearly not intended to have any impact on project
decisions, as laws were waived, contracts awarded and construction
scheduled to start before the allotted 60-day comment period had
passed.
Government construction projects of this scope and scale anywhere
else in the country would have been subject to safeguards like the
National Environmental Policy Act (NEPA), which would have provided for
a public input process and ensured alternatives were at least
considered. Instead, the public does know not how tall the wall will
be, how wide the road will be, how bright the lights will be or any
other detailed information about the Pima and Cochise Counties'
project. CBP has made it impossible for the public to provide
meaningful, substantive feedback on this project by forcing the public
to read between the lines.
Public process and planning transparency would have given the
government a chance to consider various alternatives, including the
NEPA-required no-build alternative, and provided information about
design improvements that would allow the project to be more responsive
to on the ground conditions. For instance, perhaps the wall would an
effective deterrent but better for wildlife passage if the space
between the bollards were just a few inches wider than the current
project allows. At special places like Quitobaquito, perhaps it would
be possible to maintain operational control without the wall if
coordination with Border Patrol surveillance and on-the-ground
activities were considered. In addition, where gates will be
constructed at washes and left open during times of likely flooding, it
might be possible to leave the gates open at various other times as
well to allow for wildlife migration. There are likely other
improvements to consider, but because NEPA and public engagement were
waived, these possibilities will never be considered.
Conclusion
Without question, border security is vital to our country, which is
why it's so important we get it right. Our nation must look for
solutions that are as unique as our landscapes and communities and
ensure the solutions we find don't destroy the national treasures we've
committed to protecting.
CBP has provided no justification for why expanding the border wall
at Organ Pipe Cactus National Monument, Coronado National Memorial and
adjacent landscapes is an effective solution for addressing either
migration or drug smuggling. Quite simply, a border wall is not the
answer, for our national parks or our border communities.
Thank you for considering our comments.
Sincerely,
Christina Hazard,
Associate Director, Wildlife & Natural Resources
______
Statement for the Record
Congressman Greg Stanton, a Representative from the State of Arizona
Thank you Chairman Gallego and Ranking Member Cook for allowing me
to share my thoughts on the egregious behavior taking place on the
Tohono O'odham Nation in Arizona.
Congress passed the REAL ID law in 2005, and among its provisions
was the ability for the Department of Homeland Security to waive ``all
legal requirements'' when constructing walls and roads along the
Southwest border. Under the REAL ID law, Customs and Border Protection
is actively destroying parts of the Tohono O'odham Nation for the
construction of a 30-foot wall. Earlier this year, CBP used explosives
on Monument Hill in Arizona's Organ Pipe Cactus National Monument to
begin wall construction. This is a burial site sacred to the Nation
that dates back more than 10,000 years. For the Trump administration to
treat it with such disregard shows the lengths this Administration is
willing to go to fulfill a wasteful campaign promise.
In 1853, the Gadsden Purchase established the current southern
border, disregarding that it would split the Tohono O'odham Nation
across Arizona and Mexico. The reservation now spans 2.8 million acres
with 62 miles along the border. There are currently 34,000 enrolled
members, with more than 2,000 residing in the Sonora, Mexico.
Construction of a wall negatively affects the Tohono O'odham people in
various ways. A wall would disrupt the natural flow of water from
critical sources on the southern side of the border. A wall would be
culturally devastating as well. Every year, members make a pilgrimage
to Magdalena, Sonora to visit the statute of Saint Francis, the patron
saint of animals and the environment. This wall would be so detrimental
to the Tohono O'odham's way of life that earlier this month the
Nation's Legislative Council issued a resolution in opposition to its
construction. Listening to and respecting the concerns of the Tohono
O'odham Nation is the right thing to do.
The United Nations Educational, Scientific and Cultural
Organization (UNESCO) created the Organ Pipe Cactus Biosphere Reserve
in 1976 due to its ``unique resources representing a pristine example
of an intact Sonoran Desert ecosystem.'' The UNESCO biosphere program
was started ``with the intention to test and outline how humans can
strike a balance among the apparently conflicting issues of conserving
biological diversity, promoting economic and social development, and
maintaining associated cultural values.'' By disrupting the environment
to construct a wall, CBP is affecting thousands of wildlife species
unique to the Sonoran Desert.
On all accounts, this Administration is failing the UNESCO
biosphere program's vision and failing the Tohono O'odham Nation. It is
destroying Arizona's biological diversity and erasing the cultural
values sacred to the Native Americans who lived on this land first. I
am against the construction of a wall on the Tohono O'odham Nation's
land and am encouraged to see this Committee holding a hearing on this
issue. We must do everything in our power to prevent the destruction of
our environment and most importantly, the indigenous lands in the
United States.
______
Statement for the Record
SOUTHERN BORDER COMMUNITIES COALITION
by Vicki B. Gaubeca, Director
and
Jennifer Johnson, Border Policy Advisor
Introduction
Formed in 2011, the Southern Border Communities Coalition (SBCC), a
project of Alliance San Diego, brings together networks from San Diego,
California, to Brownsville, Texas, to ensure that border enforcement
policies and practices are accountable and fair, respect human dignity
and human rights, and prevent the loss of life in the region.
As the Administration continues to deploy a record level of
enforcement resources to the southern border region, including
unaccountable agents, active-duty military troops and National Guard,
surveillance and military technologies befitting theaters of war,
border communities suffer as these deployments and programs jeopardize
their human and civil rights, cause irreparable harm to the surrounding
environment and wildlife, and erode quality of life and public safety.
This escalated militarization comes with little to no accountability
and oversight, which leads to increased abuse and impunity at Customs
and Border Protection (CBP), ultimately undermining the safety of
border communities and the nation.
The Administration has also developed and implemented increasingly
reckless and harmful policies that have intensified the suffering
experienced by refugees at our southern border. Asylum seekers are
returned to often dangerous and untenable situations in Mexico to await
their immigration hearings or are subjected to an intensely rushed
process where they are denied meaningful access to protection. Other
cruel deterrence practices include blocking entry at southern ports of
entry by engaging in ``metering'' or ``wait-listing'' for people
seeking safety; ripping children away from the arms of parents so
parents can be prosecuted; holding refugees in unsanitary, overcrowded
holding cages that are more akin to dog kennels; and threatening to
deport millions of people without regard to the harm it will cause to
families and entire communities.
Of deep concern to border communities is the Administration's
persistent and dangerous obsession with building a border wall by any
means possible and with complete disregard to the profound and
irreparable harms of the border wall on the borderlands, in part
demonstrated by the Administration's repeated waiver of bedrock laws
established by Congress to protect public health, the environment,
wildlife, cultural/religious landmarks, and the U.S. taxpayer to
expedite wall construction.
While the Subcommittee is carrying out this important hearing, the
Administration is actively causing devastation to the borderlands and
southern border communities--blasting away sacred burial sites,
bulldozing precious natural resources, and tearing land away from
private landowners and ranchers to build an ineffective and lethal
border wall.
SBCC submits this statement to provide the Subcommittee with an
analysis that includes the perspectives of borderland residents on how
the Administration policies and practices have damaged the quality-of-
life and eroded the civil rights of the more than 15 million people who
call the southern border region home.
Status of Border Wall Construction, Transfers, Waivers and Costs
According to U.S. Customs and Border Protection (CBP),\1\ as of
Jan. 24, 2019, there were 655 miles of primary barriers on the
Southwest border, which included about 301 miles of pedestrian fencing
and about 254 miles of vehicle barriers built before January 2017.
About 99 miles of these primary barriers are new barriers built in
place of dilapidated ones (i.e., replacement walls) and approximately 1
mile of new border wall built in locations where no barriers previously
existed. An additional 10 miles of new ``secondary'' border wall system
have also been built since January 2017, bringing the total to 110
miles.
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\1\ Customs and Border Protection. ``CBP/USACE Border Wall Status''
(Jan. 24, 2020). Available at: https://cdn.factcheck.org/UploadedFiles/
CBP-Border-Wall-Status-Paper_as-of-01242020-FINAL.pdf.
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The 115th and 116th Congress have appropriated a total of nearly
$5.1 billion in fiscal years 2017, 2018, 2019 and 2020 to fund the
construction of approximately 272 miles of new and replacement barriers
along the Southern border. In addition to these funds appropriated by
Congress, the Administration has gone to unprecedented lengths to
unlawfully raid other agencies to access billions beyond what Congress
has appropriated for the construction of more border wall.
In Feb. 2019, following the longest government shutdown in history
and Congress's rejection of President Trump's full funding request for
more border wall in the Fiscal Year 2019 appropriations bill, the
Administration brazenly declared in a press conference a dubious
``national emergency'' (and has blatantly admitted this as a mechanism
to circumvent Congress) to divert $3.6 billion from the Department of
Defense's (DoD's) 10 U.S.C. Sec. 2808 Military Construction funds
(effectively halting 127 military construction projects) \2\ and $2.5
billion from 10 U.S.C. Sec. 284 Counter-Narcotics funding to construct
another 304 miles of new or replacement barriers. The Administration
also tapped into another $600 million from the U.S. Treasury Forfeiture
Fund. Both U.S. congressional chambers have voted and passed
resolutions of disapproval against the Administration's declaration of
a national emergency, but--to date--have failed to obtain a veto-proof
majority.
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\2\ Sisk, Richard. ``Pentagon Releases List of Military
Construction Projects Paused to Fund Border Wall'', Military.com (Sept.
4, 2019) Available at: https://www.military.com/daily-news/2019/09/04/
pentagon-releases-list-military-construction-projects-paused-fund-
border-wall.html.
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In mid-January 2020, the Administration indicated its intent to
circumvent Congress again and transfer $7.2 billion from DoD funding,
including $3.7 billion from military construction and $3.5 billion from
counter-narcotics funding, to build more border wall. On Feb. 13, 2020,
the Administration notified Congress that it intends to transfer $3.8
billion of DoD funds to erect another 177 miles of border barriers.
These funds were originally appropriated by Congress in the Fiscal Year
2020 budget to purchase new military aircraft, vehicles, and weapons.
The Administration has also requested another $2 billion
\3\,\4\ to build another 82 miles of border wall in the
Fiscal Year 2021 budget.
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\3\ Kanno-Youngs, Zolan. ``What's in President Trump's Fiscal 2021
Budget? Steep cuts to domestic programs and more resources for the
military and policing the border with Mexico.'' New York Times (Feb.
10, 2020) Available at: https://www.nytimes.com/2020/02/10/business/
economy/trump-budget-explained-facts.html.
\4\ DHS Fiscal Year 2021 Budget in Brief, Available here: https://
www.dhs.gov/sites/default/files/publications/
fy_2021_dhs_bib_web_version.pdf.
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Influenced by presidential election year politics, the
Administration is eager and determined to fulfill an uninformed and
costly campaign promise to build a border wall. Of course, we must
recall that candidate Trump promised that Mexico would pay for the cost
of its construction, not the U.S. taxpayer. Instead, he is devastating
the border region by constructing a harmful, vanity wall bankrolled by
the American taxpayer and circumventing Congress by seizing funds
outside the appropriations process.
Thus far, the price tag for this Administration's border wall is
more than $11 billion--or nearly $20 million a mile--and growing. It is
the most expensive wall of its kind anywhere in the world.\5\
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\5\ Burnett, John. ``$11 Billion And Counting: Trump's Border Wall
Would Be The World's Most Costly,'' NPR (Jan. 19, 2020) Available at:
https://www.npr.org/2020/01/19/797319968/-11-billion-and-counting-
trumps-border-wall-would-be-the-world-s-most-costly.
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Ultimately the costs of building this wall will be exorbitant. In
2018, the Government Accountability Office issued a report \6\ that
suggested that there is no way to verify wall construction costs
because estimates do not not fully account for varied, and sometimes
extreme, terrain along the borderlands, and how this could play a role
in costs. A minority report \7\ by the Senate Committee on Homeland
Security and Governmental Affairs suggested the costs of building
Trump's border wall could rise up to almost $70 billion, or more than
$200 for every man, woman and child living in the United States.
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\6\ GAO. ``SOUTHWEST BORDER SECURITY. CBP Is Evaluating Designs and
Locations for Border Barriers but Is Proceeding Without Key
Information'' July 2018 Highlights of GAO-18-614, a report to
congressional requesters. Available at: https://www.gao.gov/assets/700/
693488.pdf.
\7\ HSGAC Minority Report. ``Southern Border Wall: Soaring Cost
Estimates and Lack of Planning Raise Fundamental Questions About
Administration's Key Domestic Priority.'' (April 18, 2017). Available
at: https://www.hsgac.senate.gov/imo/media/doc/Southern%20Border%20
Wall%20-%20HSGAC%20Minority%20Report.pdf.
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Walls also cost billions of taxpayer dollars to maintain. No
physical structure is immune to natural wear and tear caused by
exposure to the elements over the years. The same minority report
referred to above also estimated that maintenance costs, based on
current costs of maintaining the wall, could reach $150 million a
year--that's billions of more dollars needed that our children will
have to pay for. This figure does not include the costs for repairing
walls that have been breached or damaged by other causes.
To facilitate the construction of the wall at the expense of border
community members, the environment and wildlife, the Administration
continues to interpret the Real ID Act as giving the Department of
Homeland Security complete and unhindered discretion in waiving any
U.S. laws that might interfere with the construction of border wall. As
a result, almost 50 laws that were passed by Congress to protect the
public from government overreach and protect our water, air,
environment and rights have been waived, including the Native American
Graves Protection and Repatriation Act, the American Indian Religious
Freedom Act, the Religious Freedom Restoration Act, the National
Environmental Protection Act, the Endangered Species Act, the Clean Air
Act and the Safe Drinking Water Act.
To further speed up the construction of the border wall in Arizona,
California, New Mexico and Texas, the Administration recently waived
Federal procurement statutes and regulations,\8\,\9\
including requirements for open competition and justifying selections.
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\8\ Spagat, Elliot. ``Homeland Security waives contracting laws for
border wall,'' Associated Press (Feb. 18, 2020). Available at: https://
apnews.com/1689fa48a2e177d1f397b95ff0cb97db.
\9\ Statutes and regulations include: 10 U.S.C. Sec. 2304; 10
U.S.C. Sec. 2304c; 10 U.S.C. Sec. 2306a; 10 U.S.C. Sec. 2305(a)-(c),
(e)-(f); Section 813 of Public Law 114-328, as amended by Section 822
of Public Law 115-91; 15 U.S.C. Sec. 657q; 48 C.F.R. Sec. 17.205; 48
C.F.R. Sec. 17.207; 10 U.S.C. Sec. 2305a(b)-(e); 48 C.F.R. Sec. 22.404-
5; and 48 C.F.R. Sec. 28.102-1(c).
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Border Wall Harms
The consequences and harms of building border walls have been
profound to border communities, the environment and wildlife. Since
1994, when the first wall was built near San Diego under Border
Patrol's Operation Gatekeeper, the remains of more than 7,800 migrants
have been found in remote areas of the southern border, including on
the Tohono O'odham Nation and in rural areas near Falfurrias, Texas.
However, not all remains are found, and experts estimate that this
number reflects only a third of the estimated migrants who lost their
lives attempting to cross the border.
Border walls jeopardize tribal sovereignty. The Tohono O'odham
Nation, whose ancestral lands straddle the U.S.-Mexico border, already
have a physical barrier with a gate bisecting their nation. Most tribal
members oppose replacing this physical structure \10\ with a wall,
because it would interfere with their ability to cross into Mexico to
connect with other tribal members for sacred ceremonies and visits.
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\10\ Nanez, Dianna M. ``The Wall: A border tribe, and the wall that
will divide it'' USA Today. Available at: https://www.usatoday.com/
border-wall/story/tohono-oodham-nation-arizona-tribe/582487001/.
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As noted by Ned Norris, Jr. , Chairman of the Tohono O'odham
Nation, ``A wall is extremely expensive for the American taxpayer, is
ineffective in remote geographic areas like ours, and is highly
destructive to the religious, cultural and environmental resources on
which our members rely and which make our ancestral lands sacred to our
people. Ongoing construction of the wall already has and will continue
to disturb and destroy culturally significant sites and cultural
resources, tribal archeological resources, and sacred sites and
desecrate human remains.'' \11\
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\11\ The Tohono O'odham Nation of Arizona Testimony of The
Honorable Ned Norris, Jr., to the U.S. House Of Representatives
Committee On Natural Resources, Subcommittee for Indigenous Peoples of
the United States, Hearing On Destroying Sacred Sites And Erasing
Tribal Culture: The Trump Administration's Construction of the Border
Wall (Feb. 26, 2020) Available at: https://naturalresources.house.gov/
imo/media/doc/SCIP%2002.26%20-%20Chairman%20Norris. pdf.
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Current and proposed land seizures for border wall construction
have deeply harmed property owners on the U.S. side of the border. In
Texas, the vast majority of land adjacent to the border is privately
owned, so the Administration has resorted to condemnation lawsuits
against private landowners in many of the poorest communities in the
United States to take land for the border wall by force. Hundreds of
private property owners have been forced to give up their homes,
businesses, farms and ranches--some of whom have held these lands in
their families for generations--through eminent domain seizures.
In some cases, DHS has used `quick take' condemnations to take
possession of private property and start wall construction even before
just compensation has been determined and the property owner paid. In
case after case, DHS has completely discounted the hardships that the
border wall will bring to these landowners, to include (1) the
devaluation of contiguous property and land left after the taking, (2)
problems accessing land and homes behind a 30-foot wall built on top of
a levee, and (3) the effects on livelihood as the result of a wall
interfering with farming, ranching, and maintaining renters.
Any kind of physical barrier at the U.S.-Mexico border also
interferes with the migration patterns and access to food and water of
wildlife--many of which are endangered and protected species, like the
Mexican grey wolf, ocelot, bighorn sheep and jaguar. More than 2,500
scientists from 43 countries signed on to a study that illustrates the
harm to wildlife \12\ and the environment that would be generated by
this Administration's border wall. Even birds will be affected, like
the cactus ferruginous pygmy owl \13\ which cannot fly higher than 4.5
feet and would be unable to clear Trump's proposed 18- to 30-foot wall.
Every day now, we witness more miles of border walls built every day,
laying waste to our environment and placing our endangered and
protected species on a runaway train toward extinction.
---------------------------------------------------------------------------
\12\ Javorsky, Nicole. ``Scientists Decry the Border Wall's Harm to
Wildlife,'' City Lab (July 24, 2018). Available at: https://
www.citylab.com/environment/2018/07/scientists-decry-the-border-walls-
harm-to-wildlife/565913/.
\13\ Knowles, Cybele. ``5 Animals Threatened by the Border Wall,''
Medium (Feb. 22, 2017). Available at: https://medium.com/center-for-
biological-diversity/5-animals-threatened-by-the-border-wall-
3160a6bbfd85.
---------------------------------------------------------------------------
Border walls and infrastructure have exacerbated flooding in
Arizona and Texas, causing millions of dollars in damage to the
environment and local businesses and endangering the lives \14\ of
border residents and wildlife. In 2008, a year after a National Park
Service report warned the DHS that the border wall would cause
flooding, two people drowned in Nogales from flooding intensified by
the wall along the Arizona/Sonora border.
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\14\ Sadasivam, Naveena. ``The US-Mexico border wall's dangerous,
costly side-effect: enormous floods,'' Quartz, (Aug. 17, 2018).
Available at: https://qz.com/1353798/the-us-mexico-border-walls-
dangerous-costly-side-effect-enormous-floods/.
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Conclusion and Recommendations
Not only is the construction of a border wall costly and harmful,
it is also not supported by a majority of voters, including communities
directly impacted by the wall. A recent survey by the University of
California Immigration Policy Center showed almost 60% of registered
voters in California, Arizona, New Mexico and Texas oppose any
additional funding for border wall.
The southern border region--home to about 15 million people--is a
place of hope, encounter and opportunity. It is one of the most vibrant
and diverse places in the country with deep cross-border ties from San
Diego, CA to Brownsville, Texas.
But instead of embracing our dynamic communities, for decades our
border policies have cast aside human rights, criminalized migrants and
engaged in deadly and unaccountable border enforcement, undermining
public safety for all.
It's time to rethink how we do border and push for a new vision
\15\ that introduces a 21st century border governance model that
expands public safety to all, creates a welcoming system for newcomers
and residents, and protects human rights and life.
---------------------------------------------------------------------------
\15\ Southern Border Communities Coalition. ``A New Border Vision''
(May 2019) Available at: http://d3n8a8pro7vhmx.cloudfront.net/themes/
5c8a803c4764e89849b5753e/attachments/original/1557787799/SBCC-NBV-
H.pdf?1557787799.
We urge this subcommittee to consider introducing a legislative
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initiative that would:
Rescind the vast and arbitrary powers seemingly granted to
the Department of Homeland Security to waive all legal
requirements to construct the border wall and related
infrastructure at the southern border.
Prohibit the Administration's ability to transfer funds or
access resources for border wall construction in violation
of the appropriations process or congressional intent.
Halt existing wall construction and terminate contracts
funded by illegally transferred and seized funds.
Hold this Administration accountable for its failure to
comply with consultation requirements in border wall
construction efforts, including government-to-government
consultation with Tribal governments, and strengthen
consultation mechanisms.
Prohibit DHS from taking physical possession of any
acquired land unless and until all persons entitled to
compensation for such acquisition have been compensated in
full, and the court proceedings described in 40 U.S.C. Sec.
3114(a) have concluded and the case terminated.
Identify and fund programs to address harms and provide
reparations for landowners, communities and public and
private lands harmed by border wall construction.
______
U.S. Customs and Border Protection
Tucson, Arizona
January 10, 2020
Ned Norris, Jr., Chairman
Tohono O'odham Nation
P.O. Box 837
Sells, AZ 85634
Dear Chairman Norris,
Thank you for your letter dated November 13, 2019 following up on
our October 25 conference call regarding the border barrier projects in
U.S. Border Patrol's (USBP) Tucson Sector. We are aware of your
concerns regarding the border barrier construction projects and
potential affects to the Tohono Nation's ancestral lands. Dialogue with
the Nation is important to us as we execute these critical border
security projects. The paragraphs below address the concerns noted in
your letter.
IIRIRA Waiver for Tucson Sector Projects
As you know, Congress has provided the Secretary of Homeland
Security with numerous authorities necessary to carry out DHS's border
security mission. One such authority is section 102 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
In section 102(a) of IIRIRA, Congress provided that the Secretary
``shall take such actions as may be necessary 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 illegal entry into
the United States.'' In section 102(c) of IIRIRA, Congress granted the
Secretary the authority to waive all legal requirements that the
Secretary determines necessary ``to ensure the expeditious construction
of barriers and roads'' authorized by section 102 of IIRIRA.
Pursuant to those authorities, the Acting Secretary waived various
laws for the construction of border barriers in the vicinity of the
United States Border in Cochise County and Pima County, Arizona. The
waiver was published in the Federal Register on May 15, 2019. See 84
Fed. Reg. 21798.
With respect to the geographic scope of the waiver at issue, it
covers certain project areas that are described in the text of the
waiver. The waiver states: ``the following areas in the vicinity of the
United States border located in the State of Arizona within the United
States Border Patrol's Tucson Sector, are areas of high illegal entry
(the ``project areas''):
Starting approximately one-half (.5) mile west of Border
Monument 178 and extending east to Border Monument 162;
Starting at Border Monument 100 and extending east for
approximately one (1) mile;
Starting at Border Monument 98 and extending east to
Border Monument 97; and
Starting approximately one-half (.5) mile west of Border
Monument 83 and extending east to Border Monument 74.''
Regarding the activities covered by the waiver, as noted above, in
Section 102(c) of IIRIRA Congress authorized the Secretary to use the
waiver authority to ``ensure the expeditious construction of barriers
and roads'' authorized by section 102 of IIRIRA. To this end, in the
May 15th waiver, the Acting Secretary specifically noted that the
waiver would apply to the ``construction of physical barriers and roads
(including, but not limited to, accessing the project areas, creating
and using staging areas, the conduct of earthwork, excavation, fill,
and site preparation, and installation and upkeep of physical barriers,
roads, supporting elements, drainage, erosion controls, safety
features, lighting, cameras, and sensors) in the project areas.''
Taken together, this means that the laws set forth in the May 15th
waiver are inapplicable to the construction of physical roads and
barriers and/or activities that are undertaken in furtherance thereof,
within project areas that are described in the waiver (areas in the
vicinity of the border within the descriptions noted above).
In light of the above, simply providing a map, as you requested,
would not capture the scope or application of the waiver. To be sure,
the waiver described the project areas where it is to be applied.
However, the waiver does not cover each and every federal action that
is undertaken within those project areas. Rather, as explained above,
the waiver applies to the construction of barriers and roads and/or
activities undertaken in furtherance thereof, within those projects
areas. To this end, to aid in your understanding of the waiver and how
it is applied, CBP has enclosed a map that shows the planned project
corridors and planned access roads for the projects covered by the
waiver at issue. Please note that, as with any construction project, it
is possible that the project corridors and/or the access roads could
change depending on various circumstances.
When planning for projects covered under an environmental waiver,
CBP remains committed to responsible environmental and cultural
stewardship, as is the case with these border barrier projects. As part
of its commitment, CBP conducts biological, cultural, and natural
resource surveys of each project area. In addition, CBP coordinates and
consults with Federal, State, and local agencies, Native American
Tribes, and other interested stakeholders to obtain information about
the possible presence of environmental and other sensitive resources
that may be present in each project area. Specifically, CBP met with
the Nation on May 15 and May 16, 2019 regarding the border barrier
projects within the Tucson Sector area of responsibility. CBP develops
site-specific construction best management practices to be implemented
by the construction contractor and identifies design elements when and
where possible that avoid or minimize environmental impacts to the
greatest extent possible. Survey data and information received by CBP
are used to prepare an Environmental Stewardship Plan (ESP) for each
project, which includes an analysis of potential environmental impacts
from the implementation of the project. The ESP for the border barrier
projects in Tucson Sector will be available at the link below. https: /
/ www.cbp.gov / about / environmental-management-sustainability / cbp-
environmental-documents. Finally, CBP is continuing to coordinate with
the National Park Service (NPS) regarding the areas of concern noted in
your letter. In many instances, cultural resource surveys indicated
that resources were either outside the project area limits or not
eligible for listing. For those resources that are found within the
project, area limits CBP, as it has done in the past, will coordinate
with federal managers and, wherever possible, take steps to avoid or
minimize impacts to historic and cultural resources.
Buffer Zone
CBP considered your request for a buffer zone of at least one mile
east and west of Quitobaquito, Las Playas, Pinta Sands, the Tinaja
Atlas Mountains, the San Pedro River Riparian area, and the San
Bernardino National Wildlife Refuge and determined that the proposed
gaps do not meet USBP's operational requirements to secure these areas
of the border. Regarding disturbances related to road widening, CBP
completed environmental due diligence despite the waiver of
environmental laws and conducted cultural site surveys of the
construction area to include the Roosevelt Reservation, access roads,
material laydown areas, and vehicle turn arounds prior to ground
disturbance activities. CBP identified several previously recorded and
new archaeological sites within and adjacent to the Roosevelt
Reservation. CBP completed an evaluation of each site's eligibility for
listing in the National Register of Historic Places (NRHP). Of the
sites identified, CBP determined they could be avoided by construction
activities or were not eligible for listing in the NRHP and no further
investigative of data recovery actions were necessary. Further, per
your request, CBP coordinated with the USACE to deploy additional
cultural resource subject matter experts to the project area that will
provide additional monitoring. CBP also acknowledges and is considering
the Nation's request for CBP to retain the Nation's tribal monitors for
border barrier projects. In the interim, the Nation is welcome to
coordinate with CBP and USACE to be present during border barrier
construction activities.
Groundwater Use
With regard to your request to stop using groundwater, CBP
coordinated with the NPS and the U.S. Fish and Wildlife Service (USFWS)
to evaluate potential groundwater impacts to the springs at
Quitobaquito. Based on this coordination, CBP, NPS, and USFWS agreed
that the construction contractor would not use or drill new wells
within five miles of either side of Quitobaquito Springs. The NPS is
currently monitoring water levels at Quitobaquito to evaluate and
identify significant changes in water levels. CBP is coordinating with
NPS to continue this monitoring effort upon completion of NPS' initial
activities. The construction contractor will continue to use
groundwater in other areas of the project. The amount of water required
will vary throughout the project and will depend on a number of factors
such as final design specifications, dust control requirements, among
other considerations. CBP and USACE continue to coordinate with USFWS
to evaluate potential impacts to groundwater from the implementation of
the project. CBP will monitor groundwater levels in existing wells and
ponds and implement additional measures as needed.
Wildlife Crossings
Regarding your request to include large gaps to allow the movement
of wildlife across the border, CBP worked with USFWS to identify and
develop design elements that support both wildlife migration and border
security that include implementing strategically placed passages to
allow cross-border migration of small animals. CBP considered the
placement of additional gaps for large mammals; however, these openings
do not meet the operational requirements of USBP and compromise our
efforts to patrol and secure these areas of the border.
Consultation
Moving forward, CBP recognizes the value of frequent communication
between the Nation and USBP Tucson Sector leadership to discuss border
barrier projects and other border security matters. Regular meetings
with communities, districts and Nation leadership regularly inform
Tucson Sector on tribal concerns about USBP operations and tactics in
the Tucson Sector area of operations. From past meetings, Tucson Sector
and the Nation have been able to deploy ten Integrated Fixed Towers
along the U.S.-Mexico border, numerous rescue beacons and have started
a road repair project on Federal Route 21. These projects were able to
be accomplished by working closely together. USBP and CBP also recently
conducted a site visit on December 11, 2019 to consult with
representatives from the Nation to discuss concerns and potential
strategies to address issues regarding border barrier projects. This
meeting was specific to Monument Hill and we were able to hear the
concerns from the Nation's Tribal Historic Preservation Officer. In
addition to local efforts, CBP benefits from periodic meetings between
CBP headquarters' leadership and the Nation's Chairman, Vice
Chairwoman, members of the Legislative Council, and other tribal
representatives. Regrettably, one such meeting was recently canceled at
the request of the Nation, but we look forward to scheduling another
meeting in the near future. Continuing this dialogue and communication
will allow for Tribal voices and concerns to be heard at all levels of
USBP and CBP.
CBP hopes to continue the partnership your predecessor, Edward
Manuel, established with us by routinely meeting with CBP senior
leadership. These government-to-government engagements were an
important opportunity to discuss topics of vital mutual interest
including USBP operations on the Nation's land, border security, and
border infrastructure projects. In an effort to assure continued and
contemporary information, I suggest we establish a reoccurring
teleconference to provide regular construction schedule updates and
ensure continued dialogue throughout the project.
I want to ensure you that CBP appreciates and values our continued
partnership across all levels within the agency. We are committed to
continued dialogue to keep you and other representatives from the
Nation updated on the Tucson Sector border barrier projects as we
continue to consider and address your concerns where and when possible.
Thank you again for your feedback and we look forward to meeting
with you soon.
Honor First,
Roy D. Villareal,
Chief Patrol Agent
Tucson Sector Chief
Enclosure [MAP] (see below)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
U.S. CUSTOMS AND BORDER PROTECTION
February 24, 2020
Contact: Tucson Sector
Public Affairs Office
(520) 748-3210
[email protected]
www.cbp.gov
MEDIA ADVISORY
Monument Hill Controlled Detonation and Briefing
TUCSON, Ariz.--Tucson Sector Border Patrol, in collaboration with the
Army Corps of Engineers and contracted border wall personnel (to
include subject matter experts) are providing members of select
credentialed media an opportunity to view a controlled detonation
occurring on Monument Hill during border wall construction.
Credentialed media I.D. will be verified upon entrance to the below
location.
This event features a briefing from USACE and USBP personnel. Media
will be transported to a viewing area within the construction site,
located a safe distance from where the charges are set to detonate.
Long focal length lenses are recommended. Subject matter experts will
be onsite and available to answer questions and provide interviews upon
request.
Dress appropriately and wear closed-toe footwear suitable for a desert
environment. Cell phone coverage may be sporadic in this area. Expect
the event to finish around 1 p.m.
Date & Time: Wednesday, February 26, 2020, at 10 a.m. Sharp
Location: Army Corps of Engineers Construction Site Headquarters, Mile
post 79 on the east side of State Route 85
RSVP Required: Please email [email protected] to R.S.V.P. no later
than close of business Tuesday, February 25, 2020.
--CBP--
U.S. Customs and Border Protection is the unified border agency within
the Department of Homeland Security charged with management, control
and protection of our n ation's borders at and between official ports
of entry. CBP's mission includes keeping terrorists and terrorist
weapons out of the country while enforcing hundreds of U.S. laws.
Follow us on Twitter @CBPArizona.
______
Border fence construction could destroy archaeological sites, National
Park Service finds
The Washington Times
September 17, 2019 by Juliet Eilperin and Nick Miroff
Bulldozers and excavators rushing to install President Trump's border
barrier could damage or destroy up to 22 archaeological sites within
Arizona's Organ Pipe Cactus National Monument in coming months,
according to an internal National Park Service report obtained by The
Washington Post.
The administration's plan to convert an existing five-foot-high vehicle
barrier into a 30-foot steel edifice could pose irreparable harm to
unexcavated remnants of ancient Sonoran Desert peoples. Experts
identified these risks as U.S. Customs and Border Protection seeks to
fast-track the construction to meet Trump's campaign pledge of
completing 500 miles of barrier by next year's election.
Unlike concerns about the barrier project that have come from private
landowners, churches, communities and advocacy groups, these new
warnings about the potential destruction of historic sites come from
within the government itself.
The National Park Service's 123-page report, obtained via the Freedom
of Information Act, emerges from a well-respected agency within the
Interior Department as the Department of Homeland Security and the
White House push ahead with their construction plans. While the
government scrambles to analyze vulnerable sites as heavy equipment
moves in, the administration also faces external challenges seeking to
block the use of eminent domain to seize land, as well as lawsuits
asking courts to halt work in and around wildlife refuges and other
protected lands.
New construction began last month within the Organ Pipe Cactus National
Monument, an internationally recognized biosphere reserve southwest of
Phoenix with nearly 330,000 acres of congressionally designated
wilderness. The work is part of a 43-mile span of fencing that also
traverses the adjacent Cabeza Prieta National Wildlife Refuge.
With the president demanding weekly updates on construction progress
and tweeting out drone footage of new fencing through the desert,
administration officials have said they are under extraordinary
pressure to meet Trump's construction goals.
The Department of Homeland Security has taken advantage of a 2005 law
to waive several federal requirements--including the Archaeological
Resources Protection Act, the National Historic Preservation Act and
the Endangered Species Act--that could have slowed and possibly stopped
the barrier's advance in the stretch in Arizona.
Some archaeological features along the border already have suffered
damage as Border Patrol agents zoom through in pursuit of migrants and
smugglers in all-terrain vehicles, according to federal officials and
two experts who have conducted research in the region.
Environmental groups have fought unsuccessfully to halt construction in
protected areas, arguing that more-imposing barriers could disrupt
wildlife migration and threaten the survival of imperiled species.
But there has been little mention of the potential damage to
archaeological sites, where stone tools, ceramic shards and other pre-
Columbian artifacts are extremely well-preserved in the arid
environment. Desert-dwelling peoples have populated the area for at
least 16,000 years, particularly around the oasis of Quitobaquito
Springs in the national monument, one of the few places where the
Quitobaquito pupfish and the endangered Sonoyta mud turtle still live
in the wild.
The oasis was part of a prehistoric trade route, the Old Salt Trail,
where northern Mexican commodities including salt, obsidian and
seashells were plentiful, according to the Park Service. The traders
were followed by Spanish missionaries, Western settlers, and other
travelers and nomads who came to drink.
The springs and surrounding desert wetlands are just 200 feet from the
border, where crews plan to bring in heavy earth-moving equipment to
install the giant steel barriers. Scientists have raised concerns that
the springs could dry up if crews pump ground water from the area for
the barrier's concrete base.
CBP officials said the agency has looked at ``most'' of the
archaeological sites identified in the Park Service report and found
just five that are within the 60-foot-wide strip of federal land on the
U.S. side of the border where the government will erect the structure,
an area known as the Roosevelt Reservation, which was set aside along
the border in California, Arizona and New Mexico. Of those five,
officials said, one had a ``lithic scatter''--remnants of stone tools
and other culturally relevant artifacts.
Construction crews do not yet have a plan to begin work at that
location, CBP officials said, noting that the agency has had
discussions with the Park Service about collecting and analyzing
fragments of historic significance from that site.
``We've been working very closely with the park,'' said a CBP official,
who spoke on the condition of anonymity to discuss the administration's
plan for building near archaeological sites along the border.
The officials said they have not delayed or otherwise altered their
construction plans to conduct more detailed surveys or excavations in
the area.
Officials said crews with earth-moving equipment have started
installing barriers in a two-mile section east of the border crossing
at Lukeville, Ariz., a particularly busy stretch for illegal crossings.
CBP officials acknowledged that trucks and earth-moving equipment
driving through the fragile desert risk harming sites outside the
specific construction zones. The officials said they are following Park
Service guidance as to where workers can drive.
President Trump has declared an emergency at the border. This photo
shows why a wall won't stop asylum seekers from flooding into the
United States.
With CBP, the U.S. Army Corps of Engineers and their construction
contractors under pressure from the White House, federal land in the
West has become the easiest place to quickly add fencing. There are few
private landowners in the desert terrain outside Texas, and it is a far
easier place to build than along the winding riverbanks of the Rio
Grande.
At least a dozen Native American tribes claim connections to the lands
within the Organ Pipe Cactus National Monument, especially near
Quitobaquito. They include the Tohono O'odham Nation, which used to
inhabit a large swath of the Sonoran Desert and whose reservation lies
north and east of the park's boundaries. Members of the nation--who
have revived the practice of following the Old Salt Trail--have
protested the idea of any new construction in an area once inhabited by
their ancestors, the Hohokam, who lived there between 200 and 1,400
A.D.
Tohono O'odham Nation Chairman Ned Norris Jr. said his tribe remains
opposed to any new border fence construction.
``We've historically lived in this area from time immemorial,'' he
said. ``We feel very strongly that this particular wall will desecrate
this area forever. I would compare it to building a wall over your
parents' graveyards. It would have the same effect.''
Rick Martynec, an archaeologist who is conducting volunteer surveys of
sites within the Cabeza Prieta National Wildlife Refuge along with his
wife, Sandy, said researchers have not had time to properly evaluate
the area now targeted for construction.
``Quitobaquito, as we know it, may be destroyed before anyone has had a
chance to evaluate the consequences of the current actions,'' Martynec
said. ``What's the rush?''
He noted that relevant sites within the monument ``include evidence of
hunting, farming and home sites'' along with ``historic cemeteries.''
He added that the adjacent wildlife refuge has other archaeological
artifacts, including a rare intaglio figure spanning several hundred
yards that was probably created for a ritual.
The Martynecs were doing research in the refuge at one point and saw a
Border Patrol agent on a four-wheeler motoring up a road on which the
agency was not authorized to drive, ``right over a huge roasting pit''
used by an ancient community, he recalled. They later checked to see if
an incident report had been filed--as would be required if the agency
was traversing that land--but none had been, Martynec said.
In the Park Service report summarizing the results of a survey of 11.3
miles along the U.S.-Mexico border, the agency's archaeologists note
that previous research had ``identified and recorded 17 archaeological
sites which likely will be wholly or partially destroyed by forthcoming
border fence construction.'' The park experts, who conducted their
survey in June, identified five more archaeological sites that also
would be imperiled and would deserve to be protected by a National
Register of Historic Places designation.
The report notes that staffers were unable to complete a survey of the
entire length of the U.S. side of the border that lies within the
monument's boundaries. Park Service archaeologists plan to survey
another 1.7-mile section of the park's southern border later this
month.
Kevin Dahl, Arizona senior program manager for the National Parks
Conservation Association, said that under normal circumstances, the
agency would take steps to protect archaeological sites under its
purview, including a lengthy excavation process if necessary.
CBP has announced plans to complete this section of barriers through
the national monument by January. Those plans call for new fencing in
five or six ``non-contiguous areas,'' including places within the
monument where the archaeological sites are found, agency officials
said. The sections of new barrier are not necessarily contiguous
because the terrain might be too steep or mountainous to install a
single, unbroken span of fencing.
The project within the monument includes a new steel bollard fence
running continuously for 9.1 miles, reinforced with an 8- to 10-foot-
deep concrete-and-steel foundation.
``Archaeology takes time, and they have a deadline,'' Dahl said,
referring to CBP. ``Putting a wall there is insane. This is just one
more reason why ramming this wall through, using illegal,
unconstitutional money, is damaging to these public resources. We're
destroying what the wall is supposed to protect.''
National Park Service spokesman Jeremy Barnum said the agency's mission
``is to preserve unimpaired the natural and cultural resources and
values of the National Park System for the enjoyment, education, and
inspiration of this and future generations.'' But he noted that some of
the parks along the U.S.-Mexico border have been subjected to ``cross-
border illegal activities'' and that the agency has coordinated with
the Department of Homeland Security to address the issue.
In 2002, a park ranger at Organ Pipe was shot and killed as he pursued
members of a drug cartel hit squad who had fled to the United States
from Mexico. The Park Service closed more than half the monument to the
public the following year but reopened it entirely in September 2014.
``The National Park Service appreciates the role of an integrated
border security approach and values the ongoing interagency efforts to
address the multidimensional issue,'' Barnum said.
An archaeologist working for a CBP contractor, Northland Research, is
on site every day when crews are working on the barrier fence,
according to federal and tribal officials. The firm referred requests
for comment to the government agency.
[all]