[House Report 112-448]
[From the U.S. Government Publishing Office]
112th Congress Rept. 112-448
HOUSE OF REPRESENTATIVES
2d Session Part 1
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NATIONAL SECURITY AND FEDERAL LANDS PROTECTION ACT
_______
April 17, 2012.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Hastings of Washington, from the Committee on Natural Resources,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1505]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 1505) to prohibit the Secretaries of the
Interior and Agriculture from taking action on public lands
which impede border security on such lands, and for other
purposes, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do
pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``National Security and Federal Lands
Protection Act''.
SEC. 2. PROHIBITION ON IMPEDING CERTAIN ACTIVITIES OF U.S. CUSTOMS AND
BORDER PROTECTION RELATED TO BORDER SECURITY.
(a) Prohibition on Secretaries of the Interior and Agriculture.--The
Secretary of the Interior or the Secretary of Agriculture shall not
impede, prohibit, or restrict activities of U.S. Customs and Border
Protection on land under the jurisdiction of the Secretary of the
Interior or the Secretary of Agriculture to achieve operational control
(as defined in section 2(b) of the Secure Fence Act of 2006 (8 U.S.C.
1701 note; Public Law 109-367)) over the international land borders of
the United States.
(b) Authorized Activities of U.S. Customs and Border Protection.--
(1) Authorization.--U.S. Customs and Border Protection shall
have immediate access to land under the jurisdiction of the
Secretary of the Interior or the Secretary of Agriculture for
purposes of conducting the following activities on such land
that assist in securing the international land borders of the
United States:
(A) Construction and maintenance of roads.
(B) Construction and maintenance of fences.
(C) Use vehicles to patrol.
(D) Installation, maintenance, and operation of
surveillance equipment and sensors.
(E) Use of aircraft.
(F) Deployment of temporary tactical infrastructure,
including forward operating bases.
(c) Clarification Relating to Waiver Authority.--
(1) In general.--Notwithstanding any other provision of law
(including any termination date relating to the waiver referred
to in this subsection), the waiver by the Secretary of Homeland
Security on April 1, 2008, under section 102(c)(1) of the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (8 U.S.C. 1103 note; Public Law 104-208) of the laws
described in paragraph (2) with respect to certain sections of
the international border between the United States and Mexico
and between the United States and Canada shall be considered to
apply to all land under the jurisdiction of the Secretary of
the Interior or the Secretary of Agriculture within 100 miles
of the international land borders of the United States for the
activities of U.S. Customs and Border Protection described in
subsection (b).
(2) Description of laws waived.--The laws referred to in
paragraph (1) are the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.), the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.), the Federal Water Pollution Control
Act (33 U.S.C. 1251 et seq.), the National Historic
Preservation Act (16 U.S.C. 470 et seq.), the Migratory Bird
Treaty Act (16 U.S.C. 703 et seq.), the Clean Air Act (42
U.S.C. 7401 et seq.), the Archaeological Resources Protection
Act of 1979 (16 U.S.C. 470aa et seq.), the Safe Drinking Water
Act (42 U.S.C. 300f et seq.), the Noise Control Act of 1972 (42
U.S.C. 4901 et seq.), the Solid Waste Disposal Act (42 U.S.C.
6901 et seq.), the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.), Public Law 86-523 (16 U.S.C. 469 et seq.), the Act of
June 8, 1906 (commonly known as the ``Antiquities Act of
1906'') (16 U.S.C. 431 et seq.), the Act of August 21, 1935 (16
U.S.C. 461 et seq.), the Wild and Scenic Rivers Act (16 U.S.C.
1271 et seq.), the Farmland Protection Policy Act (7 U.S.C.
4201 et seq.), the Coastal Zone Management Act of 1972 (16
U.S.C. 1451 et seq.), the Wilderness Act (16 U.S.C. 1131 et
seq.), the Federal Land Policy and Management Act of 1976 (43
U.S.C. 1701 et seq.), the National Wildlife Refuge System
Administration Act of 1966 (16 U.S.C. 668dd et seq.), the Fish
and Wildlife Act of 1956 (16 U.S.C. 742a et seq.), the Fish and
Wildlife Coordination Act (16 U.S.C. 661 et seq.), subchapter
II of chapter 5, and chapter 7, of title 5, United States Code
(commonly known as the ``Administrative Procedure Act''), the
Otay Mountain Wilderness Act of 1999 (Public Law 106-145, 113
Stat. 1711), sections 102(29) and 103 of California Desert
Protection Act of 1994 (16 U.S.C. 410aaa et seq.), the National
Park Service Organic Act (16 U.S.C. 1 et seq.), Public Law 91-
383 (16 U.S.C. 1a-1 et seq.), sections 401(7), 403, and 404 of
the National Parks and Recreation Act of 1978 (Public Law 95-
625, 92 Stat. 3467), the Arizona Desert Wilderness Act of 1990
(16 U.S.C. 1132 note; Public Law 101-628), section 10 of the
Act of March 3, 1899 (33 U.S.C. 403), the Act of June 8, 1940
(16 U.S.C. 668 et seq.), (25 U.S.C. 3001 et seq.), Public Law
95-341 (42 U.S.C. 1996), Public Law 103-141 (42 U.S.C. 2000bb
et seq.), the Forest and Rangeland Renewable Resources Planning
Act of 1974 (16 U.S.C. 1600 et seq.), the Multiple-Use
Sustained-Yield Act of 1960 (16 U.S.C. 528 et seq.), the
Mineral Leasing Act (30 U.S.C. 181, et seq.), the Materials Act
of 1947 (30 U.S.C. 601 et seq.), and the General Mining Act of
1872 (30 U.S.C. 22 note).
(d) Protection of Legal Uses.--This section shall not be construed to
provide--
(1) authority to restrict legal uses, such as grazing,
hunting, or mining, on land under the jurisdiction of the
Secretary of the Interior or the Secretary of Agriculture; or
(2) any additional authority to restrict legal access to such
land.
SEC. 3. SUNSET.
This Act shall have no force or effect after the end of the 5-year
period beginning on the date of enactment of this Act.
PURPOSE OF THE BILL
The purpose of H.R. 1505, as ordered reported, is to
prohibit the Secretaries of the Interior and Agriculture from
taking action on public lands that impede border security on
such lands.
BACKGROUND AND NEED FOR LEGISLATION
H.R. 1505 resolves the turf war between the Border Patrol
and federal land managers within the Department of the Interior
and the Department of Agriculture that has put our national
security at risk. Currently, land management bureaus have the
authority to thwart border security activities under
authorities created by environmental laws such as the
Wilderness Act and the Endangered Species Act. Unfortunately,
these laws are being used to block the Border Patrol from
taking the actions needed to protect these federal lands and
control the border, allowing drug smugglers and human
traffickers to enter the country undeterred.
Congress mandated that the Border Patrol achieve
``operational control'' of the international borders of the
United States. Operational control is defined in statute as the
``prevention of all unlawful entries into the United States,
including entries by terrorists, other unlawful aliens,
instruments of terrorism, narcotics, and other contraband.''
While Congress has authorized large increases in manpower and
equipment for the Border Patrol, it has left regulatory
obstacles in its path that make operational control an
unattainable demand. H.R. 1505 will solve this problem by
exempting essential border security operations from significant
restrictions created by certain environmental laws.
Nearly unfettered access onto our federal borderlands by
illegal border crossers has devastated significant natural and
cultural sites. Tons of litter and other biological pollutants
are left behind as illegal traffic tramples federal property.
Cartels and smugglers are not known for their adherence to
environmental law, but the Border Patrol is bound by the
restrictions mandated by federal land managers.
The Border Patrol needs access to patrol the remote
landscapes found on much of the border. However, current law
requires them to ask permission of land agency bureaucrats to
do their job. The Border Patrol must obtain permission to enter
federal lands. The Border Patrol must obtain permission to
place monitoring equipment necessary to secure the border. The
Border Patrol must obtain permission to move equipment on
federal land. The Border Patrol must obtain permission to place
temporary camps that would keep Border Patrol agents in the
field doing their job. The Border Patrol must obtain permission
to maintain roads on federal lands. Land managers can take
months to grant these authorizations to the Border Patrol. At
times, permission is not given, leaving heavily trafficked
areas unprotected. There is no incentive for the local federal
land managers to cooperate with the Border Patrol.
This legislation would facilitate security access to
federal lands by extending the waiver authority previously
granted to the Department of Homeland Security and exercised to
build portions of the border fence between the U.S. and Mexico.
This authority would only encompass federal land within the
current statutory jurisdiction of the Border Patrol, defined as
100 miles from the international border. The authority also
expires in five years, which will allow Congress an opportunity
to determine if it needs extending or modification. Management
of federal lands will not change. The Department of the
Interior and Department of Agriculture will retain those
responsibilities and continue to oversee recreational and
economic uses of these federal lands. The Border Patrol is
prohibited from restricting legal uses of federal lands, such
as hunting, grazing, mining, camping, or using all-terrain
vehicles.
COMMITTEE ACTION
H.R. 1505 was introduced on April 13, 2011, by Congressman
Rob Bishop (R-UT). The bill was referred to the Committee on
Natural Resources, and within the Committee to the Subcommittee
on National Parks, Forests and Public Lands. The bill was
additionally referred to the Committee on Agriculture and to
the Committee on Homeland Security. On July 8, 2011, the
Subcommittee on National Parks, Forests and Public Lands held a
hearing on the bill. On October 5, 2011, the Full Natural
Resources Committee met to consider the bill. The Subcommittee
on National Parks, Forests and Public Lands was discharged by
unanimous consent. Congressman Rob Bishop (R-UT) offered an
amendment in the nature of a substitute. Congressman Colleen
Hanabusa (D-HI) offered an amendment designated .037 to the
amendment in the nature of a substitute; that amendment was
withdrawn. Congressman Raul Grijalva (D-AZ) offered an
amendment designated .001 to the amendment in the nature of a
substitute; that amendment was adopted by voice vote.
Congressman Raul Grijalva (D-AZ) offered an amendment
designated .002 to the amendment in the nature of a substitute;
the amendment was not adopted by a record vote of 13 to 25, as
follows:
No further amendments were offered, and the amendment in
the nature of a substitute offered by Mr. Bishop was adopted by
voice vote. The bill, as amended, was then ordered favorably
reported to the House of Representatives by a record vote of 26
to 17, as follows:
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation. Clause 3(d)(1) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(2)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974. Under clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives and section
403 of the Congressional Budget Act of 1974, the Committee has
received the following cost estimate for this bill from the
Director of the Congressional Budget Office:
H.R. 1505--National Security and Federal Lands Protection Act
H.R. 1505 would waive the requirement that the Department
of Homeland Security (DHS) comply with certain federal laws
when conducting border security activities on federal lands
within 100 miles of U.S. land borders. The bill also would
eliminate the requirement that DHS consult with the Department
of the Interior (DOI) and the U.S. Department of Agriculture
(USDA) before carrying out such activities. Based on
information from the affected agencies, CBO estimates that
implementing the legislation would not have a significant
impact on the federal budget. Enacting H.R. 1505 would not
affect direct spending or revenues; therefore, pay-as-you-go
procedures do not apply.
Under current law, DHS has the authority to waive various
environmental and land management laws when conducting certain
activities related to border security. The bill would provide a
broad waiver of those laws for all such activities conducted
within 100 miles of U.S. land borders and would eliminate the
requirement that DHS consult with DOI and USDA before carrying
out those activities. The provisions of the legislation would
expire five years after enactment.
H.R. 1505 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Jeff LaFave. The
estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
2. Section 308(a) of Congressional Budget Act. As required
by clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives and section 308(a) of the Congressional Budget
Act of 1974, this bill does not contain any new budget
authority, spending authority, credit authority, or an increase
or decrease in revenues or tax expenditures. Based on
information from the Department of the Interior and the U.S.
Department of Agriculture, CBO estimates that implementing the
legislation would not have a significant impact on the federal
budget.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill, as ordered reported, is to prohibit the
Secretaries of the Interior and Agriculture from taking action
on public lands that impede border security on such lands.
EARMARK STATEMENT
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes in existing
law.
DISSENTING VIEWS
The purpose of H.R. 1505 is not to make the border more
secure. Rather, the purpose of the bill is to use border
security as cover to effectively repeal more than a century of
environmental protection for Americans living and working along
our borders with Canada and Mexico.
In April, the Natural Resources Committee held a joint
oversight hearing with the House Oversight and Government
Reform Committee during which the Government Accountability
Office (GAO), the Interior Department, the Agriculture
Department and the Border Patrol all testified, under oath,
that federal land management laws do not impair border
security.
According to the GAO report (GAO-11-573T), 22 of 26 Border
Patrol Agents-in-Charge interviewed reported that federal land
management laws had no impact on the overall security status of
their jurisdiction. The four remaining Agents-in-Charge
reported that they had not requested increased resources to
mitigate the conflicts they saw or that their request for such
resources had been denied by the Border Patrol, not the
Interior Department.
In summary, the number of Border Patrol Agents-in-Charge
who found that federal land management laws were impeding
border security, but were prevented from fixing the problem by
the Interior Department, was exactly zero. The Administration
concurred with this finding at multiple hearings. The record is
clear--the problem this bill claims to solve does not exist.
The true purpose of this legislation is also clear. The
proponents oppose the more than 30 bedrock environmental
protections effectively repealed by this legislation--including
the Clean Water Act, Clean Air Act and Safe Drinking Water
Act--everywhere, not just within 100 miles of the border. H.R.
1505 employs a manufactured conflict with border security to
weaken their application.
The laws waived by this Act are the work-product of dozens
of Administrations and Congresses, developed after thousands of
hours of negotiation and compromise and, in most cases, were
enacted with strong, bi-partisan support. H.R. 1505 hands the
Border Patrol a unilateral veto over all of these laws.
This legislation grants the Chief of U.S. Customs and
Border Protection unprecedented power; application of dozens of
laws, impacting millions of acres and millions of people's
lives would be within the Chief's unilateral and unreviewable
control. Management of dozens of National Parks, wildlife
refuges, and forests would be ceded to DHS. Decisions regarding
whether our water is safe to drink, our air is safe to breath
and whether Superfund sites are to be cleaned up would all rest
with one individual.
Enactment of H.R. 1505 would not only allow DHS to trample
the ground near the border, it would also allow the agency to
trample the rights of states and Native People. This
legislation would empower individual Border Patrol agents to
enter Tribal land, without notice, and conduct any and all
activities--including excavation and construction--without
regard to the presence of Tribal sacred sites, burial sites, or
environmental impacts. Subcommittee Ranking Member Grijalva
offered an amendment to exempt Tribal lands from the sweeping
application of H.R. 1505 but that attempt to protect Tribal
sovereignty was rejected by the Majority.
The real problem of border enforcement is one of manpower,
budgets, economic incentives and difficult terrain. This bill
addresses none of these concerns. We will not secure our
borders by allowing our water to be polluted. We will not stop
illegal drug trafficking by allowing our air to get dirtier and
we will not stop terrorists from entering this country by
allowing toxic waste dumps along the border.
In the end, if H.R. 1505 reduces the number of immigrants
coming to this country, it will only be because the water, air
and economies of our border communities are so degraded that no
one wants to come here anymore.
This legislation is sweeping and reactionary; the bill is
not what it appears and should be rejected.
Edward J. Markey.
Raul M. Grijalva.
Rush Holt.
John Garamendi.
Grace F. Napolitano.
Niki Tsongas.
Colleen W. Hanabusa.
Ben R. Lujan.
Dale E. Kildee.