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Bill Would Give Homeland Security Absolute Power In The Desert

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The border fence in 2005 | Chris Clarke photo
The border fence in 2005 | Chris Clarke photo

A bill now making its way through Congress would give the Department of Homeland Security (DHS) unprecedented power to ignore Federal environmental laws on thousands of square miles of Federal and other lands.

The bill, dubbed HR1505 -- the "National Security and Federal Lands Protection Act", would exempt Homeland Security from following nearly three dozen environmental laws in its operations on lands managed by the Interior or Agriculture departments within a hundred miles of a land border, or 86 miles of a coastline.

The bill was introduced in April by Representative Rob Bishop, a Republican from the state of Utah who heads up the House Subcommittee on National Parks, Forests and Public Lands. It is intended to correct what its backers claim is deliberate obstruction of law enforcement activities by land management agencies. In the words of the sponsor:

[F]ederal land managers are using environmental regulations to prevent Border Patrol from accessing portions of the 20.7 million acres along the U.S. southern border and over 1,000 miles of the U.S.-Canada border. Border Patrol agents are consistently unable to use motorized vehicles to patrol these areas or place electronic surveillance structures in strategic areas. As a result, our federal lands have become a highway open to criminals, drug smugglers, human traffickers and potentially terrorists. This has led to escalated violence and also caused destruction of the environment.

Currently making its way through the House's relevant subcommittees, the bill has attracted significant opposition, including from within the Interior Department. Kim Thorsen, Deputy Assistant Secretary for Law Enforcement at the Department of the Interior, said in testimony on HR1505 before the House Public Lands subcommittee:

As drafted, this bill could impact approximately 54 units of the national park system, 228 national wildlife refuges, 122 units of the National Wilderness Preservation System managed by Interior, and 87 units of BLM's National Landscape Conservation System, resulting in unintended damage to sensitive natural and cultural resources, including endangered species and wilderness.

Thorsen pointed out that Homeland Security already gets ready and willing cooperation from Interior, including permission to use motorized vehicles in Wilderness areas during pursuit of suspects. One of the laws from which DHS would specifically be exempted, contained in sections of the California Desert Protection Act of 1994, reads as follows:

103 g: "(g) LAW ENFORCEMENT ACCESS.--Nothing in this Act, including the wilderness designations made by such Act, may be construed to preclude Federal, State, and local law enforcement agencies from conducting law enforcement and border operations as permitted before the date of enactment of this Act, including the use of motorized vehicles and aircraft, on any lands designated as wilderness by this Act.

In California, the law would apply to all of Imperial, Riverside, San Diego and Orange counties, most of Los Angeles County, and almost all of the rest of the state west of Interstate 5. The public lands at issue include National Parks, BLM lands and National Forests (including quite a few designated Wildernesses) National Wildlife Refuges, lands managed by the Bureau of Reclamation, and (theoretically) Indian reservations. The bill would also grant DHS significant powers over state parks and private lands near the border.

The bill would cover the entirety of the states of Hawaii, Florida, Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New Jersey, and Delaware, and at least half of a dozen more states. None of Rob Bishop's home state of Utah would be affected by the bill.

HR 1505 would affect the shaded areas of Southern California at a minimum | Google Earth map by Chris Clarke

Perhaps most troublingly HR1505 would remove any DHS obligation to comply with the Administrative Procedure Act, the basic federal law regulating conduct and overview of federal agencies. DHS would have no responsibility for public notice of construction projects, and people seeking redress of damages from DHS actions would essentially be out of luck.

The list of laws from which DHS would be explicitly exempted by HR1505 reads like a history of Environmental Law in the United States. It includes:

  • Administrative Procedure Act
  • Rivers and Harbors Act of 1899
  • Antiquities Act of 1906
  • Historic Sites Act of 1935
  • Bald Eagle Protection Act of 1940
  • National Wildlife Refuge System Administration Act of 1966
  • National Environmental Policy Act of 1969
  • Endangered Species Act of 1973
  • Noise Control Act of 1972
  • Archaeological Resources Protection Act of 1979
  • Safe Drinking Water Act
  • Federal Water Pollution Control Act
  • National Historic Preservation Act
  • Migratory Bird Treaty Act
  • Clean Air Act
  • Solid Waste Disposal Act
  • Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (The "Superfund" Law)
  • Wild and Scenic Rivers Act
  • Farmland Protection Policy Act
  • Coastal Zone Management Act of 1972
  • Wilderness Act
  • Federal Land Policy and Management Act of 1976
  • Fish and Wildlife Act of 1956
  • Fish and Wildlife Coordination Act
  • Otay Mountain Wilderness Act of 1999
  • California Desert Protection Act of 1994
  • National Park Service Organic Act
  • National Park System General Authorities Act
  • sections of the National Parks and Recreation Act of 1978
  • Arizona Desert Wilderness Act of 1990
  • American Indian Religious Freedom Act
  • Religious Freedom Restoration Act of 1993
  • Forest and Rangeland Renewable Resources Planning Act of 1974
  • Multiple-Use Sustained-Yield Act of 1960

Perhaps with an eye to short-circuiting some public opposition, the bill mentions the "Religious Freedom" laws and the Bald Eagle Protection Act only by their Public Law numbers.
All this comes in the context of dwindling migration across the border, as enforcement of the law becomes more punitive and economic opportunities in the US less attractive.

In 2005, I spent some time working on a story on the environmental effects of border enforcement, and saw first-hand the damage wrought on the fragile desert environment by construction of the border fence -- as well as by the thousands of desperate migrants shunted into the desert by Federal decisions to tighten ports of entry at San Diego and El Paso in the 1990s. Even then, it was accepted practice for Border Patrol agents to use motorized vehicles in wilderness areas in places like Organ Pipe National Monument and the Cabeza Prieta National Wildlife Refuge: the Border Patrol needed merely notify land managers after the fact.

California's deserts overwhelmingly consist of public land, and much of the desert is within 100 miles of the border -- including every square inch of Joshua Tree National Park. Though Arizona has for a decade or more been the front line of the border crossing issue, with thousands of migrants dying of exposure, accidents and violence in the remote desert, California's outback is not far behind. Granting DHS carte blanche to commit to road-building, fencing, brush clearing, building of holding centers and surveillance installations, and other projects with no public oversight or checks and balances is a recipe for ecological catastrophe.

HR1505 should be seen for what it is: an ideologically driven attack on a century of environmental law using border security as a smokescreen. Illegal immigration is declining, and in any event is best treated as a humanitarian issue; DHS already has the absolute cooperation of its fellow federal agencies. The bill is a frontal assault on environmental protection, and California's deserts will pay the price if it passes.

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