Will Congress Restore the Rule of Law or Build More Border Walls?

By Scott Nicol

The walls that are tearing through border communities and wildlife refuges have nothing to do with national security, immigration policy, or drug control. The construction of border walls merely allows for political posturing during election cycles. Politicians and pundits decry our nation’s “broken borders,” and blame undocumented immigrants for all of our nation’s ills, from unemployment to failing schools to municipal budget shortfalls to crime. Scapegoats are convenient, especially when they cannot vote, and scapegoating distracts voters from politicians’ inability to solve any of these problems. And so, two weeks before the 2006 mid-term election, the Secure Fence Act was signed into law. Two an a half years later the walls that it mandated are nearing completion, and we as a nation must decide what happens next.

One path forward was proposed by Representative Raul Grijalva, whose southern Arizona district is now home to mile upon mile of border wall. Last month he introduced the Border Security and Responsibility Act (HR 2076). This legislation seeks to prevent future border security measures from repeating the worst abuses that have accompanied border wall construction.

While the Secure Fence Act established walls as the primary strategy for controlling the border, the Border Security and Responsibility Act would instead, “give first priority to the use of remote cameras, sensors, removal of non-native vegetation, incorporation of natural barriers, additional manpower, unmanned aerial vehicles, or other low impact border enforcement techniques.” Border walls, which have been shown to be largely ineffective, go to the back of the line.

HR 2076 would also require the Department of Homeland Security to develop a comprehensive cost-benefit analysis, comparing the full range of possible strategies for protecting the border. Along with looking at whether border walls actually stop anyone, DHS would have to factor in land acquisition costs, construction costs, maintenance costs over 25 years, impacts on wildlife, impacts on hydrology, and the costs of mitigating adverse impacts to Federal, state, local, and private lands and waters. The costs and benefits of border walls would then be compared to similar analyses of adding more Border Patrol agents, so-called “virtual” fences, natural barriers, removing non-native vegetation, and increasing cooperation with Mexican and Canadian authorities.

Sign on private property near Brownsville, Texas that will be cut off by the border wall.

Rather than shutting out border residents and other stakeholders, Rep. Grijalva’s bill would require the Secretary of Homeland Security to consult with other federal agencies, tribal governments, local officials, and private property owners to minimize the negative impacts of border security measures. Real consultation that allows for meaningful input from those who live and work along the border would be a tremendous change for the better.

Most importantly, it would strike the provision of the Real ID Act that gives the Secretary of Homeland Security the power to waive any law that he or she sees fit in order to build border walls. No longer would one unelected Administration appointee have the power to sweep aside laws passed by Congress and signed by presidents. The rule of law would be restored along our nation’s southern border.

And this restoration is critical. When former Homeland Security Secretary Chertoff waived 36 federal laws last year, he was not simply cutting red tape. He knew that in building border walls he would be violating those laws. Those laws were enacted to prevent the kind of damage that we see everywhere border walls have been built.

In California’s Otay Mountain Wilderness Area, mountainsides above the Tijuana River are currently being dynamited to build the border wall. When DHS proposed building walls in these rugged mountains the Environmental Protection Agency raised concerns that the dumping of tons of rubble, and the erosion that would follow, would clog the river and violate the Clean Water Act. Normally that would be a moot point, because it is illegal to drive a motorized vehicle in a Wilderness Area, much less plant dynamite. But with the Wilderness Act and the Clean Water Act waived, blasting is occurring today, and will continue through the summer.

Texas border communities rely on the Rio Grande for irrigation and drinking water. But Secretary Chertoff waived not only the Safe Drinking Water Act and the Clean Water Act, but also “all federal, state, or other laws, regulations and legal requirements of, deriving from, or related to the subject of” those, and 34 other, laws. So where the wall has been built, in El Paso and Eagle Pass and Hidalgo and Brownsville and other border communities that draw water from the Rio Grande, all laws “related to the subject of” water are no longer in effect. This absurd situation has prompted the El Paso County Water Improvement District No. 1 and the Hudspeth County Conservation and Reclamation District No. 1 to take part in a lawsuit challenging constitutionality of the Real ID Act’s waiver authority.

"Floating fence" border wall design on top of the flood control levee in Cameron County, Texas

The border wall has been tremendously destructive, both to American lands, American communities and the American tradition of rule of law. But with most of the Secure Fence Act’s 670 miles of border wall close to completion, some might ask why the provisions of the Border Security and Responsibility Act are needed.

The answer came on the same day that Representative Grijalva introduced HR 2076, when Rep. Duncan D. Hunter introduced the Border Sovereignty and Protection Act. Apparently, Hunter Junior inherited the bad politics of his father along with his name and Congressional seat. His father bragged in campaign ads that he had built the border wall, and that it was a stunning success. Ignoring the question of why more walls are needed if the first walls had already done the job, Hunter Junior’s bill requires, “two layers of reinforced fencing along not fewer than 350 miles of the southwest border” in addition to all that has already been built. It also provides a blank check to pay for construction.

"Triple-layer fence" border wall design near San Diego, California

Grijalva’s bill requiring consultation, a cost-benefit analysis, and the restoration of the rule of law currently has 20 cosponsors. Hunter’s bill, requiring another 350 miles of double-layered border wall and providing unlimited funds to pay for them, currently has 26 cosponsors.

When the first sections of border wall were built in southern California in the mid 1990s, the Congressional Research Service found that they had “no discernible impact” on the number of undocumented immigrants who entered the United States each year. Rather than realize that the wall was a failure, border wall proponents, most notably Duncan’s dad, decided that the wall was not long enough. Now that another 600+ miles of border wall have been built, and the Border Patrol routinely refers to them as “speed bumps,” the cry goes up for more walls. In the perverse logic of those who have tied their political careers to the border wall, if the wall is a failure, it is simply because it is too short.

If this logic is allowed to prevail, mile upon mile of new border wall will be built with no concern for the communities or ecosystems that lay in their path. That is why passage of Representative Grijalva’s Border Security and Responsibility Act is so critical. It restores a degree of sanity to border policy, forces the federal government to respect the legal rights of border residents, and gives us a seat at the table when decisions are made regarding our home.

The Border Wall vs. Property Rights: Texas’ Senators Support the Wrong Side

by Scott Nicol

To build the border wall the federal government has brought condemnation lawsuits against more than 300 Texas landowners. Homeowners, farmers, nature preserves, and municipalities all face the imminent loss of their property for a patchwork of walls that have “no discernible impact” on the overall numbers of immigrants or smugglers who cross the border, according to the Congressional Research Service. The wall is a rhetorical point used by politicians who do not represent border communities to claim that they are working to protect the homeland. For them, the real impact of the border wall is irrelevant; all that matters is the perception among voters who will never actually see it. Members of congress who do represent Texas border residents should be fighting to defend our lands and our homes, literally the homeland that the border wall is supposed to secure. Instead, Texas’ Senators have worked to fund and build the wall that today stands in Hidalgo County and is tearing through Brownsville.

Land nearest the Rio Grande has always been prized because of the rich soil and the year-round availability of water. Many families along its banks still hold title to lands that were granted to their forefathers by the King of Spain as early as the 1740’s, decades before the United States and Mexico became sovereign nations, and more than a century before the Rio Grande became their shared border. For these owners, the land is a priceless piece of their family’s history.

Eloisa Tamez’ property has been in her family since the King of Spain issued the San Pedro Carracitos Land Grant in 1763. In 2007 DHS demanded access to her property for border wall surveys, then initiated condemnation proceedings. Dr. Tamez enlisted the Center for Human Rights and Constitutional Law and initiated a class-action lawsuit alleging that DHS has refused to negotiate with landowners before condemning their property, as the law requires. She also demanded that DHS reveal its criteria for citing the border wall, which in places runs for miles through poor and/or minority communities, then ends abruptly at the property line of wealthy property owners and resort communities. David Pagan of Customs and Border Protection responded, "We do not plan to suspend work on the construction of fence in order to hold a series of additional consultation meetings." On April 15, 2009 the court ruled against Dr. Tamez’, allowing the federal government to seize her land. Within a week the border wall had been built across her property.

Last February Eva Lambert awoke to the sound of heavy equipment erecting the border wall’s steel posts on her land. In her case, either through disregard for the law or incompetence, DHS finished construction of the wall before anyone had contacted her to negotiate a price or condemn her property. Denied her day in court as well as her property, Ms. Lambert is still waiting to find out what compensation will be offered. As she told the Brownsville Herald, "In the end, the government does what it wants."

In the low-lying river delta of South Texas, the treaty that established the Rio Grande as the border prohibits construction between the levee and the river. This is because a structure immediately adjacent to the river could deflect floodwaters and shift the river’s course, resulting in a change in the international boundary. So, to comply with the treaty, the border wall is being built into, on, or behind the flood-control levee that parallels the river rather than immediately adjacent to it. This levee is located up to two miles north of the river, leaving thousands of acres of U.S. territory, much of it privately owned, behind the border wall.

The Department of Homeland Security has offered only to pay for the exact footprint of the border wall (typically, a 60-foot wide strip) as it passes through a parcel of land. In their simplistic calculations, the agency has completely issues such as the devaluation of contiguous property, problems accessing land and homes behind the wall, impacts on livelihood, and the importance of cultural heritage. Despite the range and complexity of these issues, DHS has steadfastly refused to enter into meaningful negotiations with property owners.

The Nature Conservancy’s Southmost Preserve maintains one of the last remaining Sabal Palm forests along the banks of the Rio Grande. The border wall will bisect the preserve, cutting off more than 700 acres along with an equipment barn, office, and caretaker’s residence. The property was purchased in 1999 for $2.6 million, but DHS has only offered to pay $114,000 for the wall’s footprint, a strip of land 60 feet wide and 6,000 feet long. DHS has refused to explain how they will access the property that will be behind the wall. They claim that gates will be built, but they won’t say who will get keys or under what circumstances Conservancy staff will be able to access the property. Like Dr. Tamez, the Nature Conservancy is attempting to use the courts to save their land.

Other homes, businesses, and properties that are behind the levees will be walled off entirely, trapped between the wall and the Rio Grande. DHS has refused to grant any compensation whatsoever for properties left on the “Mexican” side of the wall. Indeed, because DHS is focused solely on the wall’s exact footprint, they have failed to even make contact with some of the landowners with property behind the wall.

The Sabal Palm Audubon Center preserves another 557 acres of Sabal Palm forest, which will also be behind the border wall. Because the wall will be built a few feet to the north of their property line, DHS has not offered Audubon any compensation whatsoever. Both Audubon and the Nature Conservancy have said that restricted access for their employees may force them to cut their operations. There is also the concern that uncertain access for emergency personnel may make it impossible to purchase the insurance that allows busloads of local school children to visit the center. With construction of the border wall imminent, Audubon announced that on May 15, 2009 they will close to the public for at least the next 6 months.

The Department of Homeland Security has repeatedly claimed that they have consulted with landowners and local officials regarding border wall construction. But when the Texas Border Coalition repeatedly invited DHS and Customs and Border Protection officials to “walk the line” and see the impacts that the border wall will have on specific communities, they responded that they would only do so if the owners of the property that they would be crossing were kept away. Apparently, their preferred method of consultation is a condemnation proceeding.

In the face of these assaults on property rights by the federal government, one would expect Texas’ conservative Senators to stand up for their constituents. Private property and small government are central tenets of both of their stated philosophies. In July of 2007 Senator Cornyn told reporters, "I assure you there will be local consultation. There will not be ... unilateral actions on the part of the Department of Homeland Security without local input."

Senator Hutchison did add an amendment to the 2008 Omnibus Appropriations Bill that gave the Secretary of Homeland Security the flexibility to decide where walls should be built, as well as to spare places where walls do not make sense. The Homeland Security Secretary was also required to, “consult with the Secretary of Interior, the Secretary of Agriculture, States, local governments, Indian tribes, and property owners in the United States to minimize the impact on the environment, culture, commerce, and quality of life for the communities and residents located near the sites at which such fencing is to be constructed.”

Following howls of outrage from right wing pundits and politicians that she had “gutted” the Secure Fence Act, Hutchison backed away from her amendment. She has yet to confront DHS on its refusal to consult with property owners, as epitomized by its demand that landowners be kept away from any DHS employees who walk the line through their property. So long as she is afraid to fight on behalf of Texas landowners, the amendment that she authored is just more empty words.

Senator Cornyn’s statements assuring that there will be local consultation have also proved to be empty. Like Senator Hutchison, he has made no concrete effort to stand up for border residents. Instead, Cornyn sponsored the “Emergency Border Security Funding Act of 2007” which called for 700 linear miles of border wall and 300 miles of vehicle barriers along the US – Mexico border, and provided $3 billion dollars to build it. Cornyn’s bill went nowhere, but even without it DHS has received $3.1 billion to build the border wall.

On April 2, 2009, the one year anniversary of former Homeland Security Secretary Chertoff’s border-wide waiver that swept aside 36 federal laws, both of Texas’ Senators voted to add a motion to the Omnibus Appropriations bill that read, “To provide for a point of order against any appropriations bill that fails [to] fully fund the construction of the Southwest border fence.” The vote fell along party lines and failed, but in voting once again in favor of the border wall Hutchison and Cornyn chose party loyalty over the interests of their constituents.

This should not come as a surprise. When Cornyn looks back at the last election, he will look to the north Dallas suburbs as important to his win, not 540 miles south of Dallas to Brownsville. When Hutchison thinks about her upcoming bid to unseat Governor Perry, she will be counting on votes in Sugarland, not El Paso. Though they claim to represent the entire state, so long as they see border communities as politically irrelevant they will not work on our behalf.

The fact that their neglect is not surprising does not make it acceptable. Our Senators, as well as our U.S. Representatives and our President, were put in office to work for all of us. They can not be allowed to play favorites. When they do we need to speak up.

Some border representatives are working to defend border communities. Representative Grijalva of Arizona has authored HR 2076, The Border Security and Responsibility Act. It would require that the Department of Homeland Security work with border communities and landowners in developing security measures, rather than treat them as the enemy. DHS would also have to obey all of our nation’s laws, instead of sweeping away those which are seen as an inconvenience. Cosponsoring this bill in the House, or introducing a companion in the Senate, would be a concrete demonstration of support for border residents.

With this bill pending and walls under construction, it is critical that our members of Congress hear from their constituents right now. Urge them to support the Border Security and Responsibility Act. Demand that they work to stop further walls from tearing through the borderlands. Though only around 50 miles of border wall remain to be built it is not too late to stop it. If you lived in a home, or owned a farm, or worked at a wildlife refuge that is in the path of one of those miles, you would see every last mile as important.

So long as we sit quietly by and watch the border wall go up, we are irrelevant in the eyes of Congress. If we do not make our voices heard, and make our elected officials listen, mile upon mile of wall will be built. And while we can rail against the politicians who sacrifice our home for political gain, if we are silent we own a portion of the blame.

Grijalva Introduces Legislation to Protect and Conserve Public Lands along Border

US Representative Raul Grijalva has introduced legislation which would reverse some of the worst abuses of the Department of Homeland Security's implementation of the Secure Fence Act and the Real ID Act. Below is the press release issued by his office.

Washington, D.C. – Today, Congressman Raúl M. Grijalva introduced legislation that will help secure and conserve public and tribal lands along the international land borders of the United States.

The Border Security and Responsibility Act of 2009 will secure and conserve federal public lands along the international land borders of the U.S. and provide the highest protection possible while ensuring that all operations necessary to achieve border security are undertaken.

The legislation will also help mitigate damage to federal and tribal lands from illegal border activity and border enforcement efforts by increasing coordination and planning between the Department of Homeland Security (DHS), federal land management agencies and local, state and tribal governments.

The legislation will also correct existing policies and allow flexibility for a local approach to border security, instead of mandating an unrealistic and harmful wall.

“Current policy has driven crossing activity to remote isolated areas along the border which, in Southern Arizona, represent significant public and tribal lands,” said Grijalva. “Many of these lands have suffered extensive environmental degradation as a result of unauthorized activity and border security efforts. This bill is the first step in preserving our unique natural heritage while we protect our borders.”


The Border Security and Responsibility Act of 2009 will:

1. Require the Department of Homeland Security to consult with federal land managers and state, local, and tribal governments in creating a Border Protection Strategy that supports border security efforts while also protecting federal and tribal lands.

2. Provide for flexibility, rather than a “one size fits all” approach, to border security by allowing experts at DHS to decide upon best strategies for border security.

3. Allow land managers, local officials, and local communities to have a say in border security decisions, requiring full public notice and participation.

4. Ensure that laws intended to protect air, water, wildlife, culture, and health and safety are fully upheld.


Under the Bush Administration, the passage and implementation of the Secure Fence Act and REAL ID ignored environmental, health and safety laws that had been in place for decades. The Border Security and Responsibility Act amends the current law, which pursues a “one fence fits all” solution. The legislation ensures that local experts are part of the planning and evaluation of security measures that would be more effective and have a lower impact on the border environment.

“This multi-disciplinary approach is the correct path for addressing a growing crisis in a rapidly changing geopolitical reality,” stated Grijalva. “The Border Security and Responsibility Act will strengthen border security, protect the environment and uphold the health of the border community by allowing all agencies to work together cooperatively.”

Secretary Napolitano Must End DHS’ Abuse of Texas Border Communities

By Stefanie Herweck

Over the past two years, the Department of Homeland Security (DHS) and the organizations that it manages, Customs and Border Protection (CBP) and the Border Patrol, have shown a deep-seated indifference to the welfare of those of us living on the Texas-Mexico border. These agencies have treated our elected leaders with disrespect, they have assumed an adversarial relationship with the public, and they have shown disdain for border communities, culture, and the environment. These actions have seriously undermined DHS’s credibility along the Texas border and have fostered a great deal of antagonism.

The border wall is the clearest example of this. The border wall project has been propelled by a blind determination to build as many miles of wall as possible regardless of cost, safety, effectiveness, and environmental damage. It has been shrouded in secrecy, and DHS has purposely obfuscated time and time again, as though border residents have no right to know what is happening in their communities and even on their own property.

Levee-border wall in Hidalgo County, Texas February 22, 2009

In June 2007, they started with a lie to the Texas Border Coalition. Texas border mayors and other community leaders were assembled to hear details about the border walls that would run through their cities. Border Patrol Chief David Aguilar told them that he could give them few details because even though he had attended the signing ceremony for the Secure Fence Act nine months earlier, the border wall plans were still sketched on “the backs of napkins.” At the exact same time in another location, the Border Patrol held a private meeting with landowners, during which detailed maps of the proposed route of the wall were displayed.

DHS lied again in order to comply with legislation that requires local consultation. When ask to submit proof of the “18 town hall meetings” that they claimed to have held, they listed random phone calls and lunch meetings with single individuals, but no actual town hall meetings.

Then, in the ultimate act of negligence, DHS decided that border residents should not be protected by the laws that govern the rest of the country, and Bush Administration Secretary Chertoff waived 36 federal laws in order to slam the border wall through the Texas borderlands regardless of its impact on public safety and the environment. The Safe Drinking Water Act, National Environmental Policy Act, and others that protect the rest of the nation no longer apply where the wall is being built.

Border wall "pickets" in front of the wall in El Calaboz, Texas March 14, 2009

Yet another DHS policy revealed this same disregard for public safety. Shortly before hurricane season last year, the news broke that in the event of a hurricane making landfall in the Rio Grande Valley, the Border Patrol intended to check documents of every Valley resident seeking to evacuate or seeking entrance into a shelter. According to Border Patrol’s plans, anyone without the proper documentation would be immediately arrested and placed in a detention facility.

Worried that this policy would cause a bottleneck at the checkpoints and the unjustified arrests of citizens fleeing in haste without documents, border leaders and residents decried the practice. Advocates for colonias complained that it unfairly risked the safety of the poor, elderly, and those with limited English who would be afraid to evacuate. Since many people would be unwilling to leave their undocumented family members, this policy could mean many thousands of people left in the path of a deadly storm.

In the face of criticism that DHS was willing to put so many human lives in jeopardy, and the perception that they might even be taking advantage of a natural disaster to make more arrests, Secretary Chertoff downplayed the policy and said that the Border Patrol would not impede evacuations. However, when Hurricane Dolly bore down on the Rio Grande Valley in July 2008, the Border Patrol continued to arrest undocumented immigrants who tried to pass through the checkpoints.

Although there has been a change in administration, the agency is still primarily staffed by the same officials that crafted and implemented DHS's stance during the last administration. Among them is the CBP employee who in February gave the Brownsville City Commissioners an arbitrary deadline to accept a border wall deal. The deadline was later repudiated by Secretary Napolitano, who had not been informed of it, after U.S. Representative Ortiz intervened on Brownsville’s behalf.

Under the Obama administration, DHS has also maintained its indifference toward the landowners whose properties are being directly affected by the construction of the border wall. Having long refused to provide landowners and their elected officials with a detailed border wall plans, they sabotaged yet another opportunity to explain where and how the wall will be built when they refused to “walk the line” with the Texas Border Coalition in February. DHS said that they were willing to visit a very few of the properties where the border wall would be built with TBC, but the property owners must be kept away.

Border wall behind a home in Cameron County, Texas March 14, 2009

In perhaps the ultimate act of disrespect to landowners, as well as evidence of sheer incompetence and unprofessionalism, last week brought news that DHS usurped one Cameron County resident’s property for the border wall without a contract and without offering compensation. Eva Lambert woke up one morning to find the border wall being constructed across her backyard. It wasn’t until after the wall on her property was finished that she was visited by a DHS official.

Given this track record, it is no surprise that Texas border residents are suspicious of DHS’s latest scheme to eradicate Carrizo cane by aerially spraying an herbicide in Laredo. This proposed spraying project is certainly following the modus operandi of DHS under the Bush Administration. There was a mere one-day public comment period on the Environmental Assessment for the project last summer, and that assessment itself was not made available online until last month, 2 days after the Laredo City Council had granted Customs and Border Protection an easement to spray. CBP attempted to move up the timeline for spraying from June 2009, as stated in the Environmental Assessment, to immediately. And they did not bother to consult with the City of Nuevo Laredo across the border in Mexico, whose drinking water intake is immediately downstream from the spraying area. The rejection of meaningful public input, the headlong push to implement a controversial project as quickly as possible, and the apparent disregard for the health and safety of Texas and Mexico border residents are all hallmarks of DHS’s operations along the border.

This behavior reinforces the widespread notion in Texas border communities that the Department of Homeland Security is an agency motivated by politics and ideology rather than the facts on the ground and the welfare of citizens. Unless and until DHS, CBP and Border Patrol transform the way that they operate on the border, unless and until they show real sensitivity to border communities and real stewardship to border natural areas, their operations and projects will continue to be regarded with a high degree of suspicion and even hostility on the Texas border. This will certainly undermine their ability to fulfill their mission to protect the United States.

Secretary Napolitano must begin immediately to mend the broken relationship between DHS and border residents. This will require an attitude shift across the entire agency: DHS must recognize that for millions of people, the borderlands are the homeland. Instead of viewing the border as the frontline in a war zone, Secretary Napolitano needs to instill in her agency the understanding that the people who live on the border are entitled to the same rights and privileges, and due the same protections, as those who live in any other part of the United States. Proximity to the Rio Grande does not dissolve our constitutional guarantees to private property or equal protection under the law.

Secretary Napolitano will have little success in reversing the Department’s abusive practices until she replaces the ideologues that her predecessor hired. Even as she speaks to Congress and in the press about bringing change to DHS, holdovers from the last administration tell Congress and the press that there will be no change. So long as they are willing to go so far as to issue ultimatums on behalf of the Department of Homeland Security without bothering to inform its new leadership, any positive changes that she wishes to make will dissipate before they make it from Washington, D.C. to border communities.

Tremendous damage to the Texas borderlands has already been done by former Secretary Chertoff, but in a few places it is not too late to stop border wall construction and thereby signal that change is real and profound, rather than just a campaign slogan. Where the wall has not yet been built because condemnation lawsuits are still in court, DHS should drop its court case and enter into meaningful negotiations.

Finally, if Secretary Napolitano truly sees the defense of our nation’s laws as a fundamental part of her new job she should rescind former Secretary Chertoff’s Real ID Act waivers and restore the rule of law to the Texas border. It is absurd to claim that immigration rules supersede every other law that has been passed by Congress or the states. It is offensive to claim that living near the border strips U.S. citizens of legal protections that are enjoyed by the rest of the nation. Secretary Napolitano must defend all U.S. citizens and all U.S. laws, and repudiate Secretary Chertoff’s practice of picking and choosing which to prioritize and which to ignore.

The new Administration has a tremendous opportunity to reverse the Bush administration’s abuses, and to begin to repair the damage that was done. But they must act immediately. Right now, landowners are facing condemnation proceedings. Right now, construction crews from South Texas to San Diego are erecting border walls. Right now, laws that should protect border residents are suspended. We have yet to see the change that we have been promised, and that we so desperately need.

Sabal Palms Audubon Sanctuary Will Close to the Public Thanks in part to the Border Wall

The Audubon Society issued the following press release today, announcing that thanks in part to the impending construction of the border wall they will be forced to curtail public access to the Sabal Palms Audubon Sanctuary. The Sanctuary is just downriver from Brownsville, Texas. The entire refuge lies between the Rio Grande and the flood control levee. DHS' current plan is to construct the border wall on the levee, completely cutting off the refuge. Because the wall is in front of the refuge, but does not touch it, Audubon has not been offered any compensation.

FOR IMMEDIATE RELEASE:

Audubon Texas will reduce hours of operation at the Sabal Palm Audubon Center and Sanctuary effective May 15, 2009. Combined impacts of the declining economy and continued uncertainty over the proposed border fence are forcing Audubon to curtail public programs and access at the center outside Brownsville, Texas, in order to continue its primary conservation mission there.

The sanctuary's original mission of preserving one of the nation's last oases of healthy sabal palm habitat had been augmented in recent years by nature education efforts that expanded its role to that of a community nature center. Regrettably, donors buffeted by the recession have significantly cut back support and there is uncertainty about the Homeland Security border fence that threatens to cut off the facility from the community, effectively decimating the sanctuary's operating budget.

"Funding must go first and foremost to maintaining the sanctuary and protecting the habitat, "said Audubon Texas Executive Director, Bob Benson. "Our first priority is to keep the habitat healthy for native wildlife and to ensure that its natural wonders remain intact for the inspiration, sustenance and education of future human generations.

"

The 557-acre property, owned by The National Audubon Society, is home to the last remaining largest stand of native sabal palms in the nation; and is among the most biologically diverse regions in the Lone Star state. Aside from being a birder's paradise, rare plants and animals are seen here in this unique sub-tropical habitat.

Audubon will focus its resources on protecting and managing the sanctuary through a new schedule that includes months with limited access to the public. The following schedule will be in effect until further notice:

May 15 – Oct. 15 CLOSED TO THE PUBLIC

Oct. 15 – Dec. 15 OPEN WEEKENDS ONLY (Saturday & Sunday)

Dec. 15 – May 15 OPEN Tues – Sunday, 9 a.m. to 5 p.m.

The sanctuary will still offer scheduled group tours for $10/person during the closed season; they can be arranged through the sanctuary manager. Individual admission during the open season will be $6.00 per person.

"It's unfortunate that we won't be able to maintain the current operation schedule," added Benson, "but Audubon will continue its vital work with the conservation community to protect the last vestiges of the sabal palm forest for future generations to enjoy. That's the mission that brought Audubon to the area, and it's a mission we will accomplish."

427 Sterzing Street #105-B w Austin, Texas 78704-1026
Contact: Bob Benson, Executive Director, 512-469-7891 or bbenson@audubon.org

Hidalgo County's Border Wall is Nothing to Brag About

By Scott Nicol

Last March, Hidalgo County Judge JD Salinas cut a deal with Department of Homeland Security Secretary Michael Chertoff to build part of the border wall. Rather than build the wall to the north of the levee, DHS would insert it into the levees in Hidalgo County. It was estimated that this would raise the per-mile cost from $3 million to $5 million, so the county agreed to pay $44 million. When the bids came in, the low bids were $12 million per mile. As a result of Judge Salinas' capitulation Hidalgo County's border walls are nearly finished, while neighboring Starr County's wall construction has not begun, and Cameron County's is just beginning. They still have the chance to fight to halt construction, while for Hidalgo County the fight moves from stopping the wall entirely to preventing pro-wall zealots from filling in the spaces between levee-walls.

In his recent State of the County address, Judge JD Salinas made statements regarding the levee-border wall that were, to put it charitably, less than honest.

Judge Salinas said,

"The levee-barrier, which was the alternative reached by the Hidalgo County Drainage District and the U.S. Department of Homeland Security, is now 95 percent complete. This solution has saved residents and businesses from purchasing $150 million per year in mandatory flood insurance. It has prevented private land from being taken by the federal government, and the flood control structure is more environmentally-sensitive than the proposed border fence."

As to his first point regarding the money saved by residents who will not need to purchase flood insurance, the levee-border wall did not replace all of the levee sections in Hidalgo County that were deemed inadequate. In a number of instances, portions of our levees that were not in need of repair were ripped apart to insert border walls. Other sections that are still in bad shape were not touched by the levee-border wall scheme. This is because the locations of levee-border walls had nothing to do with Hidalgo County’s flood control needs. They were decided upon by the Department of Homeland Security, without consulting locals, and without regard to the condition of the flood-control levees in any given area.

Luckily for Hidalgo County property owners, the economic stimulus package contains funds to rebuild our remaining decrepit levees. It is these repairs that will keep us from having to purchase flood insurance, not the border wall. If Judge Salinas had not capitulated to the demands of the Department of Homeland Security, those funds would also have been available to repair the levees in the places that are now border walls. Unfortunately for Hidalgo County residents, there is no money in the stimulus package to reimburse us for the $44 million that Judge Salinas spent to build the levee-border wall. Congress almost never appropriates money for projects that are already finished, so it is highly unlikely that Hidalgo County taxpayers will ever be reimbursed for the levee-border wall. Rather than save us millions, as he claims, the border walls that Salinas built have cost us millions of dollars.

As for the idea that the levee-border wall is better for the environment than Homeland Security’s original border wall designs, Judge Salinas knows full well that the opposite is true. Last March the US Fish and Wildlife Service (USFW) wrote a letter to the Department of Homeland Security in response to the plan to build levee-border walls in Hidalgo County. It said,

“This combined project would eliminate wildlife passage by replacing CBP’s original “wildlife friendly” fence design with an impermeable 16 to 18 foot high wall built into a flood control levee. This new project design would effectively eliminate the wildlife passage component of the earlier design and would impair the ability of the wildlife corridor to fulfill its function. […] We would like to document that any proposed fence and/or levee segment that bisects lands within the Lower Rio Grande Valley National Wildlife Refuge cannot be found compatible with the purposes for which the Refuge was established.”

Today the levee-border walls in Hidalgo County hit 12 tracts of the Lower Rio Grande Valley National Wildlife Refuge, along with 3 tracts managed by Texas Parks and Wildlife, a World Birding Center, and property owned by the Nature Conservancy.

In contrast to Judge Salinas’ claims of environmental benefit, former Secretary of Homeland Security Michael Chertoff knew that the levee-border wall would violate numerous environmental laws. Last April he used the Real ID Act to issue 2 waivers of federal laws, one of which was specifically for the Hidalgo County levee-border wall. It brushed aside 27 laws, including the Endangered Species Act, the Migratory Bird Treaty Act, the Safe Drinking Water Act, and the National Environmental Policy Act. If the wall was in any way “environmentally-sensitive”, as Judge Salinas says, Chertoff could have left these laws in effect.

A visit to the Old Hidalgo Pumphouse World Birding Center makes the negative environmental impact of the levee-border wall painfully clear. The path that once led from the birding center into the adjacent USFW refuge tract is blocked by a concrete wall topped with rusting steel pickets. Not only are wildlife such as bobcats, or even endangered ocelots, stopped from moving freely, but birders and eco-tourists are also unable to access the 600 acre wildlife refuge tract that contains the birds and wildlife that they come to see.

The Old Hidalgo Pumphouse World Birding Center opened in April of 2007, and was the result of a joint effort of the city of Hidalgo, Hidalgo County, Texas Parks and Wildlife, and US Fish and Wildlife. Like other World Birding Centers in the Rio Grande Valley, it is meant to both preserve natural habitat and bring eco-tourists. Eco-tourism brings $125 million per year to the area, and Hidalgo hoped to attract some of those dollars. But eco-tourists come to see nature, not towering concrete and rusting steel, so the millions that have been invested to develop the birding center have been lost.

Tourists are also unlikely to visit a place that they think is a war zone. In the past few weeks the national press has been filled with sensationalistic headlines about the possibility that Mexico will become a “failed state”, and that violent “spillover” will sweep through border communities. Such stories generally fail to mention that while Juarez is being racked by violence, FBI statistics show that El Paso, just across the Rio Grande, is the third safest large city in the United States. San Diego and Brownsville are likewise far safer than the nation’s capitol, Washington, DC. Instead of refuting this misperception, Governor Perry and Senator Cornyn have reinforced it with calls for the mobilization of troops on the border. When people in Middle America hear this, and see that Hidalgo County’s Judge collaborated with the Department of Homeland Security to build the border wall, it looks like further evidence that Mexico poses a military threat to South Texas. Who in their right mind would come here on vacation?

The headlines screaming about “spillover” violence are already being used to call for a further militarization of the border. When the first walls built in California failed to slow the influx of immigrants, the response from Congress was not to try something else. Instead, two weeks ahead of the 2006 midterm election, they passed the Secure Fence Act, which called for more walls. With members of Congress trying to look hawkish on Homeland Security, there are guaranteed to be calls to build even more border walls. In the Rio Grande Valley the border wall is in 21 separate sections, ranging from nine-tenths of a mile to 6 miles long. It will be much harder to fight off calls to fill in the gaps in South Texas’ border wall with Judge Salinas’ repeatedly praising the levee-border wall. If the walls that he has already helped to build are such a blessing, why would he oppose the erection of more walls?

While on the surface his State of the County address is the run-of-the-mill self-congratulation that we expect from a politician, in fact his words have real consequences. Following his capitulation to former Secretary Chertoff, Judge Salinas went from being an opponent of the wall to the Department of Homeland Security’s poster boy. In press releases and Congressional testimony they use him to show that they are working with local stakeholders, rather than ignoring local concerns, condemning private and municipal property, and irreparably damaging border communities, economies, and ecosystems. Judge Salinas’ words provide DHS with cover as they continue to strong arm our next-door neighbors in Cameron County, as well as our friends in California.

Of course it is naïve to expect a politician to own up to his mistakes, to admit to being suckered into a bad deal that has cost his constituents millions of dollars. It is unrealistic to expect a mea culpa from Judge Salinas. But if he truly cares about the residents of Hidalgo County, the people who elected him and who he claims to serve, JD Salinas needs to stop trying to rebrand his greatest failure as a shining success. The wall is not a “solution” for any of the problems that we face. The border wall is a symbol of hatred, a blight on our communities, and a scar upon the landscape.

The Border Patrol Halts Communion at Friendship Park as Border Wall Construction Looms

By John Fanestil

On Saturday I was almost arrested for committing assault with a tortilla. Or was it my communion cup that Customs and Border Protection agents perceived to be a threat?

The setting was Friendship Park, a historic venue on the U.S.-Mexico border, overlooking the Pacific Ocean. For generations people from the two nations have met at this location to visit with friends and family through the border fence.

As part of its commitment to build 670 miles of double and triple barriers along the U.S.-Mexico border, the Department of Homeland Security is building a second wall across Friendship Park. On December 23, 2008, Customs and Border Protection declared the site a construction zone. On January 6, 2009 CBP released final design plans for the park and announced that these plans would eliminate permanently all public access to this unique site.

We, who are aficionados of the park, were stunned by the announcement. We knew DHS had decided to build a wall across the park, and we knew Customs and Border Protection agents had concerns about drug-smuggling and illegal border-crossings at the location. Still, we had assumed that the totality of law enforcement strategy for Friendship Park would not be predicated on the illegal conduct of a few. After all, drugs and criminal activity are problems in thousands of parks across the United States, and law enforcement agencies don’t respond by simply shutting them down.

We had assumed that some accommodation would be made for the vast majority of visitors to the park, who respect and honor the park’s intended purpose. Locals don’t call it “Friendship Park” for nothing, after all. Surely, we thought, there must be some room for friendship in the complex formula of U.S. border policy.

As the news of our government’s plans to close the park sunk in, we began to wonder when CBP would begin to enforce the ban on public access. The answer, it turns out, was this past Saturday, February 21. And I guess I have the ignominious distinction of being the first U.S. citizen to be forcibly prevented from approaching the border fence at Friendship Park.

For the past eight months I have gone to Friendship Park each Sunday afternoon and served communion to people on both sides of the border fence. I have done so out of solidarity with the many people who meet their loved ones there – and as a protest against DHS plans to decimate the park. People have been breaking bread at this location for a long, long time. It seemed to me only fitting that Friendship Park should host the sacrament of communion, too.

This past week, we moved our communion celebration to Saturday. The reason for this was something that any pastor can understand: we wanted to make the choir happy. A fabulous choir, composed of singers from both countries, wanted to perform at Friendship Park. Most of the singers have standing obligations on Sunday, so they asked for the event to be held on Saturday. We were quick to oblige.

As we approached the border on Saturday, we were met by a wall of CBP officers, who told us we could go no further than about 45 feet from the border fence. The choir set up shop and sang the Faure Requiem, the music blasting from a sound system set up by our friends in Tijuana. The choir performed admirably, despite having to compete with whistles, shouts and bullhorn blasts from a small group of anti-immigrant protestors who tried to hi-jack the gathering. Their inimitable combination of ignorance, hatred and incivility was no match for the choir, which included a stunning soprano solo – the Pie Jesu, “at the feet of Jesus” – sung from a distance in Tijuana.

After the requiem and a few prayers, I shared a brief message with the congregation. I recalled the gospel story in which Jesus goes to a mountaintop with his closest disciples. After Jesus is transfigured in dazzling light, Peter proposes that they erect tents atop the mountain and simply stay put. I drew the analogy to the love that so many of us feel for the United States, the land our forebears called “a shining city on a hill.” But can a city on a hill still truly shine if it has walls built around it? This is the great temptation of patriotism – the love of country is so quickly turned into hostility toward “the other.” The desire to protect our own wealth and privilege from the intrusion of foreigners is akin to Peter’s desire to stay up on the mountaintop with Jesus. As the Bible story makes clear, God has other things in mind for Jesus and those who find in him a kindred spirit. Jesus came down off the mountaintop and set out on his journey to Jerusalem, resisting at every step along the way all human efforts to build walls between God and God’s people.

Having concluded my brief sermon, I then offered communion to the 150 or so who had gathered in the United States. I then turned to the south, intending to serve the many people who were assembled in Tijuana for this same purpose.

My way was blocked by a Border Patrol agent, who was determined to make an impression. “You don’t want to do this,” he shouted at me, unsnapping several compartments on his uniform – to handcuffs, I presume, or perhaps mace.

I told him that all I wanted to do was serve communion, and another agent nearby shouted, “Go to Tijuana if you want to serve communion. You’re supposed to be a man of God. Then obey the law!”

I decided that this was not the time to conduct a teach-in on the historic Christian practice of civil disobedience, and instead tried to step forward. “I just want to serve communion,” I said.

The lead agent stepped in front of me, holding out his hand. “If you bump into me,” he shouted, “you’ll be charged with assaulting an officer.”

I’ve since learned from a lawyer that my actions did not come anywhere near the threshold for constituting assault, but in the moment I didn’t know that this was the case.

“So if I try to walk past you, and I bump into you, I’ll be charged with assault?” I asked.

“That’s right,” he said.

“OK,” I replied, “then I guess you’ll have to arrest me, because I’m going to serve communion.”

“OK, I will,” he said. “Turn around and put your hands behind your back.”

I did as I was told – this may have been a tactical mistake on my part – and the lead agent then instructed a colleague to remove me from the premises. “Take him out of the park,” he said, “but don’t arrest him.”

In retrospect I should have asked if I was being detained, but it seemed an almost silly question. After all I was being dragged away by a man in uniform, wearing a gun.

As we climbed the hillside that overlooks the beach at Friendship Park, the agent and I began to exchange pleasantries. “If it weren’t for all this mess, it really would be a beautiful day, wouldn’t it?” I said.

“Yeah,” he replied. “What did you have to go and do all that for?”

“I didn’t mean any disrespect to you or your colleagues,” I explained. “Our problem isn’t with you guys, we know you are just following orders. Our problem is with the policy, with the decision by your higher-ups to shut down the park.”

“The ones who ruin it,” the agent replied, “are the bad guys who pass all kinds of crap through the fence.”

“I understand that,” I said, “but this is exactly the problem with all our border policies. We’ve got to figure out a better way to distinguish between the bad guys and the good guys.”

The agent shrugged.

We sat atop the mesa, the agent and I, looking down on the beach. Later I learned that another of my friends, Dan Watman, was also removed from the beach by Border Patrol. After that the CBP agents put up a solid wall in front of our group and threatened them with assault charges if they stepped forward. The leaders of our group decided to stand down.

I am pleased with the way we all held up under such difficult circumstances on Saturday – but two days later I am left with a bad taste in my mouth. I find it unpalatable that I was not permitted to serve communion. There is a young homeless man, Adrian, who lives on the beach right there in Tijuana. He is there every Sunday and I saw him this last Saturday, too. Was he less worthy of communion that day than I was? What about Oscar, who was deported eight months ago and is separated from his wife and children, still living in the United States? He was there, too, just looking for a little human contact. Had I been allowed to offer him a piece of tortilla and a swig of juice, would that have compromised our national security, or our nation’s nobler principles?

Questions like these point to a larger one: What is to become of our nation’s southern border? Is this strip of land – over 1,850 miles long – to be turned over to the Department of Homeland Security and converted into nothing more than a “zone of enforcement,” straddled by walls?

I cannot abide it. I cannot abide it because I know the border can be an altogether different place than this. Like millions of others whose lives and relationships straddle the international boundary, I know the border can be a place where human beings meet, a place of friendship, a place of communion.

And that’s why I’ll be going back to Friendship Park next Sunday afternoon, to try once more to serve communion.

You are welcome to join me. The particulars are below my signature.

Adelante.

John Fanestil

DATE: Sunday, March 1, 2009

TIME: 2:30 meetup at entrance to Border Field State Park

PROGRAM: 30 minute hike to Friendship Park, communion

DIRECTIONS: Take Hwy 5 South, exit Dairy Mart Road, turn right (west) and follow the winding road to the entrance to the park.

INSTRUCTIONS: Bring documents verifying U.S. residence. Wear hiking boots.

In case you missed it, you can see the coverage in the Union-Tribune at this link. You can also keep up to date by joining the Friends of Friendship Park on Facebook. For Scott Bennett’s photos from the San Diego side, click here. For Alondra Almendra’s photos taken in Tijuana, click here.