Assault on Public Lands and Environmental Laws up for a House Vote

By Scott Nicol

How does waiving the Endangered Species Act in Hawaii help secure the U.S. – Mexico border?

Simple. It doesn’t.

But that obvious fact is irrelevant to Representative Rob Bishop of Utah, author of the National Security and Federal Lands Protection Act (HR 1505). Bishop claims that the Department of Homeland Security (DHS) cannot enforce immigration laws without violating the rest of our nation’s laws, so his bill waives 36 federal laws within 100 miles of the U.S. – Mexico border, the U.S. – Canada border, and all U.S. coastlines, for anything that DHS may want to do.

Most of the laws that HR 1505 tosses aside, including the Endangered Species Act, Migratory Bird Treaty Act, and Safe Drinking Water Act, protect the environment, but it also waives laws like the Farmland Policy Protection Act and the American Indian Religious Freedom Act.

This bill is an expansion of the Real ID Act, which gave the Secretary of Homeland Security the authority to waive local, state, and federal laws to build walls along the southern border.

The existing Real ID Act waivers, which HR 1505 expands, have caused tremendous environmental damage. To build border walls 530,000 cubic yards of rock was blasted from mountainsides in the Otay Mountain Wilderness Area; walls have caused serious flooding in the Organ Pipe Cactus National Monument; and walls fragment the Lower Rio Grande Valley National Wildlife Refuge, which was established for the preservation of endangered ocelots. Without the waiver, these walls would be illegal.

Bishop’s bill would also give DHS the run of all federally owned lands, in all 50 states, with absolutely no restrictions. Has a lack of access to the Everglades, or Hawaii’s Volcanoes National Park, or the lawn around the Statue of Liberty, prevented DHS from securing the southern border?

Not according to the Border Patrol.

The irony is that the Border Patrol, which operates under DHS’ umbrella, has not asked for the power to overrule land managers or ignore environmental laws. Last spring the Government Accountability Office found that, “Most agents reported that land management laws have had no effect on Border Patrol’s overall measure of border security.”

When Rep. Bishop introduced a similar bill last year Brandon Judd of the National Border Patrol Council said, “I would definitely look and see if there are some restrictions that are too restrictive. But to get rid of all restrictions, you would destroy the land.”

Representative Bishop has a long history of attacking protected lands and environmental regulations. He is currently pushing for a repeal of the Antiquities Act and a ban on new National Monuments. HR 1505 is just more of the same.

This Wednesday the National Security and Federal Lands Protection Act will be up for a vote in the House Natural Resources Committee, which Rep. Bishop, in a bit of Orwellian irony, chairs. Packed with Tea Party darlings like Bishop, the bill is almost certain to pass and be sent on to the full House of Representatives.

This is the week to contact your representatives and tell them that HR 1505 is not about protecting our nation. It is an assault on federal lands and environmental laws using border security as a convenient cover, nothing more.


For more information, visit www.sierraclub.org/borderlands.

Supreme Court Fails to Restore the Rule of Law to the Border

The Supreme Court’s refusal to hear arguments that the waiving of all state, local, and federal laws to build the border wall is unconstitutional is a tremendous blow for border residents and the principle of the rule of law. We had hoped that the court would honor its obligation to examine the constitutionality of section 102 of the Real ID Act, which is an unprecedented power grab by the Executive branch, and which creates unequal legal protections for U.S. citizens that are solely dependant upon what part of the country one lives in. In this instance the Supreme Court shirked its duty, leaving the border without the benefit of the rule of law that is enjoyed by the rest of our nation.

Section 102 of the Real ID Act allows for the suspension of all laws to build the border wall, stating, “Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section.” No other United States citizen is granted this extreme power under any circumstance. Even the president does not have this power to waive our nation’s laws, no matter what crisis may arise.

When former Homeland Security Secretary Chertoff waived 36 federal laws in April 2008, he knew that in building border walls he would be violating those laws. Obeying the law is not voluntary, it is mandatory. In a nation of laws all laws must be respected, not just those that are convenient. Those laws were enacted to prevent the kind of damage that we see everywhere border walls have been built.

For plaintiffs such as the Frontera Audubon Society, the Friends of the Wildlife Corridor, and the Friends of Laguna Atascosa National Wildlife Refuge, the fate of the Lower Rio Grande Valley National Wildlife Refuge is of particular concern. Consisting of individual tracts of native habitat linked by the Rio Grande, it creates a wildlife corridor, providing federally endangered species such as the ocelot and jaguarundi sufficient territory to find food, water, and mates. Migratory birds also rely on it to rest and refuel on their annual journeys, as well as for nesting. The border walls that have been built, and those that are still under construction, slice through many refuge tracts and cut off others from the river. The wall is fragmenting habitat, blocking migratory pathways, denying animals access to fresh water, and isolating breeding populations of endangered ocelot and jagurandi. Because the Endangered Species Act, the Migratory Bird Treaty Act, the National Wildlife Refuge System Administration Act, and the National Environmental Policy Act were among the 36 federal laws that the former Secretary swept aside, none of the usual legal protections for these supposedly protected lands remain.

In addition, Texas border communities depend upon the Rio Grande for irrigation and drinking water. But former Homeland Security 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 prompted the El Paso County Water Improvement District No. 1 and the Hudspeth County Conservation and Reclamation District No. 1 to take part in the challenge to the constitutionality of the Real ID Act’s waiver authority.

Equal protection under the law is meant to be a fundamental right shared by every American, but the Real ID Act makes the legal rights of citizens who live near the border conditional on the whims of an unelected Administration appointee. The Secretary of Homeland Security cannot waive the laws that protect citizens who live away from the border. Only border residents may have their legal protections waived.

When the Supreme Court decided not to hear these arguments without uttering so much as a word as to why, they shirked their duty as the final arbiters of the United States constitution and the principle of the rule of law that it enshrines. This precedent bodes ill for the rest of the nation, as any manufactured crisis may be used to enact a similar waiver. A “broken” northern border may be the pretext for a new bill waiving laws along the Canadian boundary, or an “energy crisis” may provide a convenient excuse to do away with laws that prevent drilling in the Arctic National Wildlife Refuge. The Supreme Court’s inaction will likely have repercussions beyond the destruction wrought by the border wall.

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.

Texas Border Coalition Members Ask U.S. Supreme Court to Hear Border Wall Waiver Case

The Texas Border Coalition has written an amicus brief in support of a constitutional challenge to section 102 of the Real ID Act, which gives the Secretary of Homeland Security the unprecedened power to brush aside any law that might slow down construcion of the border wall. Section 102 said, “Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section.” The Texas Border Coalition issued the following press release regarding their support of the constitutional challenge:

EAGLE PASS, Texas (Jan. 14, 2009) – Members of the Texas Border Coalition (TBC) are asking the U.S. Supreme Court to hear an appeal by El Paso County, the city of El Paso and others challenging the constitutionality of Homeland Security Secretary Michael Chertoff’s waivers of 37 federal laws and all state, local and tribal laws. Chertoff exercised these waivers in connection with the U.S.-Mexico border wall.

In an amicus curiae brief filed today, TBC members ask the Court to address for the first time whether the waiver authority granted to Chertoff by Congress is permissible under the U.S. Constitution.

The brief noted that no appellate court has ever upheld such a broad a delegation of legislative power to the executive branch without judicial review, arguing that the waivers “bulldoze wide swaths of unidentified state and local laws” in a fashion contrary to what the framers of the Constitution intended.

Eagle Pass Mayor and TBC Chairman Foster said, “I hope the justices will seize this opportunity to restore the balance of sovereignty among federal, state and local governments that our nation’s founders guaranteed to the people and eloquently expressed in the Constitution and in the writings of James Madison.”

On April 3, 2008, Chertoff issued two waivers covering almost 500 miles of territory along the Mexican border from California to Texas in an effort to expedite construction of the 670-mile wall along the U.S.-Mexico border.Invoking his authority under Section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), the Secretary waived 37 federal laws and all related regulations, including environmental laws, historic preservation acts, the Rivers and Harbors Act, the Federal Land Policy and Management Act, the Federal Grant and Cooperation Act, acts protecting the exercise of religious freedom, and the entire Administrative Procedures Act.

Perhaps most troubling is that Chertoff has purported to waive all state and local laws relating to the subject matter of these federal laws, but has not specified which state and local laws have been waived, for how long, or against whom.

TBC members argue that such unrestricted power granted to Chertoff raises profound, unanswered questions about sovereignty – including the local police powers – of the state of Texas and other cities and counties along the U.S.-Mexico border. They assert that the secretary has encroached on the most fundamental aspect of state and local sovereignty, and that is the power to govern by their own duly enacted laws.

“Should the Supreme Court allow these waivers to stand without so much as an argument in defense of liberty, the justices will effectively confer upon an unelected agency chief limitless and unbridled power never dreamed possible by the authors of the Constitution,” Foster said.

The justices are expected to decide this spring or summer whether to hear the case.

For a copy of the brief, please click here.

The Texas Border Coalition (TBC) is a collective voice of border mayors, county judges, economic development commissions focused on issues that affect more than 6 million people along the Texas-Mexico border region and economically disadvantaged counties from El Paso to Brownsville. TBC is working closely with the state and federal government to educate, advocate, and secure funding for transportation, immigration and ports of entry, workforce and education and health care. For more information, visit the TBC Web site at www.texasbordercoaltion.org.

Civil Disobedience and the Border Wall

After successfully blocking construction of the US-Mexico border wall for 7 hours on December 17, Judy Ackerman was handcuffed and led away from the construction site. She had been on the site since 6:30 that morning, cheered on by a group of enthusiastic supporters while idle workers leaned against their silent equipment.

Ackerman’s civil disobedience sprang from a desire to defend the Rio Bosque Wetlands Park, a protected natural area on the Rio Grande in El Paso, Texas. Rio Bosque is situated along a stretch of the old, winding river channel in which the Rio Grande flowed before it was straightened and channelized in the 1930s. The park’s wetlands were created in 1997, and, through years of volunteer work, the native wetland habitat was painstakingly restored. Ten years later, it’s one of the few places where one can imagine what the El Paso area must have been like when the river wound freely through the mountains and desert and had ample flow to support rich wetlands and big cottonwood trees. Judy Ackerman is one of the many volunteers who made this vision possible.

But the border wall threatens this rebirth of nature. Its path will cut off Rio Bosque from the river, preventing the movement of species and severely limiting the park's value as habitat. For Ackerman and the other longtime Rio Bosque volunteers who know that the river and the wetlands are intimately and inextricably connected, the border wall is a knife through the heart.


For the simple, nonviolent action of standing her ground on the border wall construction site, Ackerman has been charged with violating the law, but the border wall itself has been placed above all of our nation’s laws. The Real ID Act gives the Secretary of Homeland Security the power to waive any federal, state, or local law that might slow down construction of the wall. No one else, not even the president, has this sweeping power. On April 1, 2008, DHS Secretary Michael Chertoff “waived in their entirety” 36 federal laws all along the southern border, including the Clean Water Act, the Endangered Species Act, and the National Environmental Policy Act. There is only one reason to waive these laws: Chertoff knows that the border wall cannot be built without violating them. His waiver is an implicit admission that constructing the border wall means breaking the law.

After her arrest, law enforcement officers brought Ackerman before a judge to be arraigned. But under the Real ID Act, neither she nor anyone else may use the courts to challenge the border wall, regardless of the damage it causes or the danger it represents. Chertoff’s waiver swept aside our legal right to demand in court that the government obey its own laws. The only jurisdiction the courts have is to determine whether or not the Real ID Act waiver provision is constitutional. El Paso County and nine other plaintiffs have claimed that it is not and are asking the Supreme Court to hear their case. In the meantime, the border wall continues to be built, devastating our border communities and natural areas, flouting our nation’s laws, and undermining our constitutionally-guaranteed right to equal protection under the law.

Some would go so far as to say that these are among the freedoms we should willingly give up in exchange for security. But this trade-off is a false one based on the twin myths that our borders are broken and that border walls will protect us.

Our borders are not broken. Well before the new walls started going up there, the El Paso Border Patrol Sector was reporting a decrease in the apprehensions of illegal crossers. From 2005 to 2007, apprehensions in the El Paso sector fell by 38 percent. Even more telling, this year El Paso has been named the nation's third-safest city among cities with populations of 500,000 or more, and it has consistently ranked in the top 3 safest large cities for a decade.

Border walls do not make the United States safer, nor do they stop undocumented immigration or smuggling. A 2007 report by the Congressional Research Service found that existing walls in San Diego “did not have a discernible impact on the influx of unauthorized aliens coming across the border.” In fact, during the same period that El Paso experienced a 38 percent drop in illegal crossings, San Diego had a 20 percent increase in crossings despite the presence of a triple-layered border wall there.


Those who say we must give up our freedom for security are in reality asking us to sacrifice one of the founding principles of our republic, the rule of law, for nothing but a false sense of security.

Judy Ackerman trespassed, disrupted border wall construction, and stood her ground. For this she was duly arrested and charged with a crime. But on the same ground where Ackerman made her stand, The Department of Homeland Security is willfully and destructively ignoring the law. One man has decided which laws apply and which do not and has single-handedly dismissed our right to sue for protection under the law. Ackerman’s trespassing charge is a misdemeanor. But the border wall construction that restarted soon after her arrest is a much more serious crime, and Chertoff’s waiver of laws is a flagrant violation of the principles upon which our nation was founded.

Testimony on the Environmental Impacts of the Border Wall Given to the Texas State Legislature

On November 13 the Mexican American Legislative Caucus of the Texas State House of Representatives held hearings on the impacts of the border wall. Organized by Representative Eddie Lucio III, it brought speakers from all along Texas' southern border, including landowners, citrus growers, politicians, environmentalists, and residents. “The Texas border with Mexico thrives due to its close relationship with its neighbor to the South; it is imperative that we understand how a border wall would affect Texas’ relationship with Mexico,” Lucio said.

A number of members of the No Border Wall Coalition spoke at the hearing, addressing the impacts of the wall on agriculture, border communities, and the waiving of laws under the Real ID Act. Martin Hagne, Executive Director of the Valley Nature Center and a founding member of the Coalition, described to the legislators the effects that the walls currently under construction are likely to have on the environment.

Here is his testimony:

Thank you for allowing us the opportunity to testify and to give you further information about the border wall in Texas as designed by the U.S. Department of Homeland Security. My name is Martin Hagne, and I am the Executive Director of the Valley Nature Center in Weslaco, Texas. Today I am representing the No Border Wall Coalition, which was formed in the Lower Rio Grande Valley in May of 2007. And although the No Border Wall Coalition is greatly concerned with all aspects of the border wall, including human rights, immigration, property rights, and economic issues, today my testimony will focus on the impact of the wall to wildlife and the environment.

The border wall is to date the single most detrimental environmental disaster to take place along the Texas Mexico Border in our lifetime. The environmental effects will be far-reaching, long-lasting, and permanent in many areas. There is simply no way to construct such a barrier in such a place without doing irreparable harm to wildlife and the very sensitive habitats along the Rio Grande.

Today I will focus mostly on the Lower Rio Grande, but all areas in Texas slated for the border wall face similarly destructive challenges. Obviously the habitats along such a long border will vary greatly, but the damage will be equally destructive.

Habitat Loss

The easiest issues to describe will be the obvious habitat loss that will occur when the concrete and steel structure is built. As mandated in the Secure Fence Act of 2006, the wall is not just a single wall but two structures spaced apart to facilitate high speed roads between and outside the walls. This in itself will clear a wide swath of habitat up to 350 feet. Granted that DHS seems to be pursuing a single layer wall at this time, but the Act still stipulates the double layered version and still shows such on the "books." We must, therefore, be aware of this and act accordingly.

The thin layer of riparian forest that still exists along the Rio Grande, is often only 100 feet wide or less. Agricultural land has crept up all the way to the rivers edge in many places. The riparian forest made up of tall woody species such as Anacua, Texas Ebony, Rio Grande Hackberry, and Mexican Ash has been slipping away due to clearing for human use, and much of what little is left has been altered due to the river being dammed in 1957 by Falcon Dam. The dams and reservoirs that make the Valley flood-free and inhabitable for humans have also stopped the seasonal flooding which keeps the riparian forests alive. Each year floods would inundate the lowlands of the Rio Grande and keep such ecosystems thriving. Flood control is altering these precious forests into drier thorn forests.

For over 30 years efforts have been made to reclaim some of the lost habitat along the river and to create a Wildlife Corridor. US Fish & Wildlife, along with many other groups, such as Texas Parks & Wildlife, The Nature Conservancy, and Audubon Society, to name a few, have been working hard to purchase old farmland and to re-vegetate them back into a natural state of riparian forest. So far over $70 million has been spent of mostly federal funds to purchase land, and about $30 million has been used to plant native plants on these tracts. Tens of thousands of school children have taken part in these planting efforts! Now we are faced with all that work and taxpayer's money being bulldozed.

It has been argued by proponents of the wall that such small areas needing to be cleared are insignificant and that birds can fly over any structure that is put in their path. While it is true that birds can find water by flying a distance, mammals and reptiles will not be able to travel over such a structure. It has also been said that birds can leave an area and adapt to another habitat.

But there are bird species that rely on certain habitats that can't adapt fast enough if their present homes are removed. These are species that live and nest in this riparian habitat that is almost gone and that has little left of its original make-up. These same species are not found north of the Rio Grande Valley, and many are just found along the actual Rio Grande itself. These birds are limited to the riparian remnants along the river.

In these tall, Spanish moss-draped forests we find such bird species as Gray Hawk, Tropical Parula, Clay-colored Robin, Northern Beardless-Tyrannulet, Brown Jay, Muscovy Duck, Common Black-Hawk, and Red-billed Pigeon. These birds rely on the riparian forest along the river, and many rarely stray inland. These birds do rarely if ever utilize other habitats and could therefore be extirpated from Texas and the United States.

It has been estimated, using the maps released for this EIS, that over 80% of USF&W refuge property will be affected along the Rio Grande in the Lower Rio Grande Valley.

This does not include the several Texas Parks & Wildlife's Wildlife Management Areas and privately owned sanctuaries by such groups as the National Audubon and The Nature Conservancy located along the river that will be affected. The Lower Rio Grande Valley National Refuge alone in the Lower Rio Grande Valley takes into account eleven (11) different biotic communities. This is arguably the most bio-diverse region in the U.S.

Habitat Fragmentation

Equally destructive to wildlife is habitat fragmentation. A few decades ago this was rarely thought of as a problem. Roads were built crisscrossing our nation's wildlife refuges and wildlands. But now biologists know the very real threat of fragmenting any habitat. The edges created invite new species of plants and animals, changing the make-up of the ecosystem, often driving out the original inhabitants.

Not only does fragmentation affect the habitat in question, but it also has far-reaching effects on entire ecosystems. By changing the makeup of one area, it also affects other neighboring habitats and in the long run changes the entire regional ecosystem. This has not been taken into account in any DHS document or "study" released so far.

The other effect the wall will have is separating animals from each other on both sides of the wall. Ground dwelling mammals, reptiles, amphibians, and other wildlife will not be able to cross 16 to 18 foot tall concrete and steel structure. This will leave them not able to reach water, nor roosting and nesting sites.

Species can become genetically flawed by being cut off from neighboring populations, eventually creating a bottle-neck effect in the gene pool. It has been said that the wall can't cut off species from reaching each other because it is an east and west directed wall. This is not true, as DHS maps shows it clearly meanders south and north and doubles back in many places. Most animal species when faced with such an obstacle cannot and will not find ways around it, leaving them confused and stuck in place. This has already been documented in Arizona, where the wall was built through wildlife refuges.

The Wildlife Corridor was designed for just such travel and will now be severely hampered and made ineffective.

Endangered Species

There are 20 species of federally endangered species in this area, as well as many more threatened and endangered species listed by the state of Texas. The border wall will affect many of these species in negative ways through habitat loss, habitat fragmentation, corridor loss, water being cut off, and loss of eco-tourism dollars that positively help habitat restoration efforts.

Two federally endangered wildcat species are barely hanging on in existence within their U.S. range in the Lower Rio Grande Valley: the Ocelot and the Jaguarundi. The corridor is a must for these species to be able to travel to new territories for mates. As the efforts to restore the populations of these cats succeed, new territories need to be found by males to further the populations. Crossing the Rio Grande into Mexico will be a must for these cats. The border wall will cut off their access to such crossings. These cats will not, and cannot, travel long distances to find "openings" in a wall. Their habitats are now too fragmented to allow for this. Without new genetic populations to breed to, the U.S. population will become in-bred, narrowing its lines, until it can no longer get out of a bottleneck in its genetics. USF&W and other organizations such as Environmental Defense have been working with private landowners and ranchers in deep South Texas to create more habitats for these cats, especially the Ocelot. Land corridors for travel north and south are also being pursued, as this is critical for the cats to reach Mexico. The wall in Cameron County will basically stop this project.

The USFW plan for recovery for the Jaguar was already shelved because of the negative impacts the wall will have in Arizona. If the Jaguar cannot freely travel north and south, it has no chance of recovery in the U.S., leaving the program totally ineffective.

The Wildlife Corridor in the Lower Rio Grande Valley is also a must for other species in peril of extirpation. Long-tailed Weasels, the Mexican sub-species of American Beaver, and others, live in the riparian areas along the Rio Grande. These species, as well as the hundreds of others, must be taken into account.

Wetland Loss and Water Quality Issues
Critical wetlands along the wall will be affected, many of which are ephemeral (drying out during dry seasons). Due to flood control measures, the area in question has lost much of the seasonal wetlands that used to exist. Any and all wetlands removed or negatively affected therefore have an even higher negative impact to area wildlife.

The fact that many of these wetlands are seasonal makes it even harder to identify them, therefore making it easy for DHS to say none existed.

With the removal of any wetlands comes degraded water quality. Wetlands act as natural water cleansers as the water filters though wetland aquatic vegetation. Farm chemicals and other harmful runoff from city lawns and streets have no natural filtration system before reaching the Rio Grande.

Flooding is also negated by natural wetlands. Ponds and marshes slow the rain waters and collect large amounts of flood water.

Flood Levee System and Wall Combo

Last year FEMA announced that the flood levees which are built, maintained and operated by the federal agency IBWC, were not high enough to protect the area from a major hurricane. The area would no longer be certified and, therefore, insurance would go up or be unattainable. Industry would pull out and many other issues would arise. Although this should be a federal issue and fixed by federal dollars and agencies, it has now become a County project. Hidalgo County was "frightened" into signing a deal with DHS to receive some federal funds and then use County bond funds to repair the levees. But under one condition: that the face of the levee be an 18 foot sheer concrete wall that would also act as a border wall.

This scenario has many flaws. First, the County should not have to pay for such repairs. Second, the 22 miles of sections repaired are only in the areas where DHS wanted a wall in the first place, leaving unrepaired gaps in the flood control system. This does nothing for making the system FEMA approved again. Thirdly, cutting into the side of the existing levees during hurricane season is nothing short of asking for a disaster. Fourthly, fixing the levees on the U.S. side at this time will endanger hundreds of thousands of lives on the Mexican side of the border if levees are not simultaneously repaired in Mexico.

And lastly, this levee/wall combo has been touted as a win-win for the environment. Although the levee/wall combo might affect certain areas less as far as habitat removal, it will only slightly improve on that situation. But what it will do is become a solid 18 foot wall of concrete which is totally impenetrable to wildlife. There will be effectively no movement over, under or around this wall. No animal, besides a bird, could get over such a structure. It is less wildlife friendly than the originally designed wall.

Environmental Law and Justice

The Real Id Act of 2005 was passed to give the Minster of Homeland Security broad sweeping powers to secure the nation. It, unprecedented, gave Michael Chertoff powers to waive any and all U.S. laws to build the wall. This was not a well known law by lawmakers and many voted on this passage without knowing enough about it.

This year alone DHS has waived 36 federal and state laws ranging from the Clean Water Act to the Endangered Species Act. Such powers have only if ever been enacted during acts of war towards the United States.

Environmental organizations as well as individuals have tried to sue DHS to stop the wall, to retain their property and not allow the government to take it, but all legal action is made void due to the Real ID Act. The people of the United States have no legal recourse.

The Texas Park & Wildlife Department has already lost land on their Las Palomas Wildlife Management Tracts. A levee/wall combination is dissecting properties owned by TPW and USFW in an area that was before only dissected by a dirt levee which was traversable by wildlife.

The same Act also has rendered the National Environmental Policy Act (NEPA) void and, therefore, no Environmental Impact Studies (EIS) were needed to be performed. DHS started the NEPA process and eventually did release an EIS document. This 600 some page document was nothing more than a glorious work of copied material taken out of a dictionary. The studies for such an elaborate project should have taken over two years, but instead the document was published in months! Environmental studies on wildlife migration, daily usage, breeding and nesting sites, plant surveys, use during inclement weather, and many other such long-term studies could not be produced in months. The document was the worst example of government bullying.

The Real ID Act must be repealed!

The "fact" being put forth by DHS and BP representatives that a border wall is less environmentally intrusive than the "trash and human waste" left by immigrants is truly such a far-fetched illusion that we cannot believe it has even been brought up! A habitat left with trash and waste is far better than a habitat void of plants. Plants make the habitat. An area with native plants gives life whether it is degraded with trash or not. Trash can be removed, while permanent environmental damage by clear-cutting cannot! These are such simple facts that it is unbelievable that any government agency would state otherwise!

An animal living in the Rio Grande Valley within a riparian area is not one that is much impacted by trash and human waste. Such a statement shows ignorance and lack of understanding of the area's fauna and flora, this fact further showing the true need for a broader and much more thorough EIS. We are not talking about whales swallowing plastic bags. Ocelots do not eat trash! On the other hand, if you remove any habitat from the area which is already in such short supply, you are likely to lose species.

To compare the need for a border wall for national security to the needs of conserving a lizard, as DHS spokespersons have done, we can only say that if DHS believes this wall will only impact one lizard, a complete and broader EIS would show just how wrong such a statement is.

Environmental Economic Issues

Many areas along the Texas-Mexico border have prime natural areas. The Big Bend area in West Texas has tens of thousands of wild areas, river canoe excursions and hiking opportunities.

The Lower Rio Grande Valley is the top bird watching and nature watching destination in the U.S. The Valley is considered the most biologically diverse area within the U.S. 517 bird species have been recorded in this small area. That is more than all other state totals besides Texas, California, Arizona and New Mexico. Native plant species number at least 1,100, but if all forbs and grasses were counted, these numbers could easily be closer to 3,000. Over 340 species of butterflies are found here, as well as over 120 species of odonates. There are 80 some species of mammals, and a higher number of reptiles and amphibians. These numbers are staggering for such a small area.

The wall is not only a disaster to our environment, but also a disaster to the local economy, which embraces eco-tourism as an annual income of $125 million, contributed by some 200,000 nature visitors annually. An ecological impact of the wall is the fact that the bird species that depend on this habitat will disappear! That in itself is truly disturbing. The implication the wall has for humans is not only the loss of nature, but the loss of livelihoods. No bird watcher would want to come see a steel and concrete wall where before a native habitat stood.

Other nations have already figured that out! Below is a note from a bird watcher from Sweden who visited the Valley and Santa Ana NWR last year.

"Thanks very much for sending me information about the horrible plans for the Rio Grande; I am reading it with great interest. I just want to say that it is not only an interior matter but also an international one. It would hit the birding business coming from other countries. I mean, if the nice areas around the Rio Grande would disappear, not many birders from others countries will go to Texas in the future, as well as people from other places in the USA. Hopefully there will be a better solution than destroying a unique fauna." Christer Landgren, Sweden

The State of Texas has invested millions of dollars into the three State Parks in the Lower Rio Garden Valley. The fairly new World Birding Center complex with nine (9) sites is also a partnership with the state. Many of these sites, along with the above mentioned USFW refuges, Audubon Sabal Palms Sanctuary, the TNC Southmost Preserve, the NABA Butterfly Park, and others, will be negatively affected.

The National Audubon Society is presently debating what to do with their flagship sanctuary, Sabal Palms. After the wall goes up it will be walled off, and concerns are many. How will staff have access? Who will have keys? What if a fire breaks loose? Will anyone insure us? Do we dare to allow visitors? etc. None of these questions can be answered by DHS when asked.

National organizations such as NAS and TNC are now faced with possibly giving up decade-old work and investments and pulling up stakes from the Valley, taking with them resources and funds.

With these funds also goes many environmental and science funded programs for local school classes. In a day where children need every opportunity to get outdoors to exercise and learn about nature, we will be forced to lose such precious resources.

Rapoport Center Alleges that the Border Wall Violates Human Rights

A multi-disciplinary working group of faculty and students affiliated with the Rapoport Center for Human Rights and Justice at The University of Texas at Austin alleges that human rights are being violated by the United States through construction of the border wall. The working group submitted a series of briefing papers to the Inter-American Commission on Human Rights, an inter-governmental body of the Organization of American States composed of seven independent experts. The Commission’s mandate is to examine and monitor compliance by member States of the OAS, including the United States, with human rights obligations established in international law. Below is the full text of their letter. Their report on the human rights violations associated with the border wall is available at: http://www.utexas.edu/law/academics/centers/humanrights/publications/

August 27, 2008

Santiago A. Canton
Executive Secretary
Inter-American Commission on Human Rights
1889 "F" Street, N.W.
Washington, DC 20006
VIA FACSIMILE: (202) 458-3992

RE: Request for General Hearing on the Texas/Mexico Border Wall

Dear Secretary Canton:

I am writing to respectfully request that you schedule, during the 133rd period of sessions of the Inter-American Commission on Human Rights (the "Commission"), a general hearing on the human rights violations implicated in the construction by the United States of a border wall on the Texas/Mexico border. I am making this request in the name of the University of Texas Working Group on Human Rights and the Border Wall, a multi-disciplinary collective of faculty and students at the University of Texas at Austin, which has collaborated with individuals and communities affected by the border wall and Environmental Sciences faculty at the University of Texas at Brownsville, to highlight the human rights violations committed by the United States through planned construction of the wall. A list of working group members is attached to this request. The working group submitted a series of briefing papers to the Inter-American Commission on Human Rights in June 2008. Those papers can also be found at:
http://www.utexas.edu/law/academics/centers/humanrights/publications/

The working group now requests that the Commission urgently consider the matter of the Texas/Mexico border wall in a general hearing. Violations of human rights are already occurring as preparations are made for construction of the wall, and further serious violations are imminent as construction moves forward.

The United States Congress mandated construction of 670 miles of wall along the border between the United States and Mexico in the Secure Fence Act of 2006 and the Consolidated Appropriations Act for FY 2008 and further mandated that 370 miles of that wall be constructed by December 31, 2008. The Department of Homeland Security plans to fulfill this mandate by constructing hundreds of miles of wall along the Texas/Mexico border before the end of 2008.

The United States' plans for the wall have generated significant opposition and clamor for further consultation and deliberation, coming from within the United States and internationally. Many small landowners living along the river, who would see their properties divided in two by the wall, have struggled to defend themselves against the United States government's condemnation proceedings. A number of municipalities along the Texas/Mexico border have joined a class action suit against the United States government asserting that the United States failed to properly consult with individuals and communities affected by the wall or to negotiate fairly regarding the taking of land. Mexico has adopted a formal position against the wall as an affront to the climate of cooperation and joint responsibility that it believes should exist with the United States and has received support for this position from other Latin American countries. In 2006, the Mexican government presented a declaration against the wall at the Organization of American States that received the support of 27 other countries. Mexico also obtained a resolution at the Summit of the Americas urging the United States to reconsider its decision to build a wall. Other State entities, such as the Senate of Chile, have condemned the wall as well. Yet, the United States has not modified its plans to move forward with the wall, making this situation urgent.

The violations of human rights resulting from the border wall plans, which will be presented at the general hearing if granted, include:

Articles II and XXIII of the American Declaration on the Rights and Duties of Man ("American Declaration") guaranteeing equality before the law without distinction as to race, sex, language, creed or any other factor and guaranteeing the right to private property.

To build the wall, the United States is taking property that has been held by families for generations, in some cases dating back to Spanish and Mexican land grants from the 1700s and 1800s. Yet, the State is taking this property in an arbitrary and unjustified manner without properly considering other alternatives for controlling the border. The United States government has not explained why it is necessary to take property to build a border wall to meet the goals of impeding immigration and protecting national security. U.S. officials agree that the border wall will stop intending immigrants only for a matter of minutes and cannot point to national security breaches on the southern border of the United States. Nor has the U. S. government explained the rationale behind the placement of an intermittent fence in particular areas and not in others. The United States therefore cannot assert that the border wall, which violates property rights, is proportional and necessary to the goals it is said to meet.

In addition, the United States is treating property owners on the border unequally. Numerous small landowners will lose property to the wall while more lucrative developed properties and resorts are not included in the wall's path. A statistical analysis conducted by Professor Jeff Wilson of the working group demonstrates that the property owners impacted by the wall are poorer, more often Latino and less educated than those not impacted who also live along the border.

The wall will also negatively impact Native American communities, including individual landowners who are Lipan Apache and the federally recognized Kickapoo and Ysleta del Sur tribes that live and practice their traditional cultures and religions along the Texas/Mexico border. The InterAmerican system has repeatedly recognized the unique and vitally important rights to property and equal protection guaranteed to members of indigenous communities. Yet, the United States has not adequately considered the impact of the wall on indigenous communities in its construction plans.

Article IV of the American Declaration guaranteeing the right to freedom of investigation, opinion, expression and dissemination.

The United States has not acted with transparency regarding its plans to build the border wall. The United States has failed to provide specific information regarding the exact locations for the wall or to explain the rationale for those locations. It has been extremely difficult for anybody outside the United States government to determine even how much and what type ofwall is planned in which regions. In April 2008, the working group at the University of Texas filed requests under the Freedom of Information Act for documents and maps that would show the planned locations for the border wall and for records that might explain why the United States had decided to place the wall in certain areas rather than others as well as any information reflecting consideration given to the impact ofthe wall on Native American communities. As of this date, the United States government has failed to provide a single document or record, although federal law requires U.S. agencies to release information in response to a request under the Freedom of Information Act in a period of 20 days. The lack of transparency violates the right to freedom of investigation and dissemination. The paucity of information also makes it much more difficult to define the exact contours of other violations of rights, such as the right to property, since it is not even possible to identify all victims and impacts of the wall.

The lack of information also negatively affects the right of impacted individuals to be consulted and to express an opinion about the border wall. The "consultations" carried out by the United States have been characterized by this lack of transparency regarding critical information as well as by a lack of possibility for discussion of the relevant issues. Attendees at the handful of public meetings organized by United States government officials have consistently reported that private citizens had no opportunity to enter into any sort of dialogue or question-and-answer discussion with government officials regarding the border wall. Rather, participants listened to prepared statements by officials, which lacked detail, and then were told to record their comments in writing or online.

The lack of transparency and dialogue violates Article IV and has also made it impossible for the United States to comply with its obligation under the American Convention to ensure that no less restrictive alternatives to the wall exist and its obligation under International Labor Organization Convention No. 169 to consult with affected indigenous communities.

Articles V and XIII of the American Declaration protecting the right to private and family life and to culture.

The construction of a wall will irreparably damage a centuries-old culture in which families live and work on both sides of the Rio Grande River, which now constitutes the border between Texas and Mexico. The wall necessarily makes a powerful statement of separation of a community that has traditionally treated the border as a meeting point rather than a dividing line. The communities along the border have also always treated the Rio Grande River dividing Mexico and Texas and its wildlife as an important part of their culture. According to experts, the wall will cause severe environmental degradation of these cultural treasures.

In addition, the wall impacts indigenous culture in violation of the norms guaranteeing special protections to the traditions of Native Americans. For example, the United States government's own analyses recognize that the wall will impinge upon traditional ceremonies conducted by the Ysleta del Sur tribe along the banks of the Rio Grande River.

Article XVIII of the American Declaration guaranteeing the right to
judicial protection.

The possibilities for a court challenge to the taking of property and construction of the border wall are extremely limited. For example, federal law gives the Secretary of the Department of Homeland Security ("DHS") the authority to invoke the importance of border wall construction to overlook a long list of federal statutes that would normally apply to protect indigenous rights and the environment. DHS Secretary Michael Chertoff has exercised this authority and has waived all applicable environmental laws and several laws guaranteeing indigenous rights, such as the Native American Graves Protection and Repatriation Act (NAGPRA). Thus far, the Supreme Court of the United States has declined requests to analyze the constitutionality of the broad grant of authority to the Secretary of DHS to issue these waivers. The United States has thus stripped away, in relation to the border wall, judicial protection that it otherwise provides.

Similarly, the Consolidated Appropriations Act for FY 2008 requires consultation with property owners, Indian tribes and local governments regarding the impact of the wall. However, the same provision clarifies that the consultation mandate creates no enforceable rights. Property owners and members of indigenous communities affected by the wall face a blatant lack of judicial protection against actions of the United States affecting their land and culture. In addition, through its waivers of environmental laws, the United States has failed in its obligation to consider environmental harm and to take measures to limit likely damage. See IIA Comm. H.R., Report N° 40104, Case 12.053, Maya Indigenous Community (Belize), Annual Report of the Inter-American Commission on Human Rights 2004, para. 147.

Finally, the U.S. government is violating the right of indigenous communities to enforce treaties and agreements, as supported by Article 37 of the United Nations Declaration of the Rights of Indigenous Peoples.

The Native American tribes of Texas affected by the border wall are parties to various treaties, which guarantee protection of their civil and human rights. Yet, these rights have not been respected. In addition, by agreement with the United States government, at least one indigenous tribe in Texas -the Kickapoo-has been guaranteed the right to cross freely back and forth from Texas to Mexico, a right which will almost certainly be derogated or limited by the construction of a border wall.

If this hearing is granted, a member of the working group at the University of Texas will testify regarding our findings on the human rights impacts of the Texas/Mexico border wall as well as the difficulties the group has faced in obtaining information from the United States. In addition, we will present a detailed analysis of the equal protection violations revealed in the statistical study of the properties to be affected by the wall. We also expect to present to the Commission the testimony of an affected property owner of indigenous Lipan Apache heritage whose land along the Texas/Mexico border has been held in the family for several hundred years. If possible, we will present testimony from additional impacted individuals. Finally, we hope to also provide information regarding human rights analyses conducted from within Mexico regarding the effects of the border wall. We respectfully request that the Commission invite the United States to be represented at the hearing.

Thank you for your kind attention to this request for a hearing on the Texas/Mexico
border wall during the 133rd period of sessions of the Commission. Please do not hesitate to contact me if I may provide you with any further information regarding this request for a hearing or any other matter.

WAIVED ON THE BORDER: THE ADMINISTRATIVE PROCEDURE ACT OF 1946

By Nat Stone

Wary of New Deal-era government expansion, and after costly brushes with fascism under Nazi Germany and Imperial Japan, in 1946 Congress passed the Administrative Procedure Act to protect United States citizens from abuses by federal agencies.

As President Roosevelt had observed during the decade-long process of negotiating the APA, to entrust federal agencies with legislative, executive, and judicial powers was also to risk corrupting these powers, and "to develop a fourth branch of government for which there is no sanction in the Constitution."

The Administrative Procedure Act authorizes and standardizes the procedures of 55 federal agencies responsible for implementing and enforcing federal laws. A manual for governance, APA requires transparency in agency rulemaking, opportunity for citizen participation, and protection of individual privacy.

Further buttressing the foundation of American civil rights, these among many provisions of the Administrative Procedure Act require that:

Agencies shall "give interested persons an opportunity to participate in the rule making…"

Agencies shall "maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized."

Agencies shall "establish appropriate administrative, technical, and physical safeguards to insure the security and confidentiality of records…"

Whenever any agency fails to comply…in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency…"

A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel…"

Under authority of Section 102 of the 2005 REAL ID Act, The Administrative Procedure Act is one of 36 federal laws now waived, without explanation, by the Department of Homeland Security for border wall construction.

Left unchecked, the unprecedented vagueness of Section 102 waiver authority, and the unjustified muting of the Administrative Procedure Act, may be repeated for other federal projects elsewhere in the nation.

For true collaboration between DHS and local agencies for appropriate border management, and to check Section 102 waiver authority, please support HR 2593, The Borderlands Conservation and Security Act.

The full text of HR 2593 can be found here:
http://www.govtrack.us/congress/billtext.xpd?bill=h110-2593.

Here is the complete list of laws that Department of Homeland Security Secretary Chertoff waived using his Real ID Act authority on April 1, 2008:

National Environmental Policy Act
Endangered Species Act
Federal Water Pollution Control Act (commonly referred to as the Clean Water Act)
National Historic Preservation Act
Migratory Bird Treaty Act
Clean Air Act
Archeological Resources Protection Act
Safe Drinking Water Act
Noise Control Act
Solid Waste Disposal Act
Comprehensive Environmental Response, Compensation, and Liability Act
Archaeological and Historic Preservation Act
Antiquities Act
Historic Sites, Buildings, and Antiquities Act
Wild and Scenic Rivers Act
Farmland Protection Policy Act
Coastal Zone Management Act
Wilderness Act
Federal Land Policy and Management Act
National Wildlife Refuge System Administration Act
Fish and Wildlife Act of 1956
Fish and Wildlife Coordination Act
Administrative Procedure Act
Otay Mountain Wilderness Act of 1999
Sections 102(29) and 103 of Title I of the California Desert Protection Act
National Park Service Organic Act
National Park Service General Authorities Act
Sections 401(7), 403, and 404 of the National Parks and Recreation Act of 1978
Sections 301(a)-(f) of the Arizona Desert Wilderness Act
Rivers and Harbors Act of 1899
Eagle Protection Act
Native American Graves Protection and Repatriation Act
American Indian Religious Freedom Act
Religious Freedom Restoration Act
National Forest Management Act of 1976
Multiple Use and Sustained Yield Act of 1960

The Border Wall’s Lawless History

By Scott Nicol

The border wall, which has already done tremendous damage to the environment of our borderlands, will in coming weeks plug a canyon south of San Diego. More than 2 million cubic yards of earth will be torn from adjacent hills and dumped into a canyon called Smuggler’s Gulch to create a massive earthen berm. The wall will then be built on top of this berm, rather than following the canyon’s natural contours. The Keiwit Corporation will be paid $48.6 million to fill the canyon and build 3.5 miles of border wall, doing irreparable damage the Tijuana River estuary in the process. In Keiwit’s home state of Nebraska, or any other part of the country, federal laws would limit the destruction that such a reckless project could do, but on the border the Department of Homeland Security is no longer bound by our nation’s laws.

In 1996 Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, which called for the construction of walls along the U.S.-Mexico border. Beginning in the Pacific Ocean and extending inland for 14 miles, the wall would slice through protected lands, Smuggler’s Gulch, and the Tijuana River. It would consist of parallel concrete and steel walls with a graded road between them, lights, cameras, and sensors, and 50 feet on either side cleared of all vegetation.

California’s Coastal Commission determined that the border wall would violate the federal Coastal Zone Management Act. Of particular concern was the damage that would be done to the Tijuana River National Estuarine Research Reserve and other lands that had been set aside for protection, Smuggler’s Gulch in particular, as well as impacts on threatened and endangered species. The Sierra Club and other environmental groups challenged the border wall in court, alleging that it violated the National Environmental Policy Act. The judge agreed, and construction was halted.In 2005 the Real ID Act was attached as a rider on an appropriations bill funding the wars in Iraq and Afghanistan after it failed to pass on its own merits. It contained a provision intended to overrule the objections of the California Coastal Commission and anyone else who might oppose the construction of border walls. It said, “Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section.”

Department of Homeland Security Secretary Michael Chertoff used his unprecedented new power to “waive in their entirety” the Coastal Zone Management Act, the National Environmental Policy Act, the Endangered Species Act, the Migratory Bird Treaty Act, the Clean Water Act, and other vital federal laws to build the San Diego border wall. The challenges brought by the California Coastal Commission and the Sierra Club were thrown out when the laws that they were based upon were waived.

The Real ID Act amended the Illegal Immigration Reform and Immigrant Responsibility Act, with the phrase “under this section” referring to its 14 miles of California border wall. When the Secure Fence Act was passed two weeks before the 2006 mid-term election, it further amended the Illegal Immigration Reform and Immigrant Responsibility Act, replacing the 14 miles originally called for by the act with over 700 miles of border wall. Because these new walls were now “under this section” Secretary Chertoff had the power under Real ID to “waive all legal requirements” to build them as well.

In 2007 the California pattern was repeated in Arizona. The Sierra Club and Defenders of Wildlife challenged the construction of the border wall in the San Pedro Riparian National Conservation Area. The San Pedro was recognized by the National Audubon Society as its first Globally Important Bird Area, and designated as a world heritage natural area by the United Nations World Heritage Program. The court agreed that the Department of Homeland Security had ignored the requirements of the National Environmental Policy Act when they began building the wall through Arizona’s last free-flowing river, and an injunction temporarily halting construction was handed down. Rather than comply with the law, Secretary Chertoff waived it, once again suspending the laws that were the basis of a successful suit, along with 18 others. Within days of the waiver DHS restarted construction. This case is currently pending before the Supreme Court.

Apparently hoping to head off further court challenges to the border wall, last April Secretary Chertoff issued two waivers. One waived 27 federal laws to allow for the insertion of border walls into the existing flood control levees in Hidalgo County. This followed the determination by the US Fish and Wildlife Service that, “any proposed fence and/or levee segment that bisects lands within the Lower Rio Grande National Wildlife Refuge cannot be found compatible with the purposes for which the refuge was established,” and would therefore be in violation of the National Wildlife Refuge Administration Act. It also brought an abrupt end to the Environmental Impact Statement process mandated by the National Environmental Policy Act.

The second waiver covered every other section of border wall that will be built in 2008 from San Diego, California to Brownsville, Texas. This mega-waiver suspended 36 federal laws. Along with the environmental laws set aside in earlier waivers, Chertoff waived the Farmland Protection Policy Act, the National Historic Preservation Act, the Religious Freedom Restoration Act, the Clean Water Act, the Clean Air Act, the Endangered Species Act, and a host of others. It appears that in his rush to build the border wall, Chertoff was setting aside not only the laws that the wall was certain to violate, but any law that might in any way be relevant.

Predictably, this abuse of power invited court challenge rather than curtailing it. A diverse group of plaintiffs - El Paso County, the El Paso County Water Improvement District No. 1, the Hudspeth County Conservation and Reclamation District No. 1, the Ysleta Del Sur Pueblo of the Tigua Nation, Frontera Audubon Society, the Friends of the Wildlife Corridor, the Friends of Laguna Atascosa National Wildlife Refuge, and Brownsville’s Galeria 409 - have challenged the constitutionality of the Real ID Act’s waiver provision. They allege that giving an Administration appointee the power to overrule acts of Congress that were signed by the President for the express purpose of short-circuiting the functioning of the Judiciary is a violation of the Constitutionally mandated separation of powers.

This is not just an academic question; these plaintiffs will be directly impacted by the suspension of these laws. The waiving of the American Indian Religious Freedom Act means that the wall can be built without consideration of the sites on the Rio Grande that are important to the religious practices of the Tigua Nation. The El Paso and Hudspeth County water districts are charged with providing their counties with drinking and irrigation water. Not only has Chertoff waived the Clean Water Act and the Safe Drinking Water Act, but, “all federal, state, or other laws, regulations and legal requirements of, deriving from, or related to the subject of” the laws listed in the waiver. Apparently, no laws related to water are in force, leaving water districts with no way of knowing what rules still apply.

Long after the remains of the border wall share museum space with the broken concrete of the Berlin Wall, Smuggler’s Gulch will still be filled in, and the Tijuana River estuary that it flows into silted up. Secretary Chertoff, however, is so fixated on building the border wall that he is willing to ignore the consequences of his actions. Serious violations of federal law, resulting in irreparable damage to our nation’s natural and cultural heritage; to homes and farms and businesses; and to the continuation of Native American religious practices that predate the founding of the United States, are all acceptable costs according to this narrow mindset. Chertoff has admitted that, “Yes, you can get over it; yes, you can get under it,” but in his mind an ineffectual border wall is still worth sacrificing the fundamental principles enshrined in the U.S. Constitution.

Texas Groups Sue to Force the Department of Homeland Security to Obey Our Nation's Laws

The Frontera Audubon Society, the Friends of the Wildlife Corridor, and the Friends of Laguna Atascosa National Wildlife Refuge are suing Homeland Security Secretary Michael Chertoff for waiving 36 federal laws in order to build walls along the U.S.-Mexico border. They are joined in this effort by a diverse group of plaintiffs along the Texas-Mexico border: El Paso County, the El Paso County Water Improvement District No. 1, the Hudspeth County Conservation and Reclamation District No. 1, the Ysleta Del Sur Pueblo of the Tigua Nation, and Brownsville’s Galeria 409. The Texas organizations are challenging the constitutionality of section 102 of the Real ID Act, which gives Secretary Chertoff the power to waive any and all federal, state and local laws in order to facilitate construction of the border wall. The suit claims that by placing the authority to unilaterally suspend all laws in the hands of a single Administration appointee, the Real ID Act violates the Constitution’s separation of powers. As organizations dedicated to the preservation of South Texas’ remaining wildlife habitat, these groups assert that if environmental laws are waived, years of effort to protect species and restore critical habitat will be lost.

In April DHS Secretary Chertoff announced that he was using his waiver power to ignore 36 federal laws, including the Endangered Species Act, the Migratory Bird Treaty Act, the National Wildlife Refuge System Administration Act, and the National Environmental Policy Act, in order to speed up construction of over 300 miles of border wall. The only reason for Secretary Chertoff to waive these laws is that he knows that the border wall will violate them.

The fate of the Lower Rio Grande Valley National Wildlife Refuge system is of particular concern. Consisting of individual tracts of native habitat linked by the Rio Grande, it creates a wildlife corridor, providing endangered species such as the ocelot and jaguarundi sufficient territory to find food, water, and mates. Migratory birds also rely on it to rest and refuel on their annual journeys, as well as for nesting. Maps released by DHS show the border wall slicing through many refuge tracts, and cutting off others from the river. The wall will fragment habitat, block migratory pathways, deny animals access to fresh water, and isolate breeding populations of endangered ocelot and jagurandi.

"It's taken 30 years, $80 million, and back-breaking effort to create an 80,000 acre wildlife corridor along the last 250 miles of the Rio Grande. To put a fence or wall through that is insanity," said Keith Hackland, President of the Friends of the Wildlife Corridor.

“Currently, there are only 80 to 100 wild ocelots remaining in the continental U.S., and they cannot hope to survive without the wildlife corridor and the protection of the Endangered Species Act,” said Shane Wilson, President of the Friends of Laguna Atascosa. “The border wall, as proposed, will ensure that future generations will never witness the spectacular beauty of seeing an ocelot in the wild.”

“Further habitat losses in the Valley, which serves as a vital stop over and feeding grounds for hundreds of species of migrating coastal shorebirds, inland waterfowl, and passerines, and nesting habitat for approximately 150 more species, will be catastrophic,” said Wayne Bartholomew, Executive Director of Frontera Audubon.

In their suit, the organizations ask the court to declare section 102 of the Real ID Act unconstitutional and to prevent the Department of Homeland Security from building walls, roads, or other infrastructure on the border that do not fully comply with all of our nation’s environmental laws.

"To instantly dissolve 96 years of environmental laws and protection with a mere wave of the hand is nothing short of monstrous,” said Jim Chapman, Board President of the Frontera Audubon Society. “If laws can be so easily swept aside on the border, the same precedent could be applied anywhere, from the Arctic National Wildlife Refuge to Yellowstone National Park. If our nation’s laws are optional, they aren’t really laws.”


In the April waiver the Department of Homeland Security suspended the following federal laws along the United States' southern border:

The National Environmental Policy Act
The Endangered Species Act
The Federal Water Pollution Control Act (commonly referred to as the Clean Water Act)
The National Historic Preservation Act
The Migratory Bird Treaty Act
The Clean Air Act
The Archeological Resources Protection Act
The Safe Drinking Water Act
The Noise Control Act
The Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act
The Comprehensive Environmental Response, Compensation, and Liability Act
The Archaeological and Historic Preservation Act
The Antiquities Act
The Historic Sites, Buildings, and Antiquities Act
The Wild and Scenic Rivers Act
The Farmland Protection Policy Act
The Coastal Zone Management Act
The Wilderness Act
The Federal Land Policy and Management Act
The National Wildlife Refuge System Administration Act
The Fish and Wildlife Act of 1956
The Fish and Wildlife Coordination Act
The Administrative Procedure Act
The Otay Mountain Wilderness Act of 1999
Sections 102(29) and 103 of Title I of the California Desert Protection Act
The National Park Service Organic Act
The National Park Service General Authorities Act
Sections 401(7), 403, and 404 of the National Parks and Recreation Act of 1978
Sections 301(a)-(f) of the Arizona Desert Wilderness Act
The Rivers and Harbors Act of 1899
The Eagle Protection Act
The Native American Graves Protection and Repatriation Act
The American Indian Religious Freedom Act
The Religious Freedom Restoration Act
The National Forest Management Act of 1976
The Multiple Use and Sustained Yield Act of 1960

Members of Congress Support the Constitutional Challenge to Chertoff's Border Wall Waivers

Today 14 members of Congress announced that they will file an Amicus Curiae brief in support of the constitutional challenge to the Real ID Act filed by the Sierra Club and Defenders of Wildlife. Section 102 of the Real ID Act gives Secretary Chertoff and Secretary Chertoff alone the power to waive any local, state, or federal law that he decides will slow construction of the border wall. The Real ID Act failed when it was introduced as a stand alone bill, and only passed when it was attached as a rider on a bill funding the wars in Iraq and Afghanistan, along with tsunami relief. The power given to the Secretary of Homeland Security to sweep away laws passed by Congress and signed by the President for the express purpose of avoiding judicial review is clearly a violation of the separation of powers provided for in the US Constitution.

It is extremely heartening to see members of Congress defending the Constitution and the rule of law. Many members of Congress appear to be too frightened of the lobbying power of xenophobic extremists, or of the likely negative press spewed by pundits such as Lou Dobbs and Sean Hannnity. Rather than stand up for what they know is right, they crouch down and hope that they won't be noticed and the whole issue will go away. Any member of Congress who has not signed on to the Amicus Curiae brief in support of the Constitutional challenge to Chertoff's unchecked power should be contacted and asked to explain their inaction. Members of the House of Representatives should also be urged to cosponsor the Borderlands Conservation and Security Act (HR 2593) which would repeal section 102 of the Real ID Act, restoring the rule of law to our borderlands.

The following is the press release issued by the members of Congress who will sign the Amicus Curiae brief:

April 7, 2008 – Today, Congressman Bennie G. Thompson (D-MS), Chairman of the Committee on Homeland Security led a group of 14 Members of Congress, including eight Committee Chairmen, in submitting a notice of intent to file an Amicus Curiae brief in the Defenders of Wildlife case (No. 07-1180). The brief, which will be filed by the end of the month, pertains to Homeland Security Secretary Michael Chertoff’s use of questionable waiver authority to skirt numerous federal laws in order to construct fencing along the southwest border.

The Amici will urge the Supreme Court to grant certiorari in the case. The petitioners, the Defenders of Wildlife and Sierra Club, allege that the Department of Homeland Security’s use of the waiver is unconstitutional.

Today’s notice of intent is being submitted by:

· Homeland Security Committee Chairman Bennie G. Thompson (D-MS);
· Energy & Commerce Committee Chairman John Dingell (D-MI);
· Judiciary Committee Chairman John Conyers (D-MI);
· Transportation & Infrastructure Committee Chairman James Oberstar (D-MN);
· Education and Labor Committee Chairman George Miller (D-CA);
· Rules Committee Chairwoman Louise Slaughter (D-NY)
· Veterans Affairs Chairman Bob Filner (D-CA);
· Intelligence Committee Chairman Silvestre Reyes (D-TX);
· Congressman Solomon Ortiz (D-TX);
· Congresswoman Zoe Lofgren (D-CA);
· Congresswoman Sheila Jackson Lee (D-CA);
· Congresswoman Susan Davis (D-CA);
· Congressman Raul M. Grijalva (D-AZ); and
· Congresswoman Yvette D. Clarke (D-NY).

Speaking to today’s filing, Chairman Thompson noted that “this waiver by the Secretary of Homeland Security is a direct challenge to Congress’s Constitutional role. The American people entrust Congress to ensure that the laws of this land are faithfully executed not excused by the Executive Branch.” Congressman Thompson added that “while the protection of our nation is a paramount concern to all of us, DHS must act prudently and respect the laws that Congress has written. The far-reaching effects that this waiver will have on the institution of Congress, as well as the border, demands that we act swiftly.”

House Judiciary Committee Chairman John Conyers, Jr. (D-MI) added that "our responsibility to be stewards of the earth cannot be thrown aside for the sake of an ill-conceived border fence. The Administration exempts itself from a duty to protect the environment, sacred burial sites, and centuries-old farms, but conveniently spares wealthy landowners from the bulldozers."

“This blanket waiver of laws like the Clean Air Act and the Safe Drinking Water Act is a clear and disturbing abuse of the Secretary’s discretion,” added Rep. John D. Dingell, Chairman of the House Committee on Energy and Commerce. “Congress’ efforts to seek justification for this waiver from DHS have been stonewalled, which leads me to believe none exists.”

“The Department of Homeland Security’s decision to issue waivers to expedite the construction of a wasteful fence along the Southwest border is disappointing at best. As a former Border Patrol Sector Chief and current Chair of the House Intelligence Committee, I know the importance of securing our borders and fully support providing our agents with strong tools to carry out their jobs. I do not, however, support DHS’s continued disregard for border communities. This recent attempt to bypass more than 30 laws and regulations to pursue an already ill-advised idea should not move forward,” added Intelligence Committee Chairman Silvestre Reyes.

The Members are represented by Alan E. Untereiner, Max Huffman, and Alan D. Strasser of Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP in Washington, DC.