Border Standoff

Public-land managers fight the feds over resources

These are strange times on the Mexican border, where a surreal fence soon will stretch for hundreds of miles. While this may be a fine tribute to our national phobia, that vast and destructive barrier would shrink by about 90 feet if Lee Baiza has his way.

Baiza is the recently installed superintendent of Organ Pipe Cactus National Monument, and he's fighting to protect a sensitive stretch of his border park from a 15-foot-high fence that he says is neither wanted nor needed.

This particular segment would climb up and over Monument Hill, an area that Baiza argues could be just as well fortified with state-of-the-art surveillance equipment. In fact, not only would the barrier actually make law enforcement more difficult--by pushing crossers into less visible areas--but he says it would exact an unacceptable environmental toll.

To make such arguments, however, is to take on the profoundly powerful Department of Homeland Security. The DHS wants a fence. And the department doesn't shrink from playing hardball to get what it wants.

So Baiza played a little hardball of his own: He refused to sign off on the fence. "They wanted me to issue a special-use permit (for the construction) without addressing any of the needs we had," he says. For example, "We have inventoried 200 columnar cacti within that 90-foot stretch. They'll all be bulldozed. Construction will wipe out that whole area."

These complaints did not go over well, particularly since a federal contractor was already there and itching to get started. There was consternation up and down the security ranks, and the pressure to play along was intensifying.

Here he was, only a few months into his new job, and Baiza already had a tiger by the tail.

That tiger has already flattened others. Laws granting the DHS enormous power have hamstrung efforts to protect sensitive areas such as the San Pedro River, where environmentalists recently lost a bitter battle to halt fence construction.

Given such stinging defeats, it's becoming clear that land managers such as Baiza are in perhaps the best position to temper DHS excesses. But that's neither an easy nor a pleasant role. Border watchers will recall Mitch Ellis, former manager of the Buenos Aires National Wildlife Refuge, who last summer tangled with the DHS over fence construction across the refuge--a project promulgated with no public input and only cursory environmental assessments. Today, Ellis no longer manages Buenos Aires.

Much of this conflict is rooted in the Real ID Act, passed by Congress in 2005. It awarded the secretary of homeland security sweeping authority to override all environmental laws--including the Endangered Species Act and National Environmental Policy Act--when building roads and barriers along the Mexican border. It also prohibits judicial review of such decisions, making lawsuits pointless.

The blunt power of Real ID was first realized a few months after its passage, when the law was invoked by DHS Secretary Michael Chertoff to complete a contentious fence along the border south of San Diego.

It was felt again recently on the San Pedro, a dense ribbon of life weaving 140 miles through Southern Arizona from Mexico. Ranked by the American Bird Conservancy as a "Globally Important Bird Area," and the United Nations as a World Heritage Natural Area, San Pedro's riverbanks are thick with willows, cottonwoods and nearly 500 species of wildlife.

Last fall, the agency nonetheless began building a border barrier across the river near the Mexico border--after U.S. Bureau of Land Management biologists rushed through an environmental assessment with no public comment.

When the Sierra Club and Defenders of Wildlife went to court, a federal judge issued a temporary injunction halting construction. Just before that injunction expired, however, Secretary Michael Chertoff used his power to issue a waiver, and the project commenced.

The environmentalists filed suit once more, arguing that the DHS violations of environmental law were unconstitutional, and calling Chertoff "a roving commission to repeal" any statutes that might slow fence construction.

But in mid-December, a federal district judge dismissed the suit. "The construction of the border fence pertains to both foreign affairs and immigration control--areas over which the executive branch traditionally exercises independent constitutional authority," wrote Judge Ellen Segal Huvelle.

Still, federal land managers have a few more tools in their belt than do environmentalists. In this case, by refusing to perfunctorily sign a special-use permit, Baiza was challenging Chertoff to issue a waiver--and then endure the fierce criticism such a decision always provokes.

In effect, Baiza was calling the secretary's bluff. "There's consistently this threat of a waiver," says the superintendent. "Obviously, they used it at the San Pedro. But what they don't understand is that it just gets them out of the NEPA timeline. It doesn't necessarily eliminate the need to work through some elements within the permit aspect."

In other words, waiver or not, the DHS can still be forced to recognize resource concerns.

Meanwhile, DHS spokeswoman Laura Keehner denies that her department uses the waiver threat to rein in defiant land managers. And she says the action is used only with extreme discretion. "There have been certain, very rare instances in which we've had to use environmental waivers or whatnot. I believe that (Chertoff) has used it three times. I would not say that is extraneous or an overuse."

Regardless, it appears that the secretary blinked at Organ Pipe. "He has said he wanted us to find a way to resolve this without a waiver," Baiza says.

But to reach that resolution, Baiza wants several specific issues addressed, from the need for a bona fide environmental analysis (he calls the current analysis "inadequate") and a detailed revegetation strategy, to the protection of cultural sites--including an archaeological monitor present during construction.

Baiza also wonders why the DHS couldn't use the much-touted surveillance systems it paid millions to develop--systems that would leave a far smaller footprint on Monument Hill. "It is within our mandate to protect these very important resources to this ecosystem," he wrote recently to the Army Corps of Engineers, "and (I) feel that with additional technology being discussed, some fencing such as this proposed undertaking would not be necessary."

Baiza says he just wants to protect his park. "It's not that we're pro-terrorism or that we aren't supporting our federal government in their endeavors," he says. "It's just the way they go about doing certain things--they're not looking at the alternatives. They're just dead-set that they want the fence."