Preserving a Balance

Real ID creates dilemmas for border wildlife refuges

Nestling up to the border east of Douglas, the San Bernardino National Wildlife Refuge is a verdant home to wildlife ranging from coati mundis and Chiricahua leopard frogs to several species of endangered fish.

But the same geography that blesses this sanctuary with natural abundance also places it on the front lines of America's security debate.

Every day, refuge manager Bill Radke must balance those competing forces, an effort involving good land stewardship, precise biology and a tight working relationship with federal law-enforcement agencies such as the Border Patrol.

That relationship grew exponentially more complicated in 2005, when Congress passed the Real ID Act, granting the U.S. Department of Homeland Security leeway to ignore the National Environmental Policy Act, the Endangered Species Act and other critical regulations when building roads and barriers along the Mexican border. Real ID also prohibits any judicial review, making lawsuits against habitat-destructive projects almost pointless.

In 2006, President Bush subsequently signed the Secure Fence Act, which mandates roughly 700 miles of physical barriers and electronic surveillance along the border. Of that, about 300 miles are complete, and approximately 360 more miles are to be finished this year. Congress allocated $1.2 billion for the project, and the Bush administration has asked for $1 billion more.

Meanwhile, this effort has become something of a public-relations nightmare for federal officials. Not only must they wrangle with property owners reluctant to have a huge barrier stretched along their land, but they've also invoked ire with heavy construction in sensitive wildlife habitat such as the San Pedro Riparian National Conservation area.

Defenders of Wildlife and the Sierra Club have taken their fight to court, most recently in a petition to the Supreme Court arguing that Real ID grants the DHS unconstitutionally broad powers. That case received a major boost on April 7, when 14 congressmen, including Rep. Raúl Grijalva, announced their intent to file a court brief supporting the environmentalists.

Apparently to avoid further public rancor, DHS Secretary Michael Chertoff announced on April 1 that environmental reviews would be waived for nearly 500 miles of borderline from California to Texas. "Criminal activity at the border does not stop for endless debate or protracted litigation," the secretary said in a press release accompanying the mega-waiver.

Chertoff's move has left land managers such as Radke wondering how projects slated for their refuges will proceed. "I'll be honest with you," he says. "It has become something of a moving target." Despite enjoying good relations with the Border Patrol, he knows that the agency, as part of the DHS, can ultimately do what it wants.

Unfortunately, law-enforcement needs are often directly at odds with wildlife-preservation goals, particularly in a national refuge system mandated to filter all decisions through a "compatibility" prism. "Is an activity such as a vehicle barrier, for example, compatible with the purpose this refuge was established?" Radke asks.

Answering such questions becomes even more dicey when they involve constructing a massive wall. "This refuge was established to protect and recover a native fish," he says. "And that habitat straddles the border. So recovering the fish on the Arizona side doesn't recover the species. You have to be working on the Sonora side to recover it, too."

That task becomes monumental, however, when a blockade is thrown up in the middle. "If there's a barrier to fish and wildlife movement, it's not consistent with what we need to be doing to manage the refuge.

In statutory terms, that's something of a no-brainer. "There's no way, without this waiver, that Fish and Wildlife would be able to say that some of DHS' infrastructure activities are compatible," Radke says. "It put us at odds, because we have two very different missions."

Meanwhile, conservationists worry that this latest, sweeping waiver may provide the DHS cover to construct barriers even in areas not designated under the Secure Fence Act. They also express concern that, without even cursory environmental assessments--or the red flags they raise--activists will have little ability to track construction projects or their impact.

Activists now find themselves in much the same predicament as land managers, as decision-making further retreats from public view. "Right now, the refuge managers are just trying to keep a place at the table," says Sean Sullivan, co-chair of the Sierra Club's Rincon Group in Tucson. "But the truth is that the DHS doesn't care what land managers have to say, or what communities and enviros have to say."

According to Homeland Security spokeswoman Amy Kudwa, department representatives have repeatedly met with land owners and have worked closely with land managers to mitigate impacts. She says the latest waiver won't change that, although she won't guarantee exactly what type of environmental reviews will occur in sensitive areas.

She also defends Chertoff's huge waiver, noting that a fence project near San Diego was stalled by litigation for nearly a decade before passage of the Real ID Act.

"We need to secure the borders," Kudwa says. "For the past decade, illegal entry into this country has been a significant problem. We have a congressional mandate to construct this fence by the end of this year, and we have promised that we would meet this goal."

But a process driven by political expediency rather than environmental concerns puts land managers "between a rock and a hard spot," says Matt Clark, Southwest representative for Defenders of Wildlife. "They're seeing fragmentation of the habitat that's central to their mission as refuges. But there's some serious pressure on them from DHS."

Not surprisingly, things can get sticky when land managers buck that pressure. This became obvious last year when, citing compatibility issues, Buenos Aires National Wildlife Refuge manager Mitch Ellis pulled his support for a border fence along the preserve.

That standoff was later broken when DHS officials strong-armed a land swap with the U.S. Fish and Wildlife Service--the refuge's parent agency--and took control of a nearly 1-mile stretch along the border for fence construction. Soon after, Ellis left the Buenos Aires for personal reasons.

Today, Sally Gall is acting manager of the refuge. She's still waiting to learn exactly how the new waiver will affect plans for a 110-foot communication tower and up to four 90-foot camera towers. Those projects will add to the Border Patrol's already significant presence on the Buenos Aires, which currently includes fence monitoring, a horse facility and agents constantly cruising the range on ATVs or in trucks.

Like Radke, Gall emphasizes her close coordination with the Border Patrol, and she doesn't expect the waiver to change that.

Still, all that law-enforcement hardware does take a toll. "We understand the border issues and why Border Patrol is doing what they need to do out here," she says. "But the accumulated infrastructure, it is a concern. Normally, on a wildlife refuge, this type of stuff would not be allowed."

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