Border Patrol Navigating Reams of Regulation to Secure Federal Land

Border Patrol agents must navigate a patchwork of environmental regulations dating back decades in order to police for drug cartels, smugglers and illegal immigrants -- often on foot-and-horseback in some of the most vulnerable areas of the southwest border.

To unlock the legislative handcuffs, a group of House lawmakers are pushing a bill that would prohibit the Departments of Interior and Agriculture from taking any action that would "impede border security" on public lands.

The restrictions on those lands cover numerous laws, rules and interagency agreements, which the Department of Homeland Security has warned are getting in the way of securing the border at a "critical" time.

"It's insanity," said bill author Rep. Rob Bishop, R-Utah.

The basis for the restrictions dates back to the Wilderness Act of 1964 which established millions of acres of federal protected land and for the most part barred permanent roads and prohibited motor vehicles, motorboats, aircraft and any other "mechanical transport" from entering. For most casual hikers and backcountry campers, that's not a problem. But as the border has become more porous over the decades, lawmakers say Border Patrol guards have found themselves at a disadvantage as illegal immigrants use the protected lands as a corridor to enter the United States.

The most comprehensive round-up of the rules of the road -- rather, backcountry -- for Border Patrol can be found in a joint agreement signed in 2006. The agreement among Homeland Security, Interior and Agriculture grants access to federal and wilderness lands under very specific circumstances.

As a general rule, the Border Patrol is allowed to patrol and pursue suspects on foot or on horseback -- they may use vehicles where there are existing roads and in areas already designed for off-road use.

But the Department of Homeland Security wrote in a letter to Bishop last October that the foot-and-horseback strategy was not ideal.

"(Border Patrol) makes every reasonable effort to use the least impacting means of transportation within wilderness; however along the southwest border it can be detrimental to the most effective accomplishment of the mission. For example, it may be inadvisable for officer safety to wait for the arrival of horses for pursuit purposes," the letter said.

The regulations get trickier. Under the 2006 agreement, if Border Patrol wants to start launching routine patrols or other "non-emergency" activities, it needs to make a written request to Interior or Agriculture -- agreements are supposed to be developed within 90 days.

Border Patrol also can only drive into the wilderness areas in an emergency situation. That means it involves "human life, health, safety of persons within the area, or posing a threat to national security" -- and the pursuit is "reasonably expected" to result in an arrest. Any time that happens, Border Patrol has to notify the local federal land manager to report on what happened. If the manager determines there was "significant" environment impact, they have to submit a written report.

The rules don't end there. A House GOP aide said there are plenty of local rules unique to each region. Plus Border Patrol needs to navigate around rules dealing with endangered species.

The October letter from Homeland Security noted that Border Patrol was trying to work with Interior and the Forest Service regarding "Endangered Species Act issues related to Grizzly Bear and road use." Biologists said vehicle use could be "detrimental" to the bears, but the letter said Border Patrol "must occasionally have motorized presence in those areas."

The letter noted that as Border Patrol agents crack down on illegal immigrants elsewhere, the "remote areas" could be used more and more as corridors.

"The ability of the USBP to effectively patrol these areas has never been more critical," the letter said.

The Department of Interior said in a statement to that Secretary Ken Salazar is working to resolve the concerns.

"There has been significant progress made on the border. Collaborative work between DOI staff and DHS has allowed for border security infrastructure to be strategically located, including on federal lands, to meet DHS security requirement and goals, while substantially reducing government spending and significantly reducing adverse effects to natural and cultural resources," spokeswoman Kendra Barkoff said. "This is a high priority for him."