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112th Congress                                            Rept. 112-448
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 1

======================================================================



 
           NATIONAL SECURITY AND FEDERAL LANDS PROTECTION ACT

                                _______
                                

 April 17, 2012.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Hastings of Washington, from the Committee on Natural Resources, 
                        submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1505]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 1505) to prohibit the Secretaries of the 
Interior and Agriculture from taking action on public lands 
which impede border security on such lands, and for other 
purposes, having considered the same, report favorably thereon 
with an amendment and recommend that the bill as amended do 
pass.
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``National Security and Federal Lands 
Protection Act''.

SEC. 2. PROHIBITION ON IMPEDING CERTAIN ACTIVITIES OF U.S. CUSTOMS AND 
                    BORDER PROTECTION RELATED TO BORDER SECURITY.

  (a) Prohibition on Secretaries of the Interior and Agriculture.--The 
Secretary of the Interior or the Secretary of Agriculture shall not 
impede, prohibit, or restrict activities of U.S. Customs and Border 
Protection on land under the jurisdiction of the Secretary of the 
Interior or the Secretary of Agriculture to achieve operational control 
(as defined in section 2(b) of the Secure Fence Act of 2006 (8 U.S.C. 
1701 note; Public Law 109-367)) over the international land borders of 
the United States.
  (b) Authorized Activities of U.S. Customs and Border Protection.--
          (1) Authorization.--U.S. Customs and Border Protection shall 
        have immediate access to land under the jurisdiction of the 
        Secretary of the Interior or the Secretary of Agriculture for 
        purposes of conducting the following activities on such land 
        that assist in securing the international land borders of the 
        United States:
                  (A) Construction and maintenance of roads.
                  (B) Construction and maintenance of fences.
                  (C) Use vehicles to patrol.
                  (D) Installation, maintenance, and operation of 
                surveillance equipment and sensors.
                  (E) Use of aircraft.
                  (F) Deployment of temporary tactical infrastructure, 
                including forward operating bases.
  (c) Clarification Relating to Waiver Authority.--
          (1) In general.--Notwithstanding any other provision of law 
        (including any termination date relating to the waiver referred 
        to in this subsection), the waiver by the Secretary of Homeland 
        Security on April 1, 2008, under section 102(c)(1) of the 
        Illegal Immigration Reform and Immigrant Responsibility Act of 
        1996 (8 U.S.C. 1103 note; Public Law 104-208) of the laws 
        described in paragraph (2) with respect to certain sections of 
        the international border between the United States and Mexico 
        and between the United States and Canada shall be considered to 
        apply to all land under the jurisdiction of the Secretary of 
        the Interior or the Secretary of Agriculture within 100 miles 
        of the international land borders of the United States for the 
        activities of U.S. Customs and Border Protection described in 
        subsection (b).
          (2) Description of laws waived.--The laws referred to in 
        paragraph (1) are the National Environmental Policy Act of 1969 
        (42 U.S.C. 4321 et seq.), the Endangered Species Act of 1973 
        (16 U.S.C. 1531 et seq.), the Federal Water Pollution Control 
        Act (33 U.S.C. 1251 et seq.), the National Historic 
        Preservation Act (16 U.S.C. 470 et seq.), the Migratory Bird 
        Treaty Act (16 U.S.C. 703 et seq.), the Clean Air Act (42 
        U.S.C. 7401 et seq.), the Archaeological Resources Protection 
        Act of 1979 (16 U.S.C. 470aa et seq.), the Safe Drinking Water 
        Act (42 U.S.C. 300f et seq.), the Noise Control Act of 1972 (42 
        U.S.C. 4901 et seq.), the Solid Waste Disposal Act (42 U.S.C. 
        6901 et seq.), the Comprehensive Environmental Response, 
        Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et 
        seq.), Public Law 86-523 (16 U.S.C. 469 et seq.), the Act of 
        June 8, 1906 (commonly known as the ``Antiquities Act of 
        1906'') (16 U.S.C. 431 et seq.), the Act of August 21, 1935 (16 
        U.S.C. 461 et seq.), the Wild and Scenic Rivers Act (16 U.S.C. 
        1271 et seq.), the Farmland Protection Policy Act (7 U.S.C. 
        4201 et seq.), the Coastal Zone Management Act of 1972 (16 
        U.S.C. 1451 et seq.), the Wilderness Act (16 U.S.C. 1131 et 
        seq.), the Federal Land Policy and Management Act of 1976 (43 
        U.S.C. 1701 et seq.), the National Wildlife Refuge System 
        Administration Act of 1966 (16 U.S.C. 668dd et seq.), the Fish 
        and Wildlife Act of 1956 (16 U.S.C. 742a et seq.), the Fish and 
        Wildlife Coordination Act (16 U.S.C. 661 et seq.), subchapter 
        II of chapter 5, and chapter 7, of title 5, United States Code 
        (commonly known as the ``Administrative Procedure Act''), the 
        Otay Mountain Wilderness Act of 1999 (Public Law 106-145, 113 
        Stat. 1711), sections 102(29) and 103 of California Desert 
        Protection Act of 1994 (16 U.S.C. 410aaa et seq.), the National 
        Park Service Organic Act (16 U.S.C. 1 et seq.), Public Law 91-
        383 (16 U.S.C. 1a-1 et seq.), sections 401(7), 403, and 404 of 
        the National Parks and Recreation Act of 1978 (Public Law 95-
        625, 92 Stat. 3467), the Arizona Desert Wilderness Act of 1990 
        (16 U.S.C. 1132 note; Public Law 101-628), section 10 of the 
        Act of March 3, 1899 (33 U.S.C. 403), the Act of June 8, 1940 
        (16 U.S.C. 668 et seq.), (25 U.S.C. 3001 et seq.), Public Law 
        95-341 (42 U.S.C. 1996), Public Law 103-141 (42 U.S.C. 2000bb 
        et seq.), the Forest and Rangeland Renewable Resources Planning 
        Act of 1974 (16 U.S.C. 1600 et seq.), the Multiple-Use 
        Sustained-Yield Act of 1960 (16 U.S.C. 528 et seq.), the 
        Mineral Leasing Act (30 U.S.C. 181, et seq.), the Materials Act 
        of 1947 (30 U.S.C. 601 et seq.), and the General Mining Act of 
        1872 (30 U.S.C. 22 note).
  (d) Protection of Legal Uses.--This section shall not be construed to 
provide--
          (1) authority to restrict legal uses, such as grazing, 
        hunting, or mining, on land under the jurisdiction of the 
        Secretary of the Interior or the Secretary of Agriculture; or
          (2) any additional authority to restrict legal access to such 
        land.

SEC. 3. SUNSET.

  This Act shall have no force or effect after the end of the 5-year 
period beginning on the date of enactment of this Act.

                          PURPOSE OF THE BILL

    The purpose of H.R. 1505, as ordered reported, is to 
prohibit the Secretaries of the Interior and Agriculture from 
taking action on public lands that impede border security on 
such lands.

                  BACKGROUND AND NEED FOR LEGISLATION

    H.R. 1505 resolves the turf war between the Border Patrol 
and federal land managers within the Department of the Interior 
and the Department of Agriculture that has put our national 
security at risk. Currently, land management bureaus have the 
authority to thwart border security activities under 
authorities created by environmental laws such as the 
Wilderness Act and the Endangered Species Act. Unfortunately, 
these laws are being used to block the Border Patrol from 
taking the actions needed to protect these federal lands and 
control the border, allowing drug smugglers and human 
traffickers to enter the country undeterred.
    Congress mandated that the Border Patrol achieve 
``operational control'' of the international borders of the 
United States. Operational control is defined in statute as the 
``prevention of all unlawful entries into the United States, 
including entries by terrorists, other unlawful aliens, 
instruments of terrorism, narcotics, and other contraband.'' 
While Congress has authorized large increases in manpower and 
equipment for the Border Patrol, it has left regulatory 
obstacles in its path that make operational control an 
unattainable demand. H.R. 1505 will solve this problem by 
exempting essential border security operations from significant 
restrictions created by certain environmental laws.
    Nearly unfettered access onto our federal borderlands by 
illegal border crossers has devastated significant natural and 
cultural sites. Tons of litter and other biological pollutants 
are left behind as illegal traffic tramples federal property. 
Cartels and smugglers are not known for their adherence to 
environmental law, but the Border Patrol is bound by the 
restrictions mandated by federal land managers.
    The Border Patrol needs access to patrol the remote 
landscapes found on much of the border. However, current law 
requires them to ask permission of land agency bureaucrats to 
do their job. The Border Patrol must obtain permission to enter 
federal lands. The Border Patrol must obtain permission to 
place monitoring equipment necessary to secure the border. The 
Border Patrol must obtain permission to move equipment on 
federal land. The Border Patrol must obtain permission to place 
temporary camps that would keep Border Patrol agents in the 
field doing their job. The Border Patrol must obtain permission 
to maintain roads on federal lands. Land managers can take 
months to grant these authorizations to the Border Patrol. At 
times, permission is not given, leaving heavily trafficked 
areas unprotected. There is no incentive for the local federal 
land managers to cooperate with the Border Patrol.
    This legislation would facilitate security access to 
federal lands by extending the waiver authority previously 
granted to the Department of Homeland Security and exercised to 
build portions of the border fence between the U.S. and Mexico. 
This authority would only encompass federal land within the 
current statutory jurisdiction of the Border Patrol, defined as 
100 miles from the international border. The authority also 
expires in five years, which will allow Congress an opportunity 
to determine if it needs extending or modification. Management 
of federal lands will not change. The Department of the 
Interior and Department of Agriculture will retain those 
responsibilities and continue to oversee recreational and 
economic uses of these federal lands. The Border Patrol is 
prohibited from restricting legal uses of federal lands, such 
as hunting, grazing, mining, camping, or using all-terrain 
vehicles.

                            COMMITTEE ACTION

    H.R. 1505 was introduced on April 13, 2011, by Congressman 
Rob Bishop (R-UT). The bill was referred to the Committee on 
Natural Resources, and within the Committee to the Subcommittee 
on National Parks, Forests and Public Lands. The bill was 
additionally referred to the Committee on Agriculture and to 
the Committee on Homeland Security. On July 8, 2011, the 
Subcommittee on National Parks, Forests and Public Lands held a 
hearing on the bill. On October 5, 2011, the Full Natural 
Resources Committee met to consider the bill. The Subcommittee 
on National Parks, Forests and Public Lands was discharged by 
unanimous consent. Congressman Rob Bishop (R-UT) offered an 
amendment in the nature of a substitute. Congressman Colleen 
Hanabusa (D-HI) offered an amendment designated .037 to the 
amendment in the nature of a substitute; that amendment was 
withdrawn. Congressman Raul Grijalva (D-AZ) offered an 
amendment designated .001 to the amendment in the nature of a 
substitute; that amendment was adopted by voice vote. 
Congressman Raul Grijalva (D-AZ) offered an amendment 
designated .002 to the amendment in the nature of a substitute; 
the amendment was not adopted by a record vote of 13 to 25, as 
follows:


    No further amendments were offered, and the amendment in 
the nature of a substitute offered by Mr. Bishop was adopted by 
voice vote. The bill, as amended, was then ordered favorably 
reported to the House of Representatives by a record vote of 26 
to 17, as follows:


            COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

                    COMPLIANCE WITH HOUSE RULE XIII

    1. Cost of Legislation. Clause 3(d)(1) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(2)(B) 
of that rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974. Under clause 3(c)(3) of rule 
XIII of the Rules of the House of Representatives and section 
403 of the Congressional Budget Act of 1974, the Committee has 
received the following cost estimate for this bill from the 
Director of the Congressional Budget Office:

H.R. 1505--National Security and Federal Lands Protection Act

    H.R. 1505 would waive the requirement that the Department 
of Homeland Security (DHS) comply with certain federal laws 
when conducting border security activities on federal lands 
within 100 miles of U.S. land borders. The bill also would 
eliminate the requirement that DHS consult with the Department 
of the Interior (DOI) and the U.S. Department of Agriculture 
(USDA) before carrying out such activities. Based on 
information from the affected agencies, CBO estimates that 
implementing the legislation would not have a significant 
impact on the federal budget. Enacting H.R. 1505 would not 
affect direct spending or revenues; therefore, pay-as-you-go 
procedures do not apply.
    Under current law, DHS has the authority to waive various 
environmental and land management laws when conducting certain 
activities related to border security. The bill would provide a 
broad waiver of those laws for all such activities conducted 
within 100 miles of U.S. land borders and would eliminate the 
requirement that DHS consult with DOI and USDA before carrying 
out those activities. The provisions of the legislation would 
expire five years after enactment.
    H.R. 1505 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Jeff LaFave. The 
estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.
    2. Section 308(a) of Congressional Budget Act. As required 
by clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives and section 308(a) of the Congressional Budget 
Act of 1974, this bill does not contain any new budget 
authority, spending authority, credit authority, or an increase 
or decrease in revenues or tax expenditures. Based on 
information from the Department of the Interior and the U.S. 
Department of Agriculture, CBO estimates that implementing the 
legislation would not have a significant impact on the federal 
budget.
    3. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill, as ordered reported, is to prohibit the 
Secretaries of the Interior and Agriculture from taking action 
on public lands that impede border security on such lands.

                           EARMARK STATEMENT

    This bill does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined 
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 
the House of Representatives.

                    COMPLIANCE WITH PUBLIC LAW 104-4

    This bill contains no unfunded mandates.

                PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

    This bill is not intended to preempt any State, local or 
tribal law.

                        CHANGES IN EXISTING LAW

    If enacted, this bill would make no changes in existing 
law.

                            DISSENTING VIEWS

    The purpose of H.R. 1505 is not to make the border more 
secure. Rather, the purpose of the bill is to use border 
security as cover to effectively repeal more than a century of 
environmental protection for Americans living and working along 
our borders with Canada and Mexico.
    In April, the Natural Resources Committee held a joint 
oversight hearing with the House Oversight and Government 
Reform Committee during which the Government Accountability 
Office (GAO), the Interior Department, the Agriculture 
Department and the Border Patrol all testified, under oath, 
that federal land management laws do not impair border 
security.
    According to the GAO report (GAO-11-573T), 22 of 26 Border 
Patrol Agents-in-Charge interviewed reported that federal land 
management laws had no impact on the overall security status of 
their jurisdiction. The four remaining Agents-in-Charge 
reported that they had not requested increased resources to 
mitigate the conflicts they saw or that their request for such 
resources had been denied by the Border Patrol, not the 
Interior Department.
    In summary, the number of Border Patrol Agents-in-Charge 
who found that federal land management laws were impeding 
border security, but were prevented from fixing the problem by 
the Interior Department, was exactly zero. The Administration 
concurred with this finding at multiple hearings. The record is 
clear--the problem this bill claims to solve does not exist.
    The true purpose of this legislation is also clear. The 
proponents oppose the more than 30 bedrock environmental 
protections effectively repealed by this legislation--including 
the Clean Water Act, Clean Air Act and Safe Drinking Water 
Act--everywhere, not just within 100 miles of the border. H.R. 
1505 employs a manufactured conflict with border security to 
weaken their application.
    The laws waived by this Act are the work-product of dozens 
of Administrations and Congresses, developed after thousands of 
hours of negotiation and compromise and, in most cases, were 
enacted with strong, bi-partisan support. H.R. 1505 hands the 
Border Patrol a unilateral veto over all of these laws.
    This legislation grants the Chief of U.S. Customs and 
Border Protection unprecedented power; application of dozens of 
laws, impacting millions of acres and millions of people's 
lives would be within the Chief's unilateral and unreviewable 
control. Management of dozens of National Parks, wildlife 
refuges, and forests would be ceded to DHS. Decisions regarding 
whether our water is safe to drink, our air is safe to breath 
and whether Superfund sites are to be cleaned up would all rest 
with one individual.
    Enactment of H.R. 1505 would not only allow DHS to trample 
the ground near the border, it would also allow the agency to 
trample the rights of states and Native People. This 
legislation would empower individual Border Patrol agents to 
enter Tribal land, without notice, and conduct any and all 
activities--including excavation and construction--without 
regard to the presence of Tribal sacred sites, burial sites, or 
environmental impacts. Subcommittee Ranking Member Grijalva 
offered an amendment to exempt Tribal lands from the sweeping 
application of H.R. 1505 but that attempt to protect Tribal 
sovereignty was rejected by the Majority.
    The real problem of border enforcement is one of manpower, 
budgets, economic incentives and difficult terrain. This bill 
addresses none of these concerns. We will not secure our 
borders by allowing our water to be polluted. We will not stop 
illegal drug trafficking by allowing our air to get dirtier and 
we will not stop terrorists from entering this country by 
allowing toxic waste dumps along the border.
    In the end, if H.R. 1505 reduces the number of immigrants 
coming to this country, it will only be because the water, air 
and economies of our border communities are so degraded that no 
one wants to come here anymore.
    This legislation is sweeping and reactionary; the bill is 
not what it appears and should be rejected.
                                   Edward J. Markey.
                                   Raul M. Grijalva.
                                   Rush Holt.
                                   John Garamendi.
                                   Grace F. Napolitano.
                                   Niki Tsongas.
                                   Colleen W. Hanabusa.
                                   Ben R. Lujan.
                                   Dale E. Kildee.