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Friday, May 5, 2006 | A cold desert wind is blowing across the rusty metal fence that separates California from Baja California. Rain is spitting over the undulating hills that carry the fence off into the misty distance.

A showdown looms here, along this innocuous-looking stretch of chaparral near Campo in eastern San Diego County. On this untamed land, where mountain lions still roam, a potentially litigious fight is brewing over a plan to replace the rusty border fence with an impermeable barrier a football field wide.

Congress is considering immigration reform legislation that could replace the lone barrier here with two 15-foot tall fences separated by a gravel road for Border Patrol vehicles. And thanks to a law enacted last year, the federal government can build the new barrier wherever it wants without considering its environmental impacts.

Near Campo, the barrier could sever migratory routes as old as the land itself. Some are looking to the sage-smelling scrubland as the next battle in the debate between environmentalists and fence proponents.

Environmentalists have reason to be worried. Last year, Homeland Security Secretary Michael Chertoff used a newly granted authority to brush aside laws that had prevented the federal government from building a similar barrier in the Tijuana River National Estuarine Research Reserve, a 2,500-acre salt marsh in southern San Diego.

Environmentalists fear Chertoff will use the power again and plow through more sensitive lands in the fence’s way – this time on a much larger scale. The House of Representatives has approved 698 miles of the barrier. Its length is now being debated in the U.S. Senate.

But is the environmental community too late? Some academic experts contend the border fence fight is already lost. They chide major environmental organizations for failing to participate in the debate that produced the Real ID Act, the federal law that gave Chertoff his new power.

Stephen Mumme, a Colorado State University political science professor and border fence expert, says the Real ID Act gave Chertoff more power to waive federal laws than any government administrator has ever had in the history of the United States.

“That is constitutionally and statutorily incredible. I can’t overemphasize how incredible that is. As a political scientist, I just dropped over,” Mumme says. “The fact that the environmental community was not there was an enormous embarrassment that should shame every big 10 environmental group in the country. It’s only now that we’re seeing some kind of response – and the damage has been done.”

San Diego-based environmental lawyer Cory Briggs unsuccessfully sued the federal government over the decision that allowed the Tijuana estuary fence to go forward. With experts agreeing that Congress will approve some fencing, Briggs acknowledges the environmental implications of fence construction will soon stretch well beyond the estuary, from the Pacific Ocean to the Gulf of Mexico.

The proposal alarms Briggs and other environmentalists, who now ask: Will Chertoff again waive environmental laws to build the fence throughout the serpentine 1,952-mile border without studying its impacts?

A spokesman for U.S. Rep. Duncan Hunter, R-El Cajon, a fence proponent, says construction will be as environmentally friendly as possible. But Hunter and other fence supporters such as U.S. Rep. James Sensenbrenner, R-Wisc., also laud Chertoff’s waiver authority, saying national security trumps environmental worries.

Some fence opponents say this is a case of government power run rampant. Some say the fence will only redirect the flow of illegal immigrants and drug smugglers elsewhere.

Briggs says this: “If they can waive the laws around the rest of the border, this country is so screwed.”

Conservation Initiative

Conservationist Mike White walks past rustling tents and a camouflage-covered Chevy Suburban – the Minutemen are back – and looks down the length of the corrugated metal fence, which covers 44 miles of San Diego County’s 66-mile border with Mexico.

La linea. The border. This is it: two countries separated by a patchwork of Vietnam-era helicopter landing pads. The nation’s debate about immigration reform centers on this dusty, creosote-covered terrain. Should this rusty wall be replaced with two 15-foot high mesh fences spaced 100 yards apart and separated by a gravel road for Border Patrol agents?

White, the San Diego director of the Oregon-based Conservation Biology Institute, hops down a small ledge and approaches the fence, pointing out a small gap. A small person could squeeze beneath it. So could a bobcat.

Congress is focused on those gaps. Fence supporters have boiled down environmental concerns to one argument: Should the border have gaps that allow animals to migrate if they allow drug smugglers, illegal immigrants and possibly al Qaeda operatives to slip through, too?

White doesn’t accept the argument, calling it simplistic. To fully understand the implications of sealing the border, he says, is to understand the region’s biological diversity. San Diego County is home to more endangered species than any other place in the country, according to U.S. Fish and Wildlife officials.

The barrier’s impacts could be subtle. In 50 years, White asks, if global warming pushed a rare plant’s ideal habitat south of the border, how would a 300-foot wide barrier impede its pollination? Its seeds’ movements?

“We can boil this down into simplistic terms,” White says, “but we’re missing the mark by doing that.”

White acknowledges that a fence may be beneficial some places, reducing human traffic and litter in sensitive areas. But he also says the fence’s complex implications should be analyzed before it is built.

White worries about the fence the House proposes. He has spent the last three years working to develop the Las Californias Binational Conservation Initiative, which aims to conserve three links between large chunks of protected land in California and undeveloped land in Mexico.

Preserving those spaces gives wildlife a better chance of surviving the development pressures that makes the county home to so many endangered species.

“These plants and animals are part of a functioning ecosystem,” says Kathy Viatella, a project director at the Nature Conservancy, which has participated in the initiative, along with Mexico-based Pronatura. “When you cut them off, the gene pool is reduced. The long-term health of any natural land is dependent on how diverse they are biologically and genetically.”

The land linking wilderness doesn’t have to be pristine, White says, but it has to allow the free movement of lions, deer, coyotes, bobcats, lizards – and even plants over time.

But the House approved 22 miles of football-field wide fence here, cutting through two of the Las Californias links. Four other portions would be built along the border; the largest would stretch 361 miles from Calexico to Douglas, Ariz.

Standing in the drizzle, with the Minutemen hovering nearby, White considers the thought. What if the federal government forges ahead with the fence – and pushes all environmental regulations aside?

“That would be,” White says, and pauses.

“Just tragic,” he concludes. “I just can’t imagine the magnitude of it. But the question is: Do we need to?”

In some areas, the fence will require earth-moving projects, says Joe Kasper, a spokesman for Rep. Duncan Hunter. The fence, estimated to cost at least $2.2 billion, needs to be able to stand and serve its function, Kasper said. If the land has a 10-percent grade, the Department of Homeland Security can determine whether it’s necessary to move large chunks of earth like is planned in the Tijuana estuary.

“We’re always open to discussing the issue with the environmental community,” Kasper says. “But there’s a security problem down on our land border with Mexico. If it comes down to protecting our families and communities or protecting the environment, our families and communities are going to win all the time.”

Some say the fence won’t stop illegal immigration. Two recent University of California, San Diego surveys of migrants in Mexico found fewer than 10 percent are repelled by border fortifications – fencing, patrols, surveillance.

“There’s no evidence that it will work if the objective is to deter illegal entries from being attempted,” says Wayne Cornelius, director of UCSD’s Center for Comparative Immigration Studies. “The only thing that physical barriers have done so far is to encourage crossings to be made in unfortified areas.”

And that, Cornelius says, has resulted in the deaths each year of about 500 border crossers, largely in forbidding stretches of the Arizona desert.

Even fully militarizing the border from the Pacific to the Gulf wouldn’t stop crossers, Cornelius says. They’d climb over the fence, tunnel beneath it or turn to the coastlines.

“We would simply be focused on sealing it up someplace else,” he says.

‘They Should Have Been There’

When Congress approved the Real ID Act in May 2005, it established the framework for a national identity card and included a provision granting the Homeland Security Secretary sole authority to waive any laws that would slow down border fence construction.

Though the act was attached as a last-minute rider to an Iraq appropriations bill, Congress had debated it for 18 months. Throughout the lengthy debate – during committee hearings in both the House and Senate – the environmental community was nowhere to be found, says Stephen Mumme, the Colorado State professor.

Environmentalists, Mumme says, failed to participate in a national discussion with clear environmental implications along the border. The national security debate is an unconventional policy arena for environmental groups such as the Nature Conservancy and Sierra Club, he says, so they got sideswiped. Not a single environmental witness testified during the debate, Mumme says.

“We have to point a finger at the environmental community,” he says. “They should have been there. And the record shows they weren’t.”

Misty Herrin, a Nature Conservancy spokeswoman, says in response, “I understand where he’s coming from, but it’s important for us and any other person concerned with this issue to focus on the present and the future.”

The law that resulted established the framework for the fight last year over the border fence in the Tijuana estuary, where Chertoff waived environmental regulations that had delayed construction of a 3.5-mile section of fence.

As a result, the federal government does not have to study the impacts of a massive earth moving project on the nearby wetlands. Nearly 2 million cubic yards of dirt will be lopped off the surrounding hills to fill in the notorious crossing known as Smuggler’s Gulch.

Construction hasn’t started on the $35 million estuary barrier. A single fence exists there now, though the new project will create a second fence and road for Border Patrol agents.

Once finished, it will complete the 14-mile barrier separating San Diego and Tijuana. The project began in Oct. 1994, as part of Operation Gatekeeper, which boosted border enforcement – more lights, more fencing, more Border Patrol agents – and pushed illegal immigration corridors into Arizona. Border Patrol arrests in San Diego County dropped from 531,000 in 1993 to 111,000 in 2003.

Clay Phillips, manager of the Tijuana estuary, says the project could impact two archaeological sites and send sediment into the estuary, which is home to five species of endangered birds and a migratory stop for another 370. The estuary is already choked by silt washed down from Tijuana’s overdeveloped hillside colonias.

The resulting silt and sediment buries shellfish, leaving areas where birds won’t nest. One estuary official estimates 10 percent of its salt marshes and mudflats have disappeared in the last four years.

“There aren’t any absolutes about what the impacts will be,” Phillips says, “but there are certainly a lot of fears. When they’re talking about the monumental grading project they’ll be doing in Smuggler’s Gulch, that’s of grave concern to us.”

Phillips says he will work closely with Border Patrol to ensure construction impacts are minimized by employing erosion control measures.

“It’s basically eternal vigilance on our part,” Phillips says, “to work with them to make sure that happens.”

Cory Briggs, the environmental attorney who sued over the Chertoff waiver, says he will soon file a second lawsuit challenging the project.

The suit will argue the government’s project must comply with four federal laws, including the Clean Water Act and Clean Air Act and contend the Chertoff waiver extends beyond Congress’s authority.

“The fight is not over at the estuary,” Briggs says. But, he admits, “If we lose, we’re in bad shape.”

Mumme says the estuary case will continue being the vital litmus test that reveals what can be expected along the rest of the border. Will environmentalists be able to force their way back to the bargaining table?

“There’s a tendency to keep your head low in this debate – and that’s got to stop,” Mumme says. “The environmental community has potential high ground in this. They’re not anti-security. It’s one thing to be anti-security; it’s another thing quite contrary to be for informed security.”

Please contact Rob Davis directly with your thoughts, ideas, personal stories or tips. Or send a letter to the editor.

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