State of California et al v. Trump et al

Filing 249

REPLY (re 236 MOTION for Partial Summary Judgment Regarding Border Barrier Projects Undertaken Pursuant to 10 U.S.C. § 2808 and Opposition to Plaintiffs' Motion for Partial Summary Judgment ) filed by Department of Defense, David Bernhardt, Mark T. Esper, Kevin K. McAleenan, Ryan D. McCarthy, Steven T. Mnuchin, Richard V. Spencer, Donald J. Trump, U.S. Department of Homeland Security, U.S. Department of the Interior, U.S. Department of the Treasury, United States of America, Heather Wilson. (Attachments: # 1 Exhibit, # 2 Exhibit)(Warden, Andrew) (Filed on 11/8/2019)

EXHIBIT 2

DECISION MEMORANDUM

DATE:

September 18, 2019

SUBJECT: Applications for

Emergency Withdrawal of Certain Land along the Southem
United States Border

I.

INTRODUCTION

This memorandum explains my decision regarding five applications for an emergency
withdrawal for a period of three years ofvarious land parcels comprising approximately 559 total
acres and transfer ofjurisdiction ofsuch land, subject to valid existing rights, to the Department
ofthe Army in accordance with section 204(e) ofthe Federal Land Policy and Management Act

(FLPMA).
Section 204(e) requires a Secretary ofthe Interior to make an emergency withdrawal when that
Secretary determines that an emergency situation exists and that extraordinary measures must be
taken to preserve values that would otherwise be lost. 43 U.S.C. $ 1714(e); 43 C.F.R. $ 2310.5.
Stated simply, once the Secretary determines that the statutory threshold is met and the
determination is made, the action of withdrawing the land is non-discretionary.

II.

BACKGROT]NI)

On February 15,2019, the President ofthe United States issued Proclamation 9844 declaring a
national emergency at the southem border, and, among other things, invoking the military

construction authority at 10 U.S.C. $ 2808.I On February 25,2019, the Department of
Homeland Security (DHS), the Departrnent tasked with border security, identified several border
security projects for which it sought Department of Defense @OD) assistance with the
construction ofborder barriers, including fences, roads, and lighting, under the provisions of 10
U.S.C. $ 284(b)(7), which authorizes the Secretary of Defense to provide support to other
Federal Departments "for the construction of roads and fences and installation oflighting to
block drug smuggling corridors across intemational boundaries of the United States." On March
20,2019, the Secretary of Homeland Security recommended (in order of priority) several other
projects for military construction of border barriers under 10 U.S.C. $ 2808 to address a surge of
illegal border crossings from migrant activity as well as drug and human trafficking.

1

10 U.S.C. g 2808. provides, in relevant part:

In the event of a declaration of war or the declaration by the President ofa national emergency in
accordance with the National Emergencies Act (50 U.S.C. l60l e, seq) that requires use ofthe
armed forces, the Secretary of Defense, without regord to qny olher proyision of law,may
undertake military construction projects, and may authorize the Secretaries ofthe military
departments to undertake military construction projects, not otherwise authorized by law that are
oecessary to support such use of the armed forces . . . .

"Milita.ry consfuction" is defined as "any consfiuction, development or extension ofany kind carried out with
respect to a military installation. . ..". l0 U.S.C. $ 2801(a). A "military installation," in tum, is defined as a base,
camp, post, station, yard, center, or other activity under the jurisdiction of [DoD]." /d at $2801(cX4).
I

On September 3, 2019, the Secretary of Defense, in reliance on analysis from DOD, DHS, and
an independent analysis by the Chairman of the Joint Chiefs of Staff, determined that I I military
construction projects referenced in either the February 25,2019, memo or the Much20,2019,
letter:
are necessary to support the use of the armed forces in connection with the national
emergency. These projects will deter illegal entry, increase the vanishing time of those
illegally crossing the border, and channel migrants to ports of entry. This will reduce the
demand for DoD personnel and assets at the location where the barriers are constructed
and allow the redeployment ofDoD personnel and assets to other high+raffic areas on the

border without barriers. In short, these barriers will allow DoD to provide support to
DHS more efficiently and effectively. In this respect, the contemplated construction
projects are force multipliers.

3.2019, Letter from Secretary ofDefense to Secretary ofthe Interior; see also
September 3, 2019, DOD Action Memo Entitled Military Construction Pursuant to 10 {lS.C .+
2808 ("Action Memo").2 The Secretary olDefense further directed the Secretary of the Army to
undertake such projects, including the transfer of administrative jurisdiction, as necessary. In

See September

accordance with that instruction, on September 4, 2019, the Acting Secretary ofthe Army Ryan
D. McCarthy (Army), applied for the withdrawal and transfer of administrative jurisdiction, on
an emergency basis, ofland along the southem border underlying five ofthose segments in order
to allow for the establishment of military installations, and construction of facilities related to

border security in these areas.3

Specifically, the Army has applied for the emergency withdrawal oflands underlying border
facility segments referred to as "San Diego Project 4" in San Diego County, Califomia, "Yuma
Project 3" and "Yuma Project 6," both in Yuma County, Arizona,a "El Paso Project 2" in Luna
and Hidalgo Counties, New Mexico, and "El Paso Project 8" in Hidalgo County, New Mexico.s
As previously stated, together these parcels encomp{rss approximately 559 acres ofFederal land
along the border. The Army's requested emergency wilhdrawals are more particularly described
in the attached applications. These segments overlap with a 1907 withdrawal by President
Theodore Roosevelt, in which he withdrew and set apart as a public reservation all public lands
within sixty feet of the international boundary in California, Arizona, and New Mexico to keep
those lands "free tiom obstruction as a protection against the smuggling ofgoods" between the

I agree, that l0 U.S.C. $ 2808 itself authorizes the Departrnent ofDefense
to acquire jurisdiction over the lands necessary to undertake the military construction projects. A withdrawal
transferring such jurisdiction is therefore unnecessary. Nevertheless, the Department ofthe Interior has processed
the Army's applications in accordance with the Army's requests and my statutory obligations under FLPMA.
3
As noted below, the Army applied for emergency withdrawals regarding seven total segrnents. However, this
memorandum addresses the Army's r€quest only as to five such segments. See footnote 5.
4
A portion ofYuma Project 6 is also in Imperial County, Califomia.
5 The Army has also requested an emergency withdrawal for lands underlying two additional segments: "San Diego
Project I l " in San Diego County, California and "El Cenro Project 9" in lmperial County, Califomia. I have not
yet made a decision regarding those two applications pending flrther information as to how the circumstances there
meet the statutory criteria described herein.
': The September 3 letter also asserts, and

2

U.S. and Mexico. See 35 Stat. 2136 (May 27,1907). This strip of land is known as the
"Roosevelt Reservation."
On September 4 and September 5,2019, I personally viewed each of these five segments via
helicopter, in motor vehicle or on foot. Throughout my personal inspection, I had the continual
opportunity to visit with Customs and Border Patrol officials, BLM law enforcement officials,
BLM land managers, and each respective State BLM director, along with the General from the
Army Corps of Engineers who is tasked with implementing this massive effort.

III.

EMERGENCYWITHDRAWAL

A.

ln General

FLPMA defines

a

"withdrawal" to mean:

withholding an area of Federal land from settlement, sale, location or entry, under
some or all ofthe general land laws, for the purpose of limiting activities under
those laws in order to maintain other public values in the area or reserving the
area for a particular public purpose or progam; or transferring jurisdiction over
an area ofFederal land, other lhan "property" govemed by the Federal Property
and Administrative Services Act, as amended (40 U.S.C. 472) from one
deparftnent, bureau or agency, to another departrnent, bureau, or agency.
43 U.S.C. $ l702O(emphasis added). FLPMA authorizes two t,?es of withdrawals:
"conventional" withdrawals under sections 204(c) and (d),43 U.S.C. $ 1714(c)-(d), and
"emergency" withdrawals under section 204(e), id. $ 1714(e). Conventional withdrawals are
discretionary and require compliance with certain procedural requirements, including (1)
Publication of a Notice in the Federa.l Register,6 (2) a minimum 90-day comment period,T (3) the
opportunity for the public to request a public meeting,8 and (4) preparation ofa "case fiIe,"
including reports and appropriate compliance with the National Environmental Policy Act
(NEPA), the Endangered Species Act (ESA), and other applicable laws.e
Emergency withdrawals under section 204(e),43 U.S.C. $ 1714(e), however, are not
discretionary. In particular, section 204(e) requires the Secretary to make an emergency
withdrawal "immediately" when he determines "that an emergency situation exists and that
extraordinary measures must be taken to preserve values that would otherwise be lost." 43
U.S.C. $ 1714(e);43 C.F.R. $ 2310.5. Emergency withdrawals cannot exceed tlree years and
must be limited in scope and duration to the emergency. Id
The fact that the withdrawal is non-discretionary once the determination is made impacts the
applicabitity of certain procedures and processes that govem discretionary actions. FLPMA
recognizes that compliance with procedural obligations otherwise applicable to conventional
643 u.s.c. g

lTra(bxl);43 c.F.R. g 2310.3-r(a),(b)

7

43 c.F.R.

8

43 c.F.R. gg 23r0.3-rOX2Xv);

e

See 43 C-F.R. $ 2310.3-2.

g 23 r 0.3-

l

(bX2)(iv).

(cXl).

3

withdrawals would frustrate the purpose of emergency withdrawals, given the immediacy of
their nature. For that reason, there is no requirement for publication of a Federal Register notice,
a public comment period, a public meeting, or the consent ofthe head ofanother agency to
withdraw lands under that agency's jurisdiction. ,See 43 U.S.C. $ 171a0)(2); $ 171a@); $
1714(l); see also Federal Land llithdrqwals; Amendment to Withdrawal Procedures, 46 Fed.
keg. 5794,5796 (lan. 19, 1981) (rejecting a suggestion to include in the withdrawal regulations
a provision allowing for public input prior to making an emergency withdrawal because it would
"defeat the purpose" of such a withdrawal). Similarly, none of the other process requirements
for conventional withdrawals in the regulations apply to emergency withdrawals. See 43 C.F.R.
g g 23 1 0.5 ; 23 I 0. 1 (a); 23 t0.1 -2(a); 23 I 0. 1 -3(e); 23 I 0.3.

ofthe emergency character ofthe requested withdrawal-and because it is mandatory
that the Secretary make such a withdrawal immediately--analysis under NEPA is not required.
State ofAlaska r. Carter,462 F. Supp. 1155 (D. Alaska 1978) (holding that an emergency
withdrawal does not require preparation of an environmental impact statement under NEPA
because such compliance would conflict with FLPMA's command that such withdrawal be made
"immediately"); see also Flint Ridge Dev. Co. v. Scenic Rivers Assoc.,426 U.5.776,788 (1976)
(where statute provided Department ofHousing and Urban Development only 30 days to act, no
NEPA compliance was required: "where clear and unavoidable conflict in statutory authority
exist, NEPA must give way"); Jamul Action Committee v. Chaudhuri,837 F.3d 958, 963-65 (9th
Cir. 2016) ("There is no question that it would be impossible for [the Nationat lndian Gaming
Commission] to prepare an [environmental impact statement under NEPA] in the ninety days
[from the time the tribe submits the proposed ordinance] it has to approve a gaming ordinance
[under the Indian Gaming Regulatory Act] ;'); Jones v. Gordon,7g2F.3d 821,825 (9th Cir.
1986) (following F'lint Ridge analysis to assume that it takes an agency at least 360 days to
Because

prepare an EIS); see also Public Land Policy and Mdnagement Act of 1975: Hearings on H.R.
5221 and H.R. 5622 Before the Subcomm. on Public Lands of the H. Comm. on Interior and
Insular Affairs,94th Cong. 252 (197 5) (Rep. Melcher of Montana addressing John R. McGuire,

Chief, Forest Service, Dept. of Agriculture, regarding withdrawals in general in a pre-FLPMA
bill: "above all, we seek not to prevent you from exercising prudent judgment quickly.... ");
Public Land Order No. 5662, Emergency Withdrawal of Los Padres National Forest for Casitas
Reservoir Watershed in Califomia,44 Fed. Reg. 29065 (May 16, 1979) (publication of Public
Land Order twelve days after notification by the House Interior and lnsular Affairs Committee of
the existence ofan emergency situation, and request that the Secretary immediately establish a
withdrawal).
For similar reasons, consultation under the Endangered Species Act (ESA) and National Historic
Preservation Act (I.{HPA) is not required. See National Ass'n of Home Builders v. Defs. of
Wildlife,551 U.S. 644 (2007) (ESA consultation covers only discretionary agency actions "and
does not attach to actions. . ..that an agency is required by statute to undertake once certain
specified triggering events have occurred."); 50 C.F.R. $ 402.03 ("Section 7 [ofthe ESA] and the
requirements ofthis part apply to all actions in which there is discretionary Federal involvement
or control"); Sac & Fox Nation v. Norton,240 F.3d 1250,1262-1263 (lOth Cir. 2001) (lack of
agency discretion obviates the need for consultation under the NHPA).
4

B.

An Emergency Situation Exists and Extraordinary Measures Must be Taken
to Preserve Values that Would Otherwise be Lost

Here, taking extraordinary measures in the form ofemergency withdrawals that transfers these
lands to the Army in order to facilitate construction of border barriers are necessary to preserve
values that would otherwise be lost. These values encompass border and national security
values, including law enforcement and humanitarian values, and also the natural and cultural
values most commonly associated with my land management responsibilities under FLPMA.
The impacts and threats to the non-resource values (humanitarian, national security, the rule of
law) from the increasing number ofillegal border crossings constitute an emergency that requires

immediate action. Separately and independently, the impacts and threats to resource values also
constitute an emergency that requires immediate action to preserve those values. Without the
grant ofthe requested emergency withdrawals, these values will be lost for each individual
application.

I

Transferring Jurisdiction to the Army Would Facilitate Construction
of Border Barriers to Reduce Illegal Border Crossings

Border barriers are effective at reducing illegal border crossings; not only do they protect U.S.
Customs and Border Patrol (CBP) agents, but they also assist the CBP in gaining and
maintaining operational control and support a safe and secure border community. Declaration of
Chief Jerry B. Martin, U.S. Border Patrol Strategic Planning and Analysis Directorate, U.S.
Customs and Border Protection, August 12,2019 (providing trafficking data and describing
effectiveness ofphysical barriers). For example, according to DHS, physical barriers prevent
incursions into communities, businesses, and other sensitive areas close to the border; reduce the
enforcement footprint and compress CPB operations; increase the time it takes for illegal border
crossers to disappear into the surrounding environment and evade apprehension; and provide a
force multiplier effect by increasing the ef[icacy and efficiency of DOD resources. September 3,
2019, DOD Action Memo Entitled Military Construction Pursuant to l0 U.SCl. $ 2808, Tab H,
Necessity of Border Barriers, Summary of Supporting Analysis, at p. 2. Moreover, as described
further below, n 2007 . CBP and DOI constructed vehicle barriers in much of OPCNM and
pedestrian barriers in the area of the Lukeville Port of Entry. The installation of both styles of
barrier in OPCNM significantly reduced illegal vehicle crossings into the United States, and, as a
result, the National Park Service was able to reopen OPCNM to the public in 2014. During my
visit to the border, CBP noted that where BLM has improved and increased public land access,
illegal drive-throughs have increased. In many areas, vehicles can drive around the end of the
existing vehicle barrier and quickly reach a road. For example, during my visit to the El Paso
Project 2 site in Luna County, New Mexico, CBP officials showed me that the area where the
vehicle barrier ends is met by a simple barbed wire fence, which is easily overcome by both
pedestrian and vehicle traffic. Local CBP and BLM personnel explained that the lack of a
significant barrier allows individuals to circumvent the vehicle barrier by cutting or driving
through the barbed wire directly into and through the Cedar Mountains Wildemess Study Area
located directly north ofthe Luna County site.

5

The Army identified several areas along the borders where installation ofphysical barriers would
assist them and the CBP; the segments included in these applications, as detailed below,
represent those both most feasible and that fulfill immediate strategic needs. The resulting
reduction in illegal border crossings will preserve the humanitarian, national security, and

environmental and natural resource values discussed below and prevent their loss.

2.

Illegal Border Crossings in the Areas Described in the Attached
Applications Impact National Security, Humanitarian, and Related
Values as well as Resource Values

a.

National Security, Humanitarian and Related Values

The President has found that a national emergency exists on the southem border. In
Proclamation 9844, the President found that:

[t]he current situation at the southem border presents a border security and
humanitarian crisis that threatens core national security interest and constitutes a
national emergency. The southern border is a major entry point for criminals.
gang members, and illicit narcotics. The problem of large-scale unla*ful
migration through the southem border is long-standing, and despite the executive
branch's exercise of existing statutory authority, the situation has worsened in
certain respects in recent years. In particular, recent years have seen sharp
increases in the number of family units entering and seeking entry to the United
States and an inability to provide detention space for many ofthese aliens while
their removal proceedings are pending. If not detained, offrcials have often
released such aliens into the country and have difficulty removing them from the
United States because the aliens fail to appear for hearings, do not comply with
orders of removal, or are otherwise difficult to locate. In response to the directive
in my April 4, 2018, memorandum and subsequent requests for support by the
Secretary of Flomeland Security, the DOD has provided support and resources to
the DHS at the soutlem border. Because ofthe gmvity ofthe current emergency
situation, it is necessary for the Armed Forces to provide additional support to
address the crisis.
The Presidential Proclamation firther states that the Secretary ofDefense, the Secretary ofthe
Interior, the Secretary of Homeland Security, and, subject to the discretion of the Secretary of
Defense, the Secretaries ofthe military departments, shall take all appropriate actions, consistent
with applicable law, to use or support the use ofthe authorities invoked, including, ifnecessary,
the transfer and acceptance ofjurisdiction over border lands.
On March 15,2019, the President vetoed ajoint resolution passed by Congress that would have
terminated the President's national emergency declaration. See Veto Message for H.J. Res. 46
(Mar. 15,2019). In his veto message, the President emphasized that recent increases in
apprehensions and drug seizures along the southem border as well changes in migration pattems
have strained border security personnel'1o the breaking point." The President reaffirmed that
6

the "situation on our border cannot be described as anlthing other than a national emergency,
and our Armed Forces are needed to help confront it."
The change in migration pattems toward families and unaccompanied children that DHS cannot
detain and quickly remove has incentivized more families to travel to the United States, leading

to a large-scale humanitarian crisis. See President's Proclamation; President's Veto Message;
Testimony of Kevin McAleenan, Acting Secretary of Homeland Security, Before the U.S. House
of Representatives Committee on Oversight and Reform (July 18, 2019). This fiscal year
thousands of families and unaccompanied children have attempted to enter the United States via
Mexico. See Southwest Border Migration FY 2019 Statistics, at
https://www.cbp.gov/newsroom/stats/sw-border-migration. Many of the individuals who
undertake this dangerous journey arrive with life{hreatening medical conditions. See Letter
from Secretary of Homeland Security Kirstjen M. Nielsen to the United States Senate and House
of Representatives (Mar. 28,2019). As a result, CBP is often required to perform rescue
missions, provide medical treatment, and other forms of humanitarian assistance instead of its
traditional border security responsibilities. See Letter from Secretary of Homeland Security
Kirstjen M. Nielsen to the United States Senate and House of Representatives (Mar. 28,2019);
Testimony of Secretary of Homeland Security Kirstjen M. Nielsen Before the U.S. House of
Representatives Committee on Homeland Security (Mar. 6,2019). The proposed barriers would
help reduce the incentives or "pull factors" that encourage more individuals to attempt to enter
the United States unlarfully, thereby reducing the strain on CBP's resources and mitigating the
humanitarian crisis at the border. Where constructed, border barriers establish a level of
deterrence and redirect those who contemplate making an illegal entry out ofthe immediate area.
This in tum provides CBP the opportunity to reallocate requisite resources to better address both
the humanitarian crisis and the border security mission.
Moreover, during my visit to the border, CBP agents explained that cartels often control the
areas where illegal crossings take place and require payment to the cartel before it will permit
them to cross the border. Construction of border barriers reduces tlese human smuggling
operations, and funnels these migrants to points of entry.
The DOD identified several specific border segrnents for immediate action based on their
respective locations, and some of these lie on Federal lands already under DOD jurisdiction, or
are available for transfer to the Army. Some are near to existing CBP installations, such as "San
Diego Project 4," which would extend an already-existing pedestrian barrier near Tijuana,
Mexico, "El Paso Project 2," which would replace an existing vehicle barrier with a pedestrian
barrier to be located near the Antelope Wells Port of Entry in New Mexico, and "Yuma Project
6," which would extend with primary and secondary pedestrian barriers adjacent to an already
existing barrier at the Andrade Port of Entry, at Yuma, Arizona. Not only are these segments
strategically importan! but they are, for the most part, land owned by the United States. Also, as
the Secretary of Defense has detennined, border barriers on these segments will reduce the
demand for DOD personnel and assets where the barriers are constructed ald allow the
redeployment of DOD personnel and assets to other national security priorities.

7

When I visited the border on September 4th and 5ft, 2019, DHS agents explained that areas
where the existing barrier ends must be manned 24 hours a day. There are some locations along
the southern border where existing natural conditions make barrier construction difficult.
Completing the barrier in the areas identified by DOD will allow DHS to focus human resources
on the fewer remaining open segments, thereby reducing the demands on our nation's military
and reducing illegal border crossings. In some locations, a primary and secondary border fence
will be installed, creating an enforcement zone between two rows of barriers along the southem
border and making patrols more manageable. The e{Ecacy of this system is apparent in Southem
Califomia where San Diego lies adjacent to the city of Tijuan4 Mexico. While the system of
using dual barriers may be effective, it is not continuous between these two major cities. At the
San Diego Project 4 site I observed a section of the border where only one barrier exists, and that
single barrier abruptly ends at the Otay Mountains Wildemess Area leaving a large swath of the
border without any infrastructure to prevent continued traflic through the Wildemess Area.
The Appendix includes details of all five locations and values for individual segmenls.

b.

Natural Resource Values

Likewise, the current situation at the border impacts natural and cultural resources. lndeed,
illegal border crossings, including the arrival of criminals and gang members, and the flow of
illegal drugs and pesticides threatens to prevent the use ofpublic lands for outdoor recreation and
human occupancy. For instance, in 2010, the BLM Arizona State Director chartered Operation
Reclaim Our Arizona Monuments (ROAM) to respond to an increase in illegal border impacts
specific to several National Conservation Lands units in the state: "Since its inception, the intent
ofthe initiative is to integrate all necessary resources to increase public safety and remedy
resource impacts affecting these units." Southem Arizona Project, 2016 Border Report (BLM,
2016), p. 2. The 2016 Border Report describes how, as the CBP has increased its security
presence at traditional border crossings at Nogales and Yuma, Arizon4 the unlawtrrl traffic has
been pushed further into remote areas of the public lands:
The [unlaw.fr,rl traffrcking ofhumans and narcotics] creates new, ad hoc roads and
trails, damages native vegetation and disturbs wildlife. Drug and human
smuggling also generates tons of garbage, including discarded personal items,
bicycles, tires and abandoned vehicles. Millions of pounds of trash and waste
along with damaged roads, structures, and fences have impacted Wilderness
areas, riparian habitat, and other back-country natural resources.
2016 Border Report, at p. l. See also Declaration of Chief Jerry B. Martin, U.S. Border Patrol
Strategic Planning and Analysis Directorate, U.S. Customs and Border Protection, August 12,
2019 (providing trafficking data and describing effectiveness of physical barriers).
Under Operation ROAM, targeted law enforcement surges deter illegal activity
and provide a window of opportunity for habitat restoration and mitigation
projects to be completed. The BLM relies on partners such as the [Borderland
Management Task Force or BMTF], State of Arizona, American Conservation
Experience and tribal communities to prioritize and implement these projects.
8

2016 Border Report, at p. 2. As demonstrated by the details provided in the 2016 Border Report,
unla*ful border crossings have direct negative impacts on the environment. The BLM has had
to take affirmative steps to protect natural resources fiom these harmful actions and mitigate the
harm to public lands, but those efforts are not sufficient. Additional border barriers would
protect public land resources and environmental values from the harmful effects of unlawful
border crossings.
Regarding other areas along the southem border, CBP explains that in the late 1990s and 2000s,
the Yuma and Tucson Sectors experienced large numbers ofillegal cross-border activity from
pedestrians and vehicles crossing into the OPCNM and parts ofthe Cabeza Prieta National
Wildlife Refuge (CPNWR). During this period, it was common for vehicles loaded with
narcotics to cross from Mexico into the U.S. and &ive through both OPCNM and CPNWR,
creating trails, destroying sensitive habitat, and causing fires. In addition, these illegal activities
put visitors to both the park and refuge at risk for harm fiom fleeing vehicles. Due to the high
numbers ofpedestrian and vehicle activities, the National Park Service (NPS) had to close
OPCNM to public access and use.
As noted above, in 2007, CBP and OPCNM constructed vehicle barriers in much of OPCNM
and pedestrian barriers in the area of the Lukeville Port of Entry. Due to the installation of both
styles of barrier in OPCNM, illegal vehicle crossings into the U.S. diminished significantly and
as a result, the NPS was able to reopen OPCNM to the public in 201 4. Today, visitor attendance
to OPCNM is at its highest levels. In addition, habitat and sensitive species have benefited from
the lack ofcross border activity. In fact, NPS has restored with native plants many ofthe trails
created by smugglers and illegal cross border vehicles.
CBP has also reported that the abandoned vehicles often catch fire. In CPNWR, for instance,
CBP reports that illegal vehicle crossings would often result in pursuits by CBP agents, vehicles
driving off roads into sensitive habitat or wilderness and becoming stuck, and vehicles catching
fire. As Congress does not fund CPNWR to remove stuck, bumed or abandoned vehicles, the
U.S. Fish and Wildlife Service (USFWS) had to use funds meant for other purposes to remove
abandoned and bumt vehicles liom the refuge. In addition, the process of physically removing
vehicles from the refuge often caused additional damage to habitat and wildemess. Since the
addition of the vehicle barrier at CPNWR, illegal crossings by vehicles have diminished.ro
When I visited the border, I heard fiom the BLM that Wilderness Areas near the border are being
degraded at an alarming rate. I saw one area (Otay Mountains Wilderness) that might no longer
meet the criteria for wildemess based on its current state. I saw fire retardant all along the
hillsides left by the agencies battling recent fires, started by smugglers and groups who crossed
the border illegally. I saw trails all throughout this Wilderness Area, created by these groups
over time. Illegal crossings in these areas continue to damage these lands, once "untrammeled
by man." The CBP informed me that in the San Diego Border Patrol Sector, where the Otay
Mesa Wildemess is located, the number of apprehensions has increased by more than 13,000
However, as described in the Appendix, illegal pedestrian crossings are still a significant issue
in the Refuge.
10

9

individuals from FYlS to FY19.r1 While the terrain in some of these Wildemess Areas is
rugged, the lack ofa barrier leaves the wilderness subject to traffic seeking to circumvent the
adjacent bollard fencing.
The attached Appendix includes more specific details regarding individual segments and the
impacts ofillegal border crossings on natural resource values at each requested witldrawal
location addressed herein.

An Emergency Situation Exists and Extraordinary Measures Must be
Taken

-

The current situation at the southem border and with respect to the segments of land described
in the attached applications -- constitutes an emergency situation requiring extraordinary
measures in order to preserve the values described above. As noted, the President has already
declared a national emergency. And the Secretary ofDefense, in invoking l0 U.S.C. $ 2808 and
directing the Secretary ofthe Army to undertake border barrier construction projects
expeditiously on these five segments, along with six others, has determined that such
construction is:
necessary to support the use of the armed forces in connection with the national
emergency. These projects will deter illegal entry, increase the vanishing time of
those illegally crossing the border, and channel migrants to ports of entry. They
will reduce the demand for DoD personnel and assets at location where the
barriers are constructed and allow the redeployment ofDoD personnel and assets
to other high-traffic areas on the border without barriers.

3,2019, Letter from Secretary ofDefense to Secretary ofthe Interior dated
September 3, 20191 see a/.so September 3,2019, DOD Action Memo Entitled Military
Construction Pursudnt to l0 U.S.C. $ 2808 ("Action Memo"). This determination was based in
part on Recommendations of the Chairman of the Joint Chiefs of Staff, which identified and
considered four key factors to prioritize segments for border barrier construction: (1) DHS's
prioritization ofprojects, (2) current migrant flows as measured by monthly apprehensions in
each Customs and Border Patrol (CBP) sector, (3) current deployment of military personnel and
support missions by CBP Sector, and (4) the type ofland upon which the proposed projects
would be undertaken. See Action Memo, Tabs H, J. Using that ranking system, with input from
DHS and the Office of the Under Secretary for Defense for Policy, these five segments were all
within the top 11 segments as priorities for military construction.r2
See September

Two examples illustrate the emergency nature ofthis situation. First, the CBP reports that the
sector where the El Paso Project 2 is planned in New Mexico has the second largest number of
apprehensions ofpersons illegally crossing the border ofany sector, and that this is noteworthy,
especially given that this area has sparse existing pedestrian fencing and rugged terrain. See
tt See qlso U.S. Border Pqtrol Soulhwest Border Apprehensions by Seclor Fiscal Year 2019, available at
rv w. c bp. gov,hervsroom/stats/sw-border-m igratior,Jusbo-sw-border-apprehensions
The Secretary ofDefense has directed the Secretary ofthe Army to expeditiously undertake all

https;,i r'w
12

Action Memo

l0

1l projects.

See

Action Memo, Tab H, at p. 4. These latter physical features combined with the close proximity
of Highway 81, contribute to particularly high "vanishing" rates ofpersons crossing illegally
avoiding apprehension. The remoteness ofthis area makes it particularly attractive to both drug
and people smugglers, but also quite dangerous. Id Therefore, DHS and DOD have determined
that it is critical to construct new primary and secondary pedestrian barriers at El Paso Project 8
to channel migrants to the existing Antelope Wells Point of Entry, both for the safety of the
migrants and of the CPB personnel, given the dangers of the rugged tenain. Id. DHS and DOD
have also determined that projects to improve border facilities in the El Paso sector, where DOD
has mobilized the highest percentage ofDOD assets to assist CPB, can best leverage these
military assets and contribute to the ripple effect where success in one sector can contribute to
the success of efforts in other border sectors. 1d.; see also Action Memo, Tab H, at p. 3
(discussing ripple effects). El Paso Project 2, which would replace existing vehicle barriers with
pedestrian barriers would provide readily-executable support of this effort at establishing more
effective operational control in the El Paso sector, and would reduce reliance on DOD-fumished
mobile surveillance camera sites. See Action Memo, Tab H., at p. 4.
The situation is similar in the Yuma sector in Arizona, where there are twice as many military as
DHS personnel mobilized, and apprehensions ofpersons attempting illegal crossings ofthe
border have more than doubled in the last year, with 3 I ,383 total in FY 2018, and 65,363 so far
in FY 2019. See Action Memo, Tab H., at p. 5. While the Yuma projects are either located on,
or near to the Barry M. Goldwater Range administered by the Departments of the Navy and the
Air Force, and border barrier projects located on the Range would impede the passage of
migrants onto a live-fire range and otherwise divert migrants to ports of entry, DHS has
previously asked for funding for border barriers adjacent to the Range, for similar reasons,
without success. Id Replacement of existing vehicle barriers with pedestrian barriers at the
Yuma Project 3 site, and construction of new primary and secondary pedestrian barriers at Yuma
Project 2 will allow DOD personnel to focus on unfenced areas on and near the Range, or,
should fewer DOD personnel be needed on the border because oftle efficacy ofthe barriers, to
tum to other high priority national defense missions. Id.atp.6.
These are only two examples of secton where immediate attention to security measures are
needed; other sectors are described in more detail in the Appendix and the Army's applications.

Indeed, in accordance with the direction from the Secretary ofDefense to "expeditiously"
undertake the border barrier construction projects, and immediately apply for and accept
administrative jurisdiction over lands necessary to undertake such projects, and proceed with
construction as soon as it has obtained administrative jurisdiction, the Army immediately
requested that I make emergency withdrawals transferring administrative jurisdiction for the
necessary lands underlying these five projects. And the Army intends to award construction
contracts soon after it has accepted administrative jurisdiction over the land and recorded it in its
property records as a military installation, beginning in November, 2019. See Sepember 3,
2019, Declaration of General Glenn Goddard, paragraph lO(b), 12. After those contacts are
awarded, the Army would begin preparatory work, such as geotechnical borings and clearing and
gnrbbing, at least 20 days after the contract award. Id. It would then begin actual construction.
Id Currently, the Army tentatively intends to issue requests for proposal for Yuma Project 3,

II

San Diego Project 4, El Paso Project 2, Yuma Project 6, and El Paso Project 8 by late November
2019, award contracts by mid-Decanber 2019, begin ground disturbing activities in January
2020 and begin substantial construction in February.

Taking all ofthese circumstances into account, I find that an emergency situation exists and that
extraordinary measures must be taken to preserve values that would otherwise be lost. ln making
that determination, I am aware that construction ofborder barriers can have adverse
environmental impacts, including impacts from construction on air quality, land use, soils, water,
vegetation, wildlife, and cultural resources.13 However, those impacts have generally been found
to be insignificant, including with respect to barriers in the areas at issue in the Army's
applications. 1d Indeed, those analyses also show that there will be long term beneficial
impacts - especially on wildlife and vegetation resources -- from such construction. Moreover,
many ofthe potential adverse impacts are short-term, resulting from construction itself.
Accordingly, I find that any potential adverse environmental impacts are negligible in
comparison to the emergency situation arising fiom the impacts of illegal border crossings
described above and in the Army's applications, and which I personally viewed on my visit to
these areas.

To address this emergency, extraordinary measures are necessary to transfer administrative
jurisdiction to the Department ofthe Army in order to facilitate construction ofborder barriers -and preserve the values discussed above.la

13

See, e.g, Final Environmental Stewardship Plan for the Replacement, Operation, and Maintenance ofTactical
Infiastructure, U.S. Border Patrol San Diego Sector, Imperial Beach and Bro1l,l1 Field Stations, California (June
2018); Final Environmental Stewardship Plan for the Replacement, Operation, and Maintenance ofTactical
lnllastructure, San Diego Sector Secondary Wall Replacement Project, U.S. Border Patrol San Diego Sector,
lmperial Beach Station and Chula Vista Station, Califomia (May 2019); Final Environmental Assessment for Border
Road and Fence; Construction and Repair, Tecate to Canyon City, San Diego County, California (October 1993);
Final Environmental Stewardship Plan for the Construction, Operation, and Maintenance ofTactical Infrastructure,
U.S Border Patrol Yuma Sector, Arizona and California (May 2008); Final Environmental Stewardship PIan for the
Construction, Operation, and Maintenance of Vehicle Fence and Related Tactical lnfi'astructure, U.S Border Patrol
Yuma Sector, wellton Station, Arizona (December 2008); Final Environmental Stewardship Plan for the
Construction, Operation, and Maintenance ofTactical Infiastructure, Segments fry-1 through HV-3 (August 2008)i
Final Supplemental Environmental Assessment for the Proposed lnstallation of2.62 Miles of Primary Fence Near
Calexico, Califomi4 Offrce ofBorder Patrol, EI Centro Sector, Califomia (August 2007); Final Environmental
Stewardship Plan for the Construction, Operation, and Maintenance ofTactical lnfrastructure, Segment HV4, U.S.
Border Patrol El Paso Sector, Lordsburg Station, New Mexico (August 2008); Programmatic Environmental
Assessment for Proposed Tactical lnfrastructue, Office of Border Patrol El Paso Sector Stations (October 2006);
Environmental Stewardship Plan for the Construction, Operation, and Maintenance ofTactical Infrastructure, U.S.
Border Patrol San Diego Sector (October 2008); Final Environmental Assessment for Proposed Construction,
Operation, and Maintenance ofTactical lnfrastructure, U.S. Border Patrol San Diego Sector (February 201 l);
Environmental Stewardship Plan for the Construction, Operation, and Maintenance ofTactical Infrastructure, U.S.
Border Patrol San Diego Sector, EI Cajon, Campo, and Boulevard Stations, Califomia (July 2008); Environmental
Stewardship Plan for the Construction, Operation, and Maintenance ofTactical Inllastructure, U.S. Border Patrol El
Centro Sector, Califomia (May 2008); Memorandum for the Record, Replacement of Primary Border Wall in
Calexico, El C€ntro Sector, California (February 2018).
ra In making this determination, I have also considered two developments occurring since the Army filed its
applications. First, the Supreme Court reversed a lower court stay enjoining enforcement of an interim final rule
issued by the Departments ofJustice and Homeland Security denying asylum to certain aliens who seek asylum in
the United States without having first sought protection in a third country through which they travelled. Barr v. Eqst

l2

C.

The Department's Past Interpretation of FLPMA 204(e)

In making the determination above, I recognize that in prior regulations and withdrawal
petitions/applications, the Department has chosen to limit the nature ofthe emergency and the
"values" to be protected in section 204(e) to natural resource and environmental values.
Certainly, as detailed herein and in the Army's applications, there are natural resource and
environmental values at risk that must be preserved or they will otherwise be lost. However, for
the reasons set forth below, I conclude that, absent specific insertion by Congress, the imposition
of such a limiting qualifier olthe term "values" would needlessly ftustrate the executive branch's
ability to immediately address extraordinary circumstances that could necessitate emergency
withdrawals to preserve public values that are intrinsically valuable, such as border and national
security. The term "values" is better understood to include national and border security,
humanitarian and other similar values that are presented by the emergency at the southem
border. Such an understanding of the term "values" is also more consistent with FLPMA.'5
The Department's withdrawal regulations were explicit as to their interpretation of the natwe of
the emergency and the values referenced until the Department amended the regulations in 2008.
Specifically, prior to 2008, the regulations explicitly provided that the Secretary "shall
immediately make a withdrawal" when he "determines. . ...that extraordinary measures need to be
taken to protect natural resources or resource values that wouJd otherwise be lost." 43 C.F.R. $
2310.5(a) (2007) (emphasis added). In defining a "resource use" (a term used in section 204(d)
of FLPMA regarding conventional withdrawals aggregating less than 5,000 acres), the
regulations state that such a use means a land use having as its primary objective the
preservation, conservation, enhancement or development of:

[]Any renewable or nonrenewable natural resource indigenous to a particular land
area, including, but not limited to, mineral, timber, forage, water, fish or wildlife
resources. or
[]Any resource value associated with a particular land area, including, but not
limited to, watershed, power, scenic, wildemess, clean a or recreational values.
The term does not include military or other govemmental activities requiring land
Bqv Sanctuory Coverazrr, 588 U.S. (2019). Second, on September 6, Mexico Foreign Secretary Marcelo
Ebrard announced that Mexican actions taken to curb migration had reduced the flow of migrants to its northem
border. The existence and deployment ofthese other tools to address the emergency at our southern border do€s not
change my determination, based on the Army's applications and the information described in this memorandum, that
illegal border crossings continue on a massive scale and bring extreme harm to our country, and, accordingly, that an
emergency situation exists and that gxtraordinary measures are necassary to prsserve the yalues discussed herein.
1s

My determination is consistent with decisions ofthe Supreme Court holding that an agency is permitted to change
its interpretation ofa statute if it ( I ) displays awar€ness that it is changing position; (2) believes the new policy is
better; (3) provides good reasons for the new policy, which, ifthe new policy rests upon factual findings lhat
contradict those which underlay its prior policy must include a reasoned explanation for disregarding facts and
circumstances that underlay or were engendered by the prior policy; and (4) shows that the new policy is permissible
under the statute. See Federal Communications Commission v. Fox Televisioa 556 U.S. 502,515 (2009\; Nat'l
Cable & Telecomms. Ass'nv. BrundX lnternet Servs., 545 U.S.967,98t (?005); Encino Motorcqrs, LLC y.
Naryrro, 136 S. Ct.2l17 ,2125 (2016\.

l3

sites only as an incidental means to achieving an end not related primarily to the
preservation, conservation, enhancement or development of natural resources or
resource values indigenous to or associated with a particular land area.

43 C.F.R. $ 2300.0-5. And based on those specific regulations, the Department has previously
denied as not properly concemed with the preservation of "natural values" or "resource values" a
request for emergency withdrawal on the part ofthe Department of the Navy, in order that the
public land that was the subject of its request for a longer-term legislative withdrawal would be
insulated from the operation of the mining and other public disposal laws for up to three years,
by which time, presumably, Congress would have acted on the Navy's legislative withdrawal
request. See Memorandum from the Associate Solicitor, Energy and Resources to the Director,
Bureau of Land Management, dated September 5, 1984. That memo, relying on the regulatlons
discussed above, concluded that the Navy's request did not meet the statutory criteri4 as
interpreted by those regulations then in effect.

In 2008, the Departrnent amended 2310.5(a) (but not 2300.0-5) to refer to the standard in
FLPMA for granting an emergency withdrawal instead of articulating it in the regulation;
accordingly, the "natural resources or resource values" language referenced above no longer
appears. See 73Fed.P.e9.74047 (Dec.5,2008). Thus, the regulation itselfno longer limits the
Deparftnent to an emergency related to natural resource values. I acknowledge, however, that
the 2008 rulemaking was narrowly tailored to address the unrelated question regarding the
constitutionality of an emergency withdrawal directed by certain House and Senate Committees
and did not articulate any intent to change the Department's interpretation ofthe nature ofan
emergency. 1d. Moreover, the premise ofthe 2008 rulemaking -- that lands can be protected
quickly using the segregation period that is initiatedby proposing a conventiona.l withdrawal -- is
arguably based on the assumption that the emergency relates only to resource values. See id; see
also73 Fed.Pteg.60212 (Oct. 10,2008) (notice of proposed rulemaking that became the 2008
final rule - and, following the same rationale, would have eliminated the emergency withdrawal
regulation altogether); 56 Fed. Reg. 59914 (Nov. 26, 1991) (similar proposed rule that was never
finalized). And, in places, the preambles to those rulemakings explicitly state that FLPMA
204(e)'s emergency is for the preservation ofnatural resource values. See, e.g.,73Fed.Reg.
74047 ("Section 204(e) provides that the Secretary of the Interior shall withdraw lands
immediately upon a determination...that an emergency exists and that extraordinary measures
need to be taken to protect natural resources or resource values that would otherwise be lost.");
56 Fed. Reg.59914 (similar). Finally, Secretaries of the Interior have exercised this authority on
seven prior occasions, each of which addressed preservation ofnatural or cultural resource
values by preventing impacts from these natural resoutce uses.16

15

See Public Land Order (PLO) No. 7773, Emergency Withdrawal ofPublic and National Forest System Lands;
Coconino and Mojave Counties; Arizon4 76 Fed. Reg. 124 (Jun. 28, 201 l) (withdrawing 1,010,776 acres to protect
the Grand Canyon Watershed from adverse effects of locatable mineral exploration and mining); PLO No. 7005,
Emergency Withdrawal of Public Mineral Estate within the Desert National Wildlife Refuge; Nevada, 58 Fed. Reg.
44049 (Oct.20, 1993) (withdrawing 769,543 acres for one year for the protection ofthe Refuge until the USFWS
can complete an environmental impact statement); PLO No. 6099, Emergency Withdrawal ofArcheological Sites,
Windy Gap Project, Grand County, Colorado, 46 Fed. Reg. 63047 (Dec. 30, l98l ) (withdrawing 679.46 acres for

14

Although I acknowledge the Department's prior interpretatiorl I believe the better interpretation
is that the "values" that form the basis ofthe emergency and which require immediate action to
preserve should not be so limited. FLPMA does not define the term 'Aalues." The dictionary
defines "value" (as relevant here) as something (such as a principle or quality) intrinsically
valuable or desirable, which is certainly not limited to environmental or natural resource values.
Most importanfly, however, limiting the interpretation to natural resource values is inconsistent
with FLPMA's definition of withdrawal. As noted above, a withdrawal is not just a means to
close lands to settlement, sale, location or entry; it is also a means to transfer jurisdiction ovet
lands to another agency. Many times, especially for transfers ofjurisdiction to the Deparknent
of Defense @OD) or its components, the purpose of that withdrawal is not to ptotect resource
values, but for some other purpose, such as national defense. An emergency withdrawal is just
one kind of withdrawal (which includes a transfer ofjurisdiction) - and the broad term'\,alues"
should not be limited when the context of the statute indicates that some types of withdrawals are
for the express purpose of protecting non-resource values.
The next question is what types of values qualifu. While I find it unnecessary to define the outer
limits of that term here, I believe that, at a minimum, they include the national and border
security issues detailed in the President's Proclamation; and specifically include preserving
values associated with preventing the kind oflarge-scale unlawful migration through the
southem border that not only allows for the entry of criminals, gang members, and drugsdraining the resources ofDHS and DOD that could be utilized to address other border or national
security issues--and also leads to the inability of the Federal govemment to provide detention
space for many of the aliens, including family units. This is especially true given the broad
dictionary definition of"values" and that FLPMA does not define the term.
Protection of national security values is also consistent with FLPMA's withdrawal provisions as
a whole, and Congress's clear awareness at the time of FLPMA's passage in 1976 that
withdrawals often transferred jurisdiction to DOD components for military or national security
purposes. Lawmakers acknowledged the long history of withdrawals of public land for military
purposes during congressional committee hearings leading up to the enactnent ofthe 1958 Engle
the protection ofarcheological sites for three years); PLO No. 5952, Emergency Withdrawal ofthe Bob Marshall,
Scapegoat, and Great Beax Wilderness Areas; Montan4 46 Fed. Reg. 30086 (Jun. 5, 1981) (withdrawing 1.5 million
acres in response to an emergency withdrawal resolution adopted by the House lnterior and lnsular Affairs
Cornmittee on May 21, l98l); PLO No. 5662, Emergency Withdrawal ofLos Padres National Forest for Casitas
Reservoir Watershed in Califomia, 44 Fed. Reg. 29065 (May 16, 1979) (withdrawal of69,305 acres for the
protection ofthe Casitas Reservoir Watershed from mining claim location which couldjeopardize the water supply
for the cities ofOjai and Ventur4 Califomia, in connection with the Ventura River Project ofthe Bureau of
Reclamation, following May 4, 1979 notification fiom the House Interior and Insular Affai6 Committee of the
existence ofan emergency situation, and a request to immediately withdmw the subject lands); PLO No. 5653,
Emergency Withdrawal of Certain Lands in Alaska, 43 Fed. Reg. 246 (Dec. 21, 1978) (withdrawal of I 10 million
acres ofland to protect their resource values, issued at ttre request ofthe House lnterior and lnsular Affairs
Committee, upon the Committee's determination ofthe existence ofan emergency situation with respect to the
national interest lands in Alaska); PLO No. 5617, Emergency Withdrawal of Critical Environmental Area; Utah,42
Fed. Reg. 85 (May 3, 1977) (withdrawirg26,921.24 acres in the Deep Creek Mountain area and reserying them for
the protection ofthe critical environmental area, specifically to protect certain enumemted mre species and resources
including Snake Valley cutthroat trout and its habitat, various species ofplants, as well as some 9000-year old
archaeological sites)15

Act, 43 U.S.C. $ 157. The Engle Act provides that withdrawals of more than 5000 acres for any
one defense project or facility of the DOD for defense purpose require an Act of Congress, and
therefore, withdrawals (including transfers of administrative jurisdiction) for defense purposes of
more than 5000 acres are among those types of withdrawals that exceed the Secretary's FLPMA
withdrawal authority. 43 U.S.C. $ 1714(i) Qisting among the exceptions to the Secretary's
withdrawal authority those "which can be made only by Act of Congress"). In 1956
deliberations regarding whether 5000 acres would be the appropriate acreage limit for Secretarial
action on military withdrawals, Chairman Engle noted for inclusion in the hearing record a
review of the Federal Register for a recent 2-year period that had revealed 67 applications by the
DOD for withdrawals ofpublic lands for defense purposes, commenting that "a very large
number of small withdrawals for radar sites and whatnot will be handled directly through the
Interior Departrnent without reference to congtessional committees unless the committee wants
to go into the subject matter," leaving the larger withdrawal proposals to Congress. Withdrawal
and Utilization of the Public Lands of the United States: Hearings on H.R. 10371, H.R. 10380,
H.R. 10377, H.R. 10367, and similar bills Before the H. Comm. on Interior and Insular Affairs,
84th Cong. 96-97 (1956). Indeed, such an interpretation is consistent with prior withdrawals including "Roosevelt Reservation" in particular -- which withdrew many of the lands at issue
here for border security purposes. For all these reasons, and while I acknowledge the
Department's contrary prior position, the "values" that can form the basis for an emergency
under FLPMA 204(e) are broad and include the preservation of values associated with public
pu4)oses such as national security, reduction in crimes such as drug and human trafficking, and
other public values associated with reducing illegal border crossings and their impact to society
in addition to those natural resource values that the Department has previously associated with
that term. Such an interpretation is consistent with FLPMA. In making this determination, I do
not question or disregard any factual determinations made under the prior interpretation or
policy.

D.

Compliance with Other Statutory and Regulatory Requirements

As noted above, an emergency withdrawal does not require compliance with the procedural
requirements applicable to conventional withdrawals under the regulations, nor does it require
analysis under NEPA or consultation under the ESA or NHPA. Moreover, to the extent
compliance with those or aly other laws could impede the expeditious construction of those
projects, they do not apply by the terms of 10 U.S.C $ 2808. See September 3,2019, letter from
the Secretary ofDefense to the Secretary ofthe Interior.

IV.

DECISIONBYTHESECRETARY

For the reasons set forth above and in the included attachments, I find that an emergency
situation exists and that extaordinary measures must be taken to preserve values that would
otherwise be lost. In accordance with section 204(e) of FLPMA, I therefore am approving the
emergency withdrawal applications discussed herein and immediately making the requested
emergency withdrawals. Public Land Orders will issue forthwith. I have further directed that all
Department of the Interior bureaus expeditiously review any necessary requests for access to the
lands described in those Orders for the purposes of border barrier construction.
16

X--------David L. Bemhardt
Secretary of the Interior

Attachments: Applications for Emergency Withdrawal

t7

APPENDIX
Segments Requested and their National Security/Humanitarian Values and Natural
Resource Values

1)

SAN DTEGO Project 4, San Diego County, California
Location

a)

A strip ofland of the uniform width of200 feet lying contiguous to and parallel with the
international border between the United States and Mexico, located in the County of San Diego,
State of California, and situate in the following described locations:
San Bemardino Meridian,

Califomia

T. l8 S., R. I 8.,
sec.34;
sec.35.
The areas described above aggregate approximately 44 acres of Federal lands in San Diego
County.

b)

ProposaVConstructionSchedule

Construction of new primary (bollard fence-not pedestrian) and secondary pedestrian barrier. A
Request for Proposal is tentatively scheduled to issue at the end ofNovember 2019, with a
contract award in mid-December. Ground-disturbing activities, including geotechnical borings
and clearing and grubbing, are tentatively scheduled to begin in January 2020, with actual
construction beginning in February.

c)

NationalSecurity/HumanitarianValues

According to U.S. Customs and Border Patrol (CBP), for FYl9, through July, there were over
51,000 apprehensions ofillegal enftants attempting to enter the United States between border
crossings in the San Diego Sector. Also for the same period, CBP seized nearly 2,500 pounds of
marijuana, over 1,200 pounds of cocaine, over 225 pounds ofheroin, over 2,800 pounds of
methamphetamine and almost 100 pounds offentanyl between border crossings in the sector.
Indeed, CBP has reported 31 call outs,45 rescues and 4 recoveries between FY 2017-2019 in the
Otay Mountains Wilderness Area. The San Diego Sector saw a drastic increase in assaults on
CBP Agents in FYl9, nearly doubling from FYl S to 149 assaults this year. The existing barrier
ends in a relatively populated area. The city of Tijuana has sprawled considerably since the
existing bollard fence was built and dwellings back up almost right to the existing barrier.
Construction ofnew primary (bollard fence-not pedestrian) and secondary pedestrian barrier, as
proposed for this project, would address these issues. BLM law enforcement told me they have
ongoing investigations of drug traffrcking occurring on public land. This activity will continue
unless the border barrier is extended to protect and restore this Wildemess Area.

Itt

d)

Natural Resource Values

The project lies adjacent to the Otay Mountain Wildemess Area managed by the Bureau of Land
Management (BLM). That Wildemess Are4 designated by Congress in 1999 in recognition of
its diversity of unique and sensitive plants, must be managed to preserve its wilderness character
and devoted to the public purposes of "recreational, scenic, scientific, educational, conservatioq
and historical use." See 16 U.S.C. $ 1133; Pub. L. No. 106-45 (Dec. 9, 1999). The Wildemess
area represents a unique ecosystem, home to twenty sensitive plant and animal species, including
the endangered quino checkerspot butterfly, the only known stand of Tecate cypress, as well as
the only known population ofthe Mexican flannel bush. CBP reports smugglers and foot guides
started fires within the Wildemess Area to create diversions in order for them to avoid
apprehension. Illegal border crossers create signal fires when they are in distress or when they
need to make their location known to search and rescue personnel. In 2019 in particular, seven

fires in the Wildemess Area bumed a total of more than 75 acres. And in 2018, two illegal aliens
pled guilty to charges related to their ignition of two signal fires in the area and a third suspect
was booked on similar charges for a separate fire. Indeed, Congress has found that illegal
immigration traffic, along with the rugged topography, "presents unique fire management
challenges for protecting lives and resources." 1d at $ 3.
Large quantities oftrash (discarded clothing, aluminum cans, water bottles, human waste, etc.)
can be found throughout the Wildemess Are4 particularly in and around "lay-up" spots where
illegal aliens and others crossing the border illegally sleep and wait until they are ready to
continue their northbound trek. Hiking through the Wildemess Area, specifically on the tops of
ridgelines and in the bottom of canyons, smugglers will creale hooches (shelters) made from
uprooted trees, broken branches and piled up rocks. Illegal aliens commonly lcl'tild hooches to
camouflage their sleeping locations in order to prevent being discovered by law enforcement
personnel. Currently there are still makeshift hideouts on BLM land.

I saw degradation of the Wildemess Area firsthand and heard about the
challenges BLM Law Enforcement and CBP agents experience every day. I saw fre retardant
left along the hills from the agencies battling a recent fire. Finally, I saw extreme route
On my visit to this site,

proliferation throughout the Wildemess Area.

All ofthese impacts degrade the wildemess character of the area - including opportunities for
recreation - which BLM is specifically obligated by law to maintain. Absent this action, these
wildemess values will be lost and destroyed.

2)

YUMA Project 3, Yuma County, Arizona

a)

Location

Strips of land ofthe uniform width of60 feet lying contiguous to and parallel to the intemational
border between the United States and Mexico, currently subject to Presidential Proclamation No.
758, 35 Stat.2136 (lr4ay 27, 1907),located inthe County of Yuma, State ofArizona, and situate
in the following described locations:

Gila-Salt River Meridian. Arizona
19

T.

14 S.,

R. 15 W.,

secs. 18 and 19;

SEI/4;

sec. 20,
sec.

2l;

sec.22, SW1/4;
sec.26, Sl/2.

T.

14 S.,

R. 16 W.,

sec.

6,El/2:

secs. 7

T.

15 S.,

thru 10, and

13

thru 15.

R. 11 W.,

3l

secs.

T. 15 S., R.

and 32.

12 W.,

secs. 1 9, 20 , 26

thtt

29 ,

3

5 and

3

6.

T. 15 S., R. 13 W.,
secs. 7 thru

T.

9,

14

thru 16, 23 ard 24.

15 S., R. 14 W.,

secs.

I

sec. 3,

and 2;

NEl/4;

sec. 12.

T. 16 S., R. l0 W.,
sec. 18, W1/2.

T. 16 S., R. 1l W.,
secs. 3 thru 6, and

l0 thru

12.

The areas described above aggregate approximately 228 acres of Federal lands in Yuma County.

Note: This application applies only to the 60'Roosevelt Reservation.rT
The Army has asked me to transfer administrative jurisdiction only over the 60-foot wide pubtic land corridor
along the United States side ofthe boundary with Mexico withdrawn by President Roosevelt 1907 for protection
against smuggling. When the CPNWR was later established, the Refuge excluded these lands. Thus, the requested
emergency withdrawal would not transferjurisdiction over any lands currently in the Refuge.
17

20

b)

ProposaVConstruction Schedule

Replacement of the existing vehicle barrier adjacent to the Cabeza Prieta National Wildlife
Refuge (CPNWR) with pedestrian barrier. A Request for Proposal is tentatively scheduled to
issue at the end of November 2019, with a contract award in mid-December. Ground-disturbing
activities, including geotechnical borings and clearing and grubbing, are tentatively scheduled to
begin in January 2020, with actual construction beginning in February.

c)

National Security/Humanitarian Values

Since the addition ofthe vehicle barrier at CPNWR, illegal crossings by vehicles have
diminished. Installation of pedestrian barrier will preserve t]is benefit while also reducing other
illegal cross border activities including human traffic through the refuge. CBP reports for FY 19,
through July 31,2019, apprehensions ofover 65,000 persons attempting illegal entry ofthe
United States between border crossings in the Yuma Sector. Also during the same period, CBP
seized over 3,000 pounds of marijuana, over 30 pounds ofheroin, over 900 pounds of
methamphetamine and almost 40 pounds of fentanyl between border crossings in this sector.

d) Natural Resource

Values

CPNWR is home to hundreds of species of mammals, reptiles, and plants whose presence is
necessary to maintain the ecological balance of the Refuge. Endangered species include Sonoran
pronghom and lesser long-nosed bats. Other species include the desert bighom sheep, desert
tortoises and many species oflizards, snakes, and toads. The Refuge is also a migratory stop for
many birds in spring and fall and other birds reside here year-round, including elf owls and Gila
woodpeckers. There are over 400 plant species including creosote bush, white bursage,
mesquite, palo verde, ironwood, ocotillo and an abundalce of cacti, including cholla, and
saguaro. Illegal cross-border activities continue to negatively affect species and habitat within
the refuge due to direct human interaction as well as habitat and refuge land degradation and
destruction caused by the creation of trail networks and deposition of trash. Prior to installation
of the vehicle barrier, illegal vehicle crossings into the CPNWR often resulted in CBP pursuit of
vehicles driving offroads into sensitive habitat or wildemess, where the vehicles would become
stuck, and frequently catch fire. The U.S. Fish and Wildlife Service ended up using funds
planned for other purposes to remove abandoned and bumt vehicles from the refuge. In addition,
the process ofphysically removing vehicles from the refuge often caused additional damages to
habitat and wildemess.

3)

YUMA Project

a)

6, Yuma County,

Arizona and Imperial County, California

Location

A strip ofland of the uniform width of270 feet lying contiguous to and parallel to the
intemational border between the United States and Mexico, located in the County of Imperial,
State of Califomia, and situate in the following described locations:
San Bemardino Meridian,

California

T. 16 S., R. 21 E.,
21

sec. 33, lots

13,14,19, and,20;

sec. 34.

Containing 49 acres
Subject to existing State sovereign land in the last natural bed of the Colorado River.

A strip of land ofthe uniform width of200 feet lying contiguous to and parallel to the
international border between the United States and Mexico, located in the County of YumA State
of Arizon4 and situate in the following described locations:
Gila-Salt River Meridian, Arizona
T. 8 S., R. 24 W.,
sec. 21;

sec.22,lot 4.
San Bemardino Meridian,

T.

Califomia

16 S., R. 21 E.,

sec.35.
Containing 12 acres

A strip ofland ofthe uniform width of200 feet, located in the County of Yum4
Arizon4 and situate in the following described locations:

State

of

Gila-Salt River Meridian, Arizona
T. 8 S., R. 24 W.,
sec. 28, lot 4, and lots 15

thru 18.

Containing 7 acres
Subject to existing State sovereign land in the last natural bed of the Colorado River.
The areas described above aggregate approximately 19 acres of Federal lands in Yuma County,
Arizona and Imperial County, Califomia.

b)

ProposaVConstruction schedule

Construction ofboth new primary and secondary pedestrian barriers. A Request for Proposal is
tentatively scheduled to issue at the end ofNovember 2019, with a contract award in midDecember. Ground-disturbing activities, including geotechnical borings and clearing and
gxubbing, are tentatively scheduled to begin in January 2020, with actual construction beginning
in February.

c)

NationalSecurity/HumanitarianValues
22

CBP reports for FYl9, through July, there were over 65,000 apprehensions ofillegal entrants
attempting to enter the United States between border crossings in the Yuma Sector. Also during
the same period, Border Patrol seized over 3,000 pounds of marijuana, over 30 pounds ofheroin,
over 900 pounds oflmethamphetamine, and almost 40 pounds of fentanyl between border
crossings in this sector.
Here, cartel members regularly infiltrate family groups to gain entry to the US. Groups are also
attempting to cross the Colorado River in this segment. What was once a natural barrier is no
longer discouraging illegal entry in this area. This means CPB must frequently conduct
dangerous rescues for those stranded in the fast current of this river. Ifsomeone is able to
successfully cross the river, they dress in a way to quickly blend in with the many held workers
nearby.

d)

Natural Resource Values

Federal property in the project area include lands managed by the Bureau of Indian Affairs and
Bureau of Reclamation. Protected and sensitive species of animals and plants that occur in this
area include: the Southwestem

Willow Flycatcher, Yellow-Billed Cuckoo, Yuma Ridgway's

Rail, Flat-Tailed Homed Lizard, Yuma Desert Fringe-Toed Lizard, Chuckwalla, Sand food, Blue
sandJily, Algodones sunflower, Dune spurge, Burrowing owl, and Loggerhead shrike.
Continued illegal cross border activities including human traffic through this area ofthe
Colorado River region has the potential for damage to endangered species and critical habitat, as
well as to other more common plants and animals. Illegal cross-border activity in this area
continues to negatively affect species and habitat within the Federal lands due to direct human
interaction as well as habitat and land degradation and destruction caused by the creation oftrails
and deposition of trash.
Salt Cedar grows along the river here and quickly catches fire. This can be calastrophic in a
region that can reach 120 degrees. During the visit to this site, I observed that vegetation had
grown tall along the river and signs of past bums were immediately apparent. BLM personnel

river and that BLM has frequently
needed to respond to these bums using a specialized firefighting boat to prevent the rapid spread
ofthe fires.
noted that

4)

fres such

as these may spread north across the

EL PASO Project 2, Luna and Hidalgo Counties, New Mexico
a) Location

A strip ofland ofthe uniform width of60 feet lying contiguous to and parallel with the
intemational border between the United States and Mexico, currently subject to Presidential
Proclamation No. 758, 35 Stat. 2136 (May 27,1907), located in the County of Luna, State of
New Mexico, and situate in the following described locations:
New Mexico Principal Meridian, New Mexico
T. 29 S., R. 11 W.,

Z'

secs. 16 thru | 8.

T.29

S.,

R. 12 W.,

secs. 13 thru 18.

T.29 S., R. 13 W.,
secs. 13 thru 16.

The area described aggregates 94.76 aqes.

A strip of land ofthe uniform width of60 feet lying contiguous to and parallel with the
intemational border between the United States and Mexico, currently subject to Presidential
Proclamation No. 758, 35 Stat. 2136 (May 27,1907), located in the County of Hidalgo, State of
New Mexico, and situate in the following described locations:
New Mexico Principal Meridian, New Mexico

T.34 S., R.

16 W.,

sec. 19;
sec. 20;
sec. 21, W. of the N. and S. centerline

of SWl/4.

T. 34 S., R. 17 W.,
sec. 20; E.

ofthe N. and S. centerline of SEI/4;

secs. 21 thru 24.

The area described aggregates 47.39 acres.

A strip of land of the uniform width of60 feet lying contiguous to and parallel with the
intemational border between the United States and Mexico, currently subject to Presidential
Proclamation No. 758, 35 Stat. 2136 (\rlay 27, 1907), located in the County of Hidalgo, State of
New Mexico, and situate in the following described locations:
New Mexico Principal Meridian, New Mexico

T.34

S.,

R.20 W.,

sec. 19;
sec. 20:
sec. 21, W. of the

N. and S. centerline of SWI/4.

T.34 S., R 21 W.,
sec.22,E. of the N. and S. centerline;

24

sec. 23

sec.24
The area described aggregates 34.08 acres.
The areas described above aggregate approximately 176.23 acres ofFederal lands in Luna and
Hidalgo counties.

b)

ProposaVConstruction Schedule

Replacement of existing vehicle barrier with pedestrian barrier. A Request for Proposal is
tentatively scheduled to issue at the end of November 2019, with a contract award in midDecember. Ground-disturbing activities, including geotechnical borings and clearing and
grubbing, are tentatively scheduled to begin in January 2020, with actual construction beginning
in February.

c)

NationalSecurity/HumanitarianValues

CBP reports that the El Paso Project 2 location is used as a conidor for illegal border crossings
and drug smuggling activities due to the remoteness of southem Hidalgo and Luna Counties.
According to CBP, for FYl9, through July, there were over 167,000 apprehensions of illegal
entrants attempting to enter the United States between border crossings in the El Paso Sector.
Also during the same period, the CBP seized over 10,000 pounds of marijuana, over 100 pounds
ofcocaine, and over 200 pounds of methamphetamine between border crossings in this sector.

This is rfte primary location for the Juarez and Chihuahua cartels to transport drugs and humans.
Anyone crossing illegally in this area must pay these cartels a significant sum or run the risk of
exposure to violence. During my visit, CBP explained that in some instances, the cartels would
fire weapons at individuals attempting to cross the border in this area without first having paid
the cartel. The lack of barriers sufficient to stop pedestrian traffic in this area may make the
location appealing to individuals seeking to cross the border on foot, especially children and
families. Between FY18 and FYl9, CBP reported the apprehension ofunaccompanied children
(between 0-17) has increased by 249% and the number of family unit apprehensions has
increased by 1510%. This area is also receiving the highest number of large groups ofasylum
seekers (1,000/week in December 2018) in a remote area that cannot support that high volume.
The El Paso Project 2 would address these issues through the replacement ofexisting vehicle
barrier with pedestrian barrier. The replacement work makes this project site-specific to the
identified lands.

d)

Natural Resource Values

CBP has identified Southem Hidalgo County as home to many bird species including state
species of concem like the Red-faced Warbler, Greater Pewee, Gould's Wild Turkey, Painted
Redstart, and the Olive Warbler. Potential threatened and endangered species in this border area
include eight species including the Mexican Grey Wolf, Northem Aplomado Falcon, the
southwestem willow flycatcher, and the American Peregrine Falcon. According to its Southem
Arizona Project 2016 Border Report, the BLM Field Offrces along the border experience
25

resource impacts from illegal border crossings, including unauthorized trails. trash and intrusion
on biological resources. Illegal crossings degrade watersheds and wildlife habitat through
di sturbance of soil, increasing soil erosion and destruction of vegetation. Warming fires can
escape to become wildland fires that threaten human life and property. Fighting these fires is

often more complex and costly due to safety concems. Environmental damage is prevalent and
requires extensive resources to remove litter, repair fences, restore biological resources, and
maintain roads. CBP reports that illegal crossings in these specific areas of the border have
resulted in impacts to habitat, plants and animals caused by the creation offoot trails and the
deposition oftrash, damaging or killing vegetation essential for food and habitat ofendangered
species and other animals. In addition, illegal vehicle crossings create vehicle trails, cause
damage to vegetation and habitat, and lead to fires from abandoned or stuck vehicles. This is
also a popular hunting area and BLM has attempted to expand access to these public lands.
However, opening BLM roads in this area has increased the number of illegal vehicle incursions
into the are4 making it unsafe for recreational and hunting use.

5)

EL PASO Project 8, Hidalgo County, New Mexico
a) Location

A strip ofland ofthe uniform width of60 feet lying contiguous to and parallel with the
intemational border between the United States and Mexico, currently subject to Presidential
Proclamation No. 758, 35 Stat. 2136 (May 27,1907), located in the County of Hidalgo, State of
New Mexico, and situate in the following described locations:
New Mexico Principal Meridian, New Mexico
T. 34 S., R. l8 W.,
secs. 19 thru 24.

The areas described above aggregate approximately 43.32 acres of Federal lands in Hidalgo
County.

b)

ProposaUConstruction Schedule

Construction of new primary and secondary pedestrian barriers. A Request for Proposal is
tentatively scheduled to issue at the end of November 2019, with a contract award in midDecember. Ground-disturbing activities, including geotechnical borings and clearing and
grubbing, are tentatively scheduled to begin in January 2020, with actual construction beginning
in February.

c)

NationalSecurity/[IumanitarianValues

CBP reports that the El Paso Project 8 location is used as a corridor for illegal border crossings
and drug smuggling activities due to the remoteness of southern Hidalgo County. According to
CBP. for FYl9, through July, there were over 167,000 apprehensions ofpersons attempting
26

illegal entry of the United States between border crossings in the El Paso Sector. Also during the
'10,000
pounds ol marijuan4 over 100 pounds of cocaine, and
same period, the CBP seized over
over 200 pounds of methamphetamine between border crossings in this sector. El Paso Project 8
would address these issues tfuough the construction of new primary and secondary pedestrian
barriers. This segment sees a high volume of drive{hroughs because all that exists currently is a
vehicle barrier that ends at the top ofa hill. Vehicles are able to drive up and around and
immediately get on a US road.

d)

Natural Resource Values

El Paso Project 8 would address the same kinds of natural resources issues as those present at the
El Paso Project 2 location. CBP has identihed Southem Hidalgo County as home to many bird
species including state species of concem like the Red-faced Warbler, Greater Pewee, Gould's
Wild Turkey, Painted Redstart, and the Olive Warbler. Potential threatened and endangered
species in this border area include eight species including the Mexican Grey Wolf, Northem
Aplomado Falcon, the southwestem willow flycatcher, and the American Peregrine Falcon.
According to its Southem Arizona Project 2016 Border Report, the BLM Field Offices along the
border experience resource impacts from illegal border crossings, including unauthorized trails,
trash and intrusion on biological resources. Illegal border crossings degrade watersheds and
wildlife habitat through disturbance ofsoil, increasing soil erosion and destruction ofvegetation.
Warming fires can escape to become wildland fires that threaten human life and property.
Fighting these fires is often more complex and costly due to safety concems. Environmental
damage is prevalent and requires extensive resources to remove litter, repair fences, restore
biological resources, and maintain roads. CBP reports that illegal crossings in these specific
areas of the border have resulted in impacts to habitat, plants and animals caused by the creation
offoot trails and the deposition of trash, damaging or killing vegetation essential for food and
habitat of endangered species and other animals. In addition, illegal vehicle crossings create
vehicle fiails, cause damage to vegetation and habitat, and lead to fires from abandoned or stuck
vehicles.

27