NOTE: The following is one of a series of case studies produced by the Union of Concerned Scientists' Scientific Integrity Program between 2004 and 2010 to document the abuses highlighted in our 2004 report, Scientific Integrity in Policy Making.
The southwest regional director of the U.S. Fish and Wildlife Service (FWS) pressured veteran wildlife refuge manager Ken Merritt to approve plans routing the border wall through the Lower Rio Grande Valley national wildlife refuge. Merritt stated that regional director Benjamin Tuggle asked him in 2007 to approve the initial survey for the wall and that when Merritt refused, Tuggle called that choice a “career-ending decision.”1 Merritt retired from FWS shortly thereafter and the Department of Homeland Security (DHS) eventually used its authority to waive numerous environmental laws in order to go ahead with the border wall project.
The borderlands between the United States and Mexico are beautiful, fragile desert landscapes, home to many threatened and endangered species; the Lower Rio Grande Valley refuge itself is home to the endangered ocelot2 and a tremendous diversity of plants, birds and butterflies.3
In April 2007, a consulting company hired by the DHS requested permission to survey the Lower Rio Grande for one section of a border wall system that would stretch for 470 miles along the U.S.-Mexico border. The National Environmental Policy Act (NEPA) and several laws governing the National Wildlife Refuge system require that a wildlife manager determine if a proposed federal action is detrimental to wildlife and an “appropriate” use of the refuge.4
Merritt said in an interview that FWS leaders should have known from the start that it would be impossible under existing law to find that an eighteen foot steel wall was an appropriate use for the refuge.5 Nonetheless, Merritt claims it was made clear to him that the fence was a priority for the Bush administration and that his managers wanted him to find a way to approve it.
Merritt, who had 31 years of wildlife management experience and oversaw 180,000 acres in three south Texas national wildlife refuges, considered the case in what he calls a thorough and objective manner. The law required him to base his determination on a specific set of specific criteria, within the context of the mission of a federal refuge to conserve wildlife and habitat.6 Merritt had knowledge of the border patrol’s activities in the refuges under his care and the potential impact of the border fence. He concluded that he would have to deny the request.
Merritt’s supervisors asked him to delay signing his finding, which would not take effect until it had his signature. The document remained in limbo for several months while various levels of FWS officials tried to figure out how to accommodate the border wall within existing law. Ironically, some officials may have been motivated by a concern that Congress might abolish the appropriate use laws that still protect many federal wild lands if the FWS refused to go along with DHS’s plans. Merritt disagreed, saying “If the law won’t stand up to the big guys, you don’t need it at all.”7
Merritt notes that ultimately an environmental impact statement was created for the section of wall going through his refuge, but that it was created on such an expedited schedule that it was “worthless” from a scientific point of view.
In the case of the Lower Rio Grand Valley refuge, DHS negotiated for weeks with FWS to create wildlife passages, which are openings in the wall big enough for small animals to slip through but not large enough for humans. In late 2007 “FWS was actually marking on a map where the holes would be,” Merritt recalls. But in January 2008, DHS struck a deal with Hidalgo County for a border wall design that included no wildlife passages at all. Furthermore, no EIS was done for the new design; FWS protested, but DHS did not respond.
In a similar case in 2007, a FWS manager at the Buenos Aires National Wildlife Refuge in southern Arizona first issued a document declaring that the fence in that region would have no significant impact on the refuge, but changed his mind after a public comment period and rescinded the decision. Seven weeks later DHS officials obtained the refuge by arranging a swap with FWS for other, unspecified resources. The refuge manager, talking about the land swap, told a reporter “Nobody did anything wrong except that we sort of hid the process, and I’m not sure why we did it that way.”8
“Our policies are based on law and there’s no way through them,” said Merritt. “There was nowhere to go with this thing.” But in April 2008 DHS Secretary Michael Chertoff cut off all discussion of environmental impacts by exercising his waiver authority under the Real ID Act of 2005—an immigration control and anti-terrorism law.9 The Real ID Act gives DHS sweeping authority to bypass “all laws” necessary to secure the border, which in this case included NEPA, the Endangered Species Act, the Clean Water Act and several others.10
In June 2008, the Supreme Court refused to hear a lawsuit brought by environmental groups on the constitutionality of Chertoff’s decisions.11 In addition, Rep. Raul Grijalva (D-AZ) introduced legislation to repeal the waiver authority although it did not come up for a vote in the 110th Congress.12
1. del Bosque, M. 2008. Against the Wall. The Texas Observer, June 27.
2. U.S. Fish and Wildlife Service. Regulatory profile: Ocelot (Leopardus pardalis).
3. U.S. Fish and Wildlife Service. Lower Rio Grande Valley National Wildlife Refuge.
4. U.S. Fish and Wildlife Service. 2006. FWS Policy 603 FW 1: Appropriate Refuge Uses. July 26.
5. UCS interview with Ken Merritt, former FWS project leader for the Lower Rio Grande wildlife refuge. August 2008.
6. Ibid .
8. Archibold, R. 2007. Border Fence Work Raises Environmental Concerns. New York Times, November 21.
9. Archibold, R. 2008. Government Issues Waiver for Fencing Along Border. New York Times, April 2.
10. OMB Watch. 2005. Bill Would Place Homeland Security Above All Law. February 7.
11. Stout, D. 2008. Justices Refuse Checks on Border Fence. New York Times, June 24.
12. Grijalva, R. and co-sponsors. HR 2593: The Borderlands Conservation and Security Act of 2007.