BANWR Incompatibility Determination

8/8/2019 BANWR Incompatibility Determination

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United States Department ofthe Interior

U.S. FISH AND WILDLIFE SERVICE BuenosAires National Wildlife Refuge

P.O. Box 109Sasabe/A2 85633

(520) 823-4251, (520) 823-4247 fax

September 27, 2007

Memorandum

To: Refuge Supervisor - AZ/NM

From: Refuge Manager

Subject: Sasabe, Arizona Pedestrian Fence - Appropriate Use Determination

As you know, the U.S. Customs and Border Protection (CBP) propose to construct 7 miles ofpedestrian fence at the international boundary with Mexico near Sasabe, Arizona.Approximately 0.8 miles of the fence would be placed on the Buenos Aires National WildlifeRefuge (refuge). The remaining 6.2 miles of the fence will be placed within an existing 60 footborder right-of-way known as the "Roosevelt easement."

1On August 31,2007, CBP formally

requested a right-of-way permit for the use of the 0.8 mile long by 60-foot wide area.

In response to the request, I reviewed several Service policies including the Appropriate UsesPolicy (603 FW 1). My review of the decision criteria found in that policy led me to initiallydetermine the use to be "appropriate." As such, a draft Compatibility Determination wasprepared and circulated for public review on September 5, 2007 (5 days after CBP's formalrequest). However, additional time has allowed a more thorough review of the project impacts,pertinent policy, and the collection of substantive public comments, some of which illuminateflawed analyses regarding how the use was initially evaluated. As a result of thesecircumstances, I am withdrawing the draft Compatibility Determination.

It is now clear that the barrier proposed by CBP is inconsistent with Service policy and islikely detrimental to the refuge's natural and cultural resources. For these reasons, theplacement of the barrier on the Buenos Aires National Wildlife Refuge is found to be NotAppropriate per Service policy 603 FW 1.

1The referenced Presidential Proclamation dated May 27, 1907 is known as the Roosevelt

Easement and reserves a 60-foot strip along the international boundary with Mexico in orderfor the United States to maintain the area "free from obstruction as a protection against thesmuggling of goods between the United States and Mexico." However, the proclamation onlyapplied to lands in public ownership at me time which meant any private lands owned fee titlewere exempt. There is a 0.8 mile stretch of international boundary within the Buenos Aires

NWR that was owned fee title by a private landowner in 1907, making that stretch exemptfrom the proclamation. That area is the western 0.8 miles of section 34, R8E, T22S.


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Description and Purpose of the Pedestrian Barrier

The barrier as proposed would be 15 feet high consisting of 5-inch diameter bollards with 4 inch

gaps in between (Attachment 1 - photograph). The fence would be placed 3 feet north of the

international boundary. Construction and maintenance of a parallel service road would be

restricted to a 60-foot zone adjacent to the border.

Securing the border is a high priority for the United States. This project is part of a larger

initiative mandated by Congress to place barriers in strategic locations along the border. Thesebarriers are intended to curtail smuggling, illegal immigration, and other activities related to

illegal border crossings. Many of the pedestrian barriers currently planned are near official Ports

of Entry such as the one located at Sasabe, Arizona. The policy and legal impetus driving the

construction of these barriers is well-documented in the project's Environmental Assessment(EA). The project is essentially mandated per the Secure Fence Act of 2006, which calls for 700

miles of fencing to be constructed on the U.S. - Mexico border.

The issues in the "Sasabe corridor" have been well-documented. The number of illegal border

crossings has fluctuated over recent years, but 100,000 - 300,000 illegal immigrants are

estimated to cross me area annually. This activity has resulted in dramatic environmentalimpacts in recent years. There have also been numerous deaths of illegal immigrants in the Altar

Valley and public safety has been eroded. CBP provides a more detailed justification for the

barrier in the EA.

The Service understands and fully supports the need to address illegal activity at the border. The

logic driving the various infrastructure projects is also understandable and the refuge has

consistently supported CBP on many initiatives including temporary Border Patrol camps,rescue beacons, surveillance towers, aircraft fueling facilities, temporary vehicle barriers, and

much more. Each of these projects has undergone various levels of compliance and has been

found to be consistent with Service policies. However, the currently proposed pedestrian barrier

is inconsistent with Service policy and adversely impacts several species of wildlife found on

the refuge, including an endangered species.

Is the Barrier Consistent with Service Policy?

Generally speaking, man-made barriers that dissect natural areas are not considered to be

beneficial for wildlife or their habitats. Because the pedestrian barrier will consist of bollards

with 4-inch gaps between the posts, the impact to most small animals will be negligible. Impacts

to plants will also be minimal, as seeds and other plant materials will move through the 4-inchgaps by wind or small animals. However, me movement of larger animals such as deer, javalina,

coyotes, bobcats, etc. will be restricted. The EA prepared by CBP and the Biological Opinion

prepared by the Service during ESA consultation both acknowledge the barrier will restrict the

movement of several species of wildlife,

The National Wildlife Refuge System Improvement Act (Public Law 105-57) directs us tomaintain the "biological integrity, diversity, and environmental health of the National Wildlife


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Refuge System. Policy implementing this mandate is 601 FW 3. Interestingly, language found in

the policy on refuge compatibility (603 FW 2) refers to this mandate and states:

Uses -we reasonably may anticipate to conflict with pursuing this directive to maintain

the ecological integrity of the System are contrary to fulfilling the National Wildlife

Refuge System mission and are therefore not compatible. Fragmentation of the National

Wildlife Refuge System's wildlife habitats is a direct threat to the integrity of the National

Wildlife Refuge System, both today and in the decades ahead. Uses that we reasonably

may anticipate to reduce the Quality or quantity or fragment habitats on a national

wildlife refuge will not be compatible. (603 FW2.5A)

The conclusion that fragmenting habitat adversely affects ecological integrity is supported

overwhelmingly in the literature. For example. Brown and Gibson (1983) point out that dispersal

is a basic ecological process and that natural selection favors individuals that move some

distance from their natal site. They go on to state "a more distant location is always likely to be

more favorable than the exact birthplace, in part because intra-specific competition between

parent and offspring and among siblings is reduced, and in part because the environment, and

hence the quality of the natal site, is always changing." Vaughan (1978) goes even further andstates "the ability to disperse is necessary for the survival of a species." "The pressures exerted

by reproduction and the necessity for the spacing of individuals create a tendency of populations

to occupy ever-increasing areas, to colonize unoccupied localities, and to repopulate areas where

they were previously extirpated." "The ability of a population to expand into new areas depends

on its innate dispersal ability, on the breadth of environmental conditions that it can tolerate, and

on the presence of barriers." Robert Fischman, in his recent book titled The National Wildlife

Refuges, Coordinating a Conservation System through Law, states ".... the new Refuge System

policy prohibiting uses that fragment habitat binds the Service to strict application of the

compatibility criterion and the biological integrity mandate."

Given the discussion above, it is clear the Service cannot consider the construction of apedestrian barrier on the refuge as an "appropriate use" per policy 603 FW 1.1 lA(3)(c) which

states: "if the proposed use conflicts with an applicable Executive Order or Department or

Service policy, the use is not appropriate." The barrier would be in direct conflict with the

Service's policy titled Biological Integrity, Diversity, and Environmental Health (601 FW 3).

Regardless, construction of the proposed pedestrian barrier would also fail to meet the

"appropriate use standard" found at 603 FW 1.1 lA(3)(e) which states: "if the proposed use,

either itself or in combination with other uses or activities, conflicts with a refuge goal,

objective, or management strategy, the use is generally not appropriate." The Buenos Aires

National Wildlife Refuge was established under the authority of the Endangered Species Act and

its purpose is to conserve endangered species. It is therefore contrary to many of ourmanagement strategies to allow any use of the refuge within our jurisdiction that would

"adversely affect" an endangered species. For example, the refuge's Comprehensive

Conservation Plan (CCP) outlines eight broad goals for the refuge, the first being "restore,

conserve, and manage the natural abundance and diversity of wildlife and habitat utilizing

strategies that focus on environmental and biological integrity." Furthermore, the CCP states in

section 3.3 that


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management actions taken on the refuge will adhere to Service regulations to ensure that

endangered species are not adversely impacted.

The pedestrian barrier's effect on the jaguar (Panthera onca) is an example that illustrates theproject's conflict with refuge goals related to endangered species. The Service's Biological

Opinion (BO) concludes that the construction of the pedestrian fence will adversely affect the

jaguar Past and recent citings indicate that jaguars have used the areas within and adjacent tothe Altar Valley (Hatten et al. 2002, Brown and Lopez Gonzalez 2001, Hofmieister 1986). The

Service's BO for this project states that fragmentation of jaguar habitat in northern Sonora and

Arizona has had a negative effect on breeding and foraging, as well as movement corridors. The

entire BO should be reviewed to gain a fall understanding of the Jaguar's current and potential

status within the U.S. However, it is clear that the placement of the barrier would conflict with

the refuge's stated management goals.

Studies also indicate the barrier will restrict the movement of cactus ferruginous pygmy-owls

(Glaucidium brasilianum cactorum) which is a species of concern for the refuge and one that is

actively managed for and dependent on dispersal from Mexico. The northernmost extent of this

bird's range is in the extreme south-central portion of Arizona, with the Altar Valley and the

Tohono O'odam Reservation being two of the most important areas for pygmy-owls in the U.S.(Corman and Wise-Gervails 2005). Flesch (2003) studied the birds in northern Sonora and

found the area immediately south of the refuge near Sasabe, Sonora to be an important source

population for dispersal north into suitable habitats. A barrier 15 feet high would restrict themovement of pygmy-owls. Flesch and Steidel (2007) found that pygmy-owls typically fly at a

height of 10-11 feet, with a maximum flight height of only 16.4 feet. The barrier's adverse

affects to pygmy-owls is in further conflict with refuge goals and objectives, as the long-term

protection of this species is a stated strategy in the CCP.

The refuge is also concerned with potential impacts to the Arivaca Creek Management Unit

should smuggling traffic to the east of the barrier escalate. The riparian habitat in Arivaca Creek

is extremely valuable for migratory birds and other wildlife. These habitats are becoming

increasingly rare in the southwestern United States. Corman and Wise-Gervails (2005) state that"....although originally widespread along lowland perennial drainages in otherwise arid

landscapes of southern Arizona.... lush riparian woodlands have declined dramatically since

European colonization." "Most examples of this community have been destroyed or heavily

altered by human activities." "Most remaining stands are relatively small, isolated, and

intermittently distributed." Currently, the Arivaca Creek within the refuge is a relatively healthy

riparian system. Management actions adversely impacting this area would also be inconsistent

with stated objectives in the refuge's CCP.

Will the Barrier Affect Cultural Resources on the Refuge?

Appropriateness policy also deals with a proposed use's impact to cultural resources found on

the refuge. Specifically, 603 FW 1.1 lA(3)(i) states; "Does the use contribute to the public'sunderstanding and appreciation of the refuge's natural or cultural resources, or is the usebeneficial to the refuge's natural or cultural resources?^ "If not, we will generally not further

consider the use," The EA prepared by CBP identified several culturally significant sites within

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the proposed project area. One of the sites is located at the refuge's 0.8 mile stretch. Section 4.9.2

of the EA acknowledges that the pedestrian barrier will affect this cultural site.

The Historic Properties Treatment Plan for the project refers to the site as AZ DD:15:(ASM) and

describes it as follows:

AZ DD:10:15(ASM), also known as both Garcia Ranch and Gustavo Ranch, representsthe remains of a border ranching operation. The site is a complex of historic buildings

including remnants of adobe buildings, a concrete-lined cistern or privy, a stonefoundation, a possible well, and several scatters of glass, pottery, metal artifacts, and

trash. The location of the building coincides with a site by me name of Garcia Ranch

plotted on the USGS Sasabe 7.5' topographic quadrangle. Border Patrol agents in the area

refer to the site as Gustavo Ranch. Based on the topographic map it is evident that thebuilding was already in existence in the 1950s. It does not appear on the 1888 GLO plat

map. Amethyst glass and solder seam cans present on the ground surface indicate that the

site was used prior to the 1940s.

The structures straddle the border, and were likely associated with the cattle trade in the

early twentieth century. A newer ranch, also by the name of Garcia Ranch, is located justnortheast of this site. At least two other ranches labeled as Garcia Ranch appear on the

1888 General Land Office plat map for Township 22 South, Range 8 East, and the 1921

map for Township 22 South, Range 7 East. After the abandonment of AZDD: 10:15(ASM), it is possible that the ranch was relocated to the newer site to the

northeast.

Furthermore, there are indications that the Garcia Ranch may have functioned as a Port-

of-Entry prior to the construction of the customs house in Sasabe. The description of the

current Port-of-Entry refers to a location approximately two miles east of the present

location as the former border crossing. The original port was composed of three tents, and

then later an adobe structure was built. A road labeled "From Altar/To Tucson" appears

on the 1888 GLO plat for Township 22 South, Range 8 East that crosses through thepresent location of AZ DD:10:I5(ASM). However, the ranch itself was not plotted as early

as 1888.

This site is also considered an important crossroads between traditional O'odhamcommunities by elders of the Tohono O'odham tribe; it represents part of the Tohono

O'odham cultural landscape for the Altar and Baboquivari Valleys. Information from

Tohono O'odham elders in Mexico and conversations with the late Eva Wilbur Cruz

indicate that this ranch, along with Aguirre Ranch to the north (present headquarters of theBuenos Aires National Wildlife Refuge) were stopover points on a series of trails

extending from the communities of Pozo Verde and Many Dogs in Mexico, and Buenos

Aires village sites located on the Tohono O'odham Nation to the west, to Tohono

O'odham villages located on Arivaca Creek and on San Luis Creek to the northeast (PeterSteere 2007).


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The consultant that conducted the review recommended the site be considered eligible for the

National Register of Historic Places under Criterion A for its relevance to the border cattle

industry, the Tohono O'odham cultural landscape, and its possible association with the history of

the U.S. Customs Service; and under Criterion D for its potential to yield information important

to the history of the region. Given these circumstances, it would be difficult find the placement

of a pedestrian barrier at or near the site to be appropriate considering Service policy 603 FW

l.HA(3)(i).

Conclusion

The issuance of a right-of-way permit to CBP for the construction of a pedestrian barrier, as

proposed, would not be consistent with Service policies applicable to the management of Buenos

Aires National Wildlife Refuge. For the following reasons:

The barrier would fragment habitat on the refuge, thereby adversely affecting the

ecological integrity of the refuge's natural resources. This would be inconsistent with

Service policies found in 601 FW 3 and 603 FW 1.1 lA(3)(c).

The barrier would adversely affect endangered species (jaguar), migratory birds

(pygmy-owls), and important habitats (Arivaca Creek) on the refuge, thereby conflicting

with stated management goals for the refuge found in the Comprehensive Management

Plan. This would be inconsistent with Service policy 603 FW 1.1 lA(3)(e).

The barrier would impact a significant cultural site found on the refuge in conflict with

Service policy 603 FW l.UA(3)(i).

This prevents the Service from finding the proposed use "appropriate" on the refuge and we are

therefore compelled to deny CBP's request for the right-of-way permit.

Attachments

1. Photograph of Proposed Pedestrian Barrier

2. Appropriate Use Determination Form 3-2319

3. CBP's Request for ROW

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References Cited

Brown, E. and Lopez Gonzalez, C.A,, 2001. Borderland Jaguars: Tigres de la Frontera. Univ, of

Utah Press.

Brown, J.H., and A.C. Gibson. 1983. Biogeography. The C.V. Mosby Company.

Corman, T.E., and C. Wise-GervaUs (eds.). 2005. Arizona Breeding Bird Atlas. Univ. of New

Mexico Press.

Fischman, Robert L. 2003. The National Wildlife Refuges, Coordinating a Conservation System

through Law. Island Press.

Flesch, A., 2003. Distribution, Abundance, and Habitat of Cactus Ferruginous Pygmy-owls in

Sonora, Mexico. Thesis, University of Arizona.

Flesch, A. and R. Steidel, 2007. Association Between Roadways and Cactus

Ferruginous Pygmy-owls in Northern Sonora, Mexico, Final Report for the Ariz. Dept

of Transportation.

Hatten, J.R., A. Averill-Murray, and W.E. Van Pelt. 2002. Characterizing and mapping potential

jaguar habitat in Arizona. Nongame and Endangered Wildlife Program Technical Report 203,

Arizona Game and Fish Department, Phoenix, Arizona.

Northland Research, Inc. 2007. Historic Properties Treatment Plan for Six Archaeological Sites

(AZ

DD:10:11[ASM];AZDD:10:12[ASM];AZDD:10:13[ASM];AZDD:10:14[ASM];AZD:10;15[AS

M];

NRI FIELD SITE 1) Located Along the U.S.-Mexico Border Near Sasabe, Pima CO., Arizona.

Public Law 105-57. National Wildlife Refiige System Improvement Act of

1997. 16 USC 668dd.

U.S. Customs and Border Protection (CBP). 2004. Final Environmental Assessment for

temporary vehicle barriers, Tucson, Nogales, and Sonoita Stations, Santa Cruz and Pima

Counties, Arizona. U.S. Customs and Border Protection, Washington D.C..

U.S. Customs and Border Protection (CBP). 2007. Final Environmental Assessment, Pedestrian

Fence Near Sasabe, Arizona. U.S. Customs and Border Protection, Washington, D.C.

USFWS. 2000. Policy Manual 603 FW 2. Compatibility (NWRS).

USFWS. 2001. Policy Manual 601 FW 3. Biological Integrity, Diversity, and Environmental

Health (NWRS).

USFWS. 2003. Buenos Aires National Wildlife Refuge Comprehensive Conservation

Plan. USFWS. 2006. Policy Manual 603 FW 1. Appropriate Refuge Uses (NWRS).

USFWS. 2007. Biological Opinion for Construction of Pedestrian Fencing: Jaguar, Lesser long-

nosed bat and Keamey's bluestar. Ref. 22410-2007-F-0416.

Vaughan, T.A. 1978. Mammalogy. Saunders College Publishing. Philadelphia.


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Attachment I. Photograph of Pedestrian Barrier Being Constructed Near Sasabe, Arizona


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FINDING OF APPROPRIATENESS OP A REFUGE USE

Refuge Name:Buenos Aires National Wildlife RefugeUse: Right-of-Way Permit to Construct Pedestrian Barrier on International BorderThis form is not required for wildlife-dependent recreational uses, take regulated by the State, or usesalready described in a refuge CCP or step-down management plan approved after October 9,1997.Decision Criteria: YES NO

(a) Do we have jurisdiction over the use?

(b) Does the use comply with applicable laws and regulations (Federal, State, tribal, andlocal)?

(c) Is the use consistent with applicable Executive orders and Department and Servicepolicies?

(d) Is the use consistent with public safety?

(e) Is the use consistent with goals and objectives in an approved management plan orother document?

(f) Has an eariier documented analysis not denied the use or is this the first time the usehas been proposed?

(g) Is the use manageable within available budget and staff?

(h) Will this be manageable in the future within existing resources?

(i) Does the use contribute to the public's understanding and appreciation of the refuge'snatural or cultural resources, or is the use beneficial to the refuge's natural or culturalresources?

Q) Can the use be accommodated without impairing existing wildlife-dependentrecreational uses or reducing the potential to provide quality (see section 1.60,603 FW 1,for description), compatible, wildlife-dependent recreation into the future?

Where we do not have jurisdiction over the use ("no" to (a)), there is no need to evaluate it further as we

cannot control the use- Uses that are illegal, inconsistent with existing policy, or unsafe ("no" to (b), (c), or(d)) may not be found appropriate. If the answer is "no" to any of the other questions above, we will

generally not allow the use.

If indicated, the refuge manager has consulted with State fish and wildlife agencies. Yes No __When the refuge manager finds the use appropriate based on sound professional judgment, the refuge

manager must justify the use in writing on an attached sheet and obtain the refuge supervisor's

concurrence.Based on an overall assessment of these factors, my summary conclusion is that the proposed use is:

Not Appropriate _ _ Appropriate ____

If found to be Not Appropriate, the refuge supervisor does not need to sign concurrence if the use is a new

use. If an existing use is found Not Appropriate outside the CCP process, the refuge supervisor must signconcurrence. If found to be Appropriate, the refuge supervisor must sign concurrence.

Refuge Supervisor__________________________ Date:_____________A compatibility determination to required before the usemay be allowed.

Refuge Manager. Date: Sect 27, 2007

FWS Form 3-2319

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Documents

BANWR Incompatibility Determination