State Rejects U.S. Border Barrier Plan

LA JOLLA —  The California Coastal Commission on Wednesday rejected the Bush administration’s plan to fortify the U.S.-Mexico border, declaring that building fences and roads for border patrols in ecologically fragile areas violates the state’s coastal protection laws.

The decision sets the stage for another court fight between California and the federal government similar to previous lawsuits over offshore drilling in federal waters and the U.S. Navy dredging munitions-tainted sand and dumping it on beaches.

This time, though, those on both sides of the debate expect the fate of the $58-million project may ultimately be resolved by a presidential override, pushed through as part of the Bush administration’s war on terrorism.

The project extends from Otay Mesa, 14 miles inland, to the ocean. It involves two new fences parallel to the existing border fence and two roads running alongside for use by border agents. The federal government has completed the first nine miles of construction without state objections. But 3 1/2 miles of the final leg, as the project nears the ocean, has become the focus of debate because it would blaze a path through an ecological reserve and the sensitive coastal habitat of the Tijuana River Valley.

The Coastal Commission, along with other state and local officials and conservationists, has spent years trying to persuade Border Patrol officials that their plans can be altered without loss to national security.

The commission is concerned abut denuding the area of vegetation between the two fences and moving an estimated 442,000 dump-truck loads of dirt to fill canyons and wetlands to complete a straight, high-speed roadway and a second maintenance road.

A chief supporter of the project, Rep. Duncan Hunter (R-El Cajon) characterized the commission’s decision as nutty and said he hoped the president ultimately would override any state action.

He said that although the 14-mile fence project was approved in 1996 to repel drug traffickers and illegal immigrants, it has evolved into an important fortification against foreign terrorists sneaking across the border. “If you want to come into this country illegally,” Hunter told the commissioners, “you don’t fly into LAX. You come across the land border with Mexico.”

Coastal Commissioner Scott Peters, a San Diego city councilman, said: “National security is important, but it’s not relevant to this discussion. My concern is the amount of grading and filling that would be going on.”

Mary Nichols, a coastal commissioner and former California resources secretary, said federal officials have not seriously considered the alternatives proposed by the state that could fortify the border and protect the environment.

Most of the commission’s alternatives have been rejected by the Department of Homeland Security. That department now oversees the Border Patrol.

One federal agency, the U.S. Fish and Wildlife Service, however, broke ranks and announced at the meeting that it supported many of the commission’s alternatives that would protect rare succulents and avoid moving as much dirt to fill a major canyon that drains into the Tijuana River.

“We question if filling Smuggler’s Gulch is needed,” said Therese O’Rourke, an assistant field supervisor.

State parks officials are worried about despoiling Border Field State Park, a grassy area that celebrates the friendship of the two nations, with a set of fences that they say would make it look like a fortified encampment.

Tom Diaforli, director of the Department of Homeland Security’s national logistics center, told the commissioners that federal officials no longer planned to completely wall off the park with fences. But he said the new fences, the 150-foot-wide enforcement zone and roads between them are important measures to deter illegal entrants as well as ensure the safety of Border Patrol agents.

“Agents are routinely subjected to rocks and other objects thrown at them,” Diaforli said. Also, he said, three agents and a maintenance worker have died in vehicle accidents on the narrow switchback roads that now wind up and down the canyons. The straight, paved patrol road would eliminate such dangers, he said.

Diaforli said the Homeland Security department’s Bureau of Customs and Border Protection has determined that its project, as designed, is the least environmentally damaging. He said the bureau has tried to follow state coastal protections to the “maximum extent practicable.”

That language is important because it indicates the Border Patrol plans to move forward with its project despite the Coastal Commission’s objections. The commission is empowered under the federal Coastal Zone Management Act to review federal projects that affect coastal areas and coastal waters.

“It’s not a veto,” said Mark Delaplaine, the commission’s federal projects expert.

If the federal government determines it has made maximum, practical efforts to satisfy state concerns, it can move forward. Once that occurred, commission lawyers said, the next step would be to sue the federal government, as the commission has done successfully over oil drilling and the U.S. Navy’s plans to dredge sand contaminated with bullets and other ordnance to replenish beaches.

Any formal decision to file a lawsuit would come at a future meeting.

Some commission staff and fence supporters expect that President Bush may short-circuit a fight by exercising an override on the grounds of national security. The override, placed in the Coastal Zone Management Act in 1990, has never been used.