Confusion reigns in New Mexico's militarized border zone

A cattleguard leading into the new military base along the New Mexico border with Mexico. On the right is a sign warning in English and Spanish: 'Restricted Area: This Department of Defense Property has been declared a restricted area by authority of the commander.' (Photo by Patrick Lohmann / Source NM)
Late last week, acting United States Attorney for New Mexico Ryan Ellison dismissed misdemeanor charges his office had previously brought against at least three people accused of illegally entering a newly created military zone across New Mexico's southern border.
Ellison explained the turnabout in a filing in which he said the arrested people had been found in an area his office thought was part of the new National Defense Area. It wasn't. As a result, three people arrested in recent weeks won't face newly created criminal charges for trespassing on a military base, punishable by up to a year in jail.
The dropped charges point to the ongoing confusion the new 400-square-mile military zone has created across branches of government and the courts since the U.S. Interior Department transferred the land to the Army in April.
'It is concerning that even the Acting United States Attorney is confused by the boundaries of this new National Defense Area,' a spokesperson for U.S. Sen. Martin Heinrich (D-NM) said in an emailed statement Thursday after Source New Mexico alerted his office to the dismissals. Heinrich has criticized the new NDA and called on the Defense Department to explain what it means for recreators and others.
On April 15, Defense Secretary Pete Hegseth and Interior Secretary Doug Burgum announced the transfer of land from the Bureau of Land Management to the military, effectively making the 180-mile border New Mexico shares with Mexico into an extended military base tied to Fort Huachuca in Arizona.
Along with increasing Army patrols and empowering the 'military [to] take a more direct role in securing our southern border,' as President Donald Trump said, creating the zone also enabled federal prosecutors to impose misdemeanor charges on those caught in the new National Defense Area.
Confusion about where that area falls exists not just among federal agencies tasked with enforcing the NDA, but also among residents who live, work and attend school along the border, including ranchers with BLM cattle leases and dual citizens who cross the border daily.
Source NM spent the weekend in the area and talked with residents who described whiplash from a transfer, seemingly overnight, of federal public lands into an extended military base.
The land includes parcels of private property surrounded by federal lands; the Diocese of El Paso, which owns nearby pilgrimage site Mount Cristo Rey; and the State of New Mexico, which has miles of trust land.
The land also traverses the Continental Divide Trail, and hosts both hikers on multi-state sojourns and hunters hoping to nab a rare Mearns quail, among heartier fare that hide among the creosote dotting the borderlands separating New Mexico from Mexico.
Recently, the Defense Department issued a statement telling hikers and hunters they were prohibited from entering the NDA. That incensed Angel Peña, director of Nuestra Tierra Conservation Project, a Las Cruces-based nonprofit that tries to help marginalized communities experience and conserve public lands.
'You're really now affecting livelihoods,' Peña told Source New Mexico during a drive Memorial Day Weekend along the northern edge of the NDA. 'You're affecting dinner on the table. You're affecting recreation. You're affecting the traditional uses of this land that help families make memories and tell stories and grow ever closer.'
Between April 15 and May 29, the federal government charged more than 550 people with unauthorized entry into the new National Defense Area, according to a review of federal records.
Federal prosecutors dropped charges for three of them based on the errant arrests dropped May 22, per Ellison's filings. According to court records, Ellison's office learned 'on or about May 15' that portions of the border area 'previously understood as encompassed' by the newly created New Mexico National Defense Area 'were not, in fact, transferred to the jurisdiction of the Army.'
The dismissed cases come amid ongoing legal challenges, with federal public defenders contesting the charges on a variety of fronts. Two weeks ago, a federal judge dismissed more than 100 charges against the defendants, largely because he was not convinced those arrested knew they were entering a restricted area.
The circumstances of the recent dismissals regarding errant arrests are not clear. AUSA spokesperson Tessa Duberry declined to comment on where the defendants were arrested, saying the office can't comment beyond what was filed publicly.
She also declined to say how many total cases the office has dismissed on those grounds or would dismiss, saying compiling that information would impose a 'significant burden' on staff.
Duberry referred comment about arrests to the Army, which told Source in a statement Friday morning that it would not speculate on charges that are awaiting adjudication,' said Joint Task Force Southern Border spokesperson Jordan Beagle. Beagle also noted that only the Border Patrol makes arrests, though the Army will temporarily detain people to hand over to the Border Patrol.
'The Joint Task Force Southern Border remains laser focused on our mission to achieve 100% operational control of the border, in this case maintaining security within the National Defense Areas,' he said, 'which includes detection, temporary detainment, and apprehension of those who trespass within the National Defense Areas.'
The Border Patrol did not respond to a request for comment from Source on Thursday.
According to court filings, two of the three people feds dropped charges againt were arrested April 26 about 'four miles east of the Santa Teresa Port of Entry.' Outside of the 60-foot buffer zone along the border, that's roughly a mile from Mount Cristo Rey and other privately owned land. Source's calls to the Diocese this week were not returned.
The third arrest occurred April 27, according to court filings, 'about eight miles west of the Santa Teresa Port of Entry.'
Federal judge dismisses trespass charges against migrants caught in NM military zone
All three criminal complaints note, as part of the justification for charges, that signs were posted in English and Spanish that 'this is a restricted area and that unauthorized entry is prohibited.'
The impact of those dismissals on prosecutors' cases remains unclear. Even though prosecutors dismissed the trio's charges for unauthorized NDA entry, each appears to still be held in detention on related misdemeanors, including charges like 'illegal entry by an alien' into the United States, 'illegal entry without inspection' or entering military property, according to court records.
Amanda Skinner, assistant federal public defender, declined to comment on how many of her office's clients might have been affected by the dismissals, or whether she is expecting there to be any more.
Heinrich, through his spokesperson, said he remains concerned about what the military takeover of the New Mexico border will mean for due process, for citizens and non-citizens alike.
'The Trump Administration is bypassing due process for individuals who either intentionally or unintentionally enter this newly restricted area, including U.S. citizens who may be stopped and detained by U.S. Army soldiers for trespassing on an unmarked military base,' his spokesperson said.
One group affected by the NDA — ranchers — has apparently reached a slightly uneasy, informal arrangement with the Army, according to ranchers along the border and the New Mexico Cattlegrowers Association.
In the last two weeks, Army and Border Patrol officials have collected the names, photographs, phone numbers, license plates and other details of ranchers who enter the NDA to round up their livestock or check on water tanks, ranchers told Source New Mexico.
The collection is an effort, they said, to make sure the Army does not mistake ranchers, who often carry firearms, for those who might be trespassing on a military base.
'Everybody around here in this part of the country is armed,' said Nancy Clopton, a longtime Hachita rancher with 80 square miles of leased pasture in and around the NDA. 'I don't want to be drug out of my pickup and then, you know, 'Oh, she's armed.''
The agreement allows ranchers to drive along access roads and county roads criss-crossing the NDA. Each time, they drive over cattleguards with new signs on either side that begin with, in English and Spanish: 'Restricted Area: This Department of Defense Property has been declared a restricted area by authority of the commander.'
About a dozen such signs are posted on cattleguards off Highway 9 between Sunland Park and Hachita, according to Source's count Sunday. Those are the same signs prosecutors use to justify criminal charges against the 550 defendants facing the unauthorized entry charges so far.
In response to questions from Source, Luis Soriano, Heinrich's spokesperson, noted that Ellison and Hegseth have both publicly said there will be 'no exceptions' for criminal trespassing in the area, and so Heinrich doesn't consider an 'informal, handshake deal sufficient to ensure the safety' of ranchers, sportsmen, hikers or others.
'For decades, ranchers and hunters alike have been accustomed to carrying firearms on what were their public lands until the transfer to the Department of Defense on April 15th,' Soriano said in a statement. 'That history, combined with the complete lack of clarity from the Administration, is a recipe for a very dangerous situation for our local residents, Army soldiers and Border Patrol agents.'
Beagle, with the Army, told Source in a statement to Friday that the army is continuing to work on a formal 'memorandum of understanding' with various groups to 'support the interests of the local community and the military mission within the New Mexico National Defense Area (NDA).'
'The MOU process for commercial and recreational activities, such as hunting, mining, and ranching, is complex,' he said 'and necessitates careful coordination with multiple organizations to ensure that proposed activities do not compromise public safety and border security operations.'
Beagle also said the Army would release more information to the community as it becomes available. He also noted the land order that enabled the transfer was 'subject to valid existing rights,' so he said the private 'property owners' with land adjacent to the NDA would not be affected. But he did not immediately respond to a request for comment about how that applies to ranchers who lease, not own, land in the area.
Bronson Corn, president of the NM Cattlegrowers Association, defended the arrangement in an interview with Source on Thursday.
He disagrees with the idea that ranchers might be skirting the law, saying, albeit informal, the agreement allows ranchers to keep their cattle alive and maintain their leases with the BLM, while also allowing the Army to harden the border.
'They have not had any conflicts with the military when it comes to being able to continue on with their day-to-day operations,' he said. 'There is some concern, there's no doubt about it, that they can't get to certain areas of their ranch due to the fact of that militarized zone.'
In addition to concerns about firearms, Clopton said she is concerned an influx of army personnel, potentially from out-of-state, won't be careful to close cattle gates behind them, which is a long-standing gripe she and other ranchers have with the Border Patrol. But she is withholding judgment, for now.
'We'll see how it works out,' she said. 'It depends on the individuals on the ground, those individual soldiers, how they treat us, how we see them. It's an experiment.'
Did border patrol or military officials detain or question you inside or outside of the new National Defense area? Reach out to reporter Patrick Lohmann at PLohmann@SourceNM.com or securely via Signal at PLohmann.61.

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