Unbuilding a bridge to the twenty-first century: the Coast Guard, common sense, the law, and sustainable development.

• Author: Costa, Paul

1. INTRODUCTION

   In the figurative sense, a bridge is supposed to be a symbol of unification, creating a metaphorical connection where none existed previously. Materially, a bridge is supposed to be a structure of unification, creating a physical connection where none existed previously. In these regards, the La Linda Bridge is highly unusual--rather than creating a connection, it is creating a divide.

   The La Linda Bridge is a 381-foot, one-lane bridge spanning the Rio Grande between Mexico and the State of Texas.(1) On the material level, the La Linda Bridge no longer provides a physical connection between the United States and Mexico because it is closed to traffic. On the metaphorical level, it has become a symbol of division. Depending on one's point of view, the La Linda Bridge is either a gateway to a land of unparalleled beauty, an unreasonable obstruction to navigation, a lucrative corridor for illegal drug traffic, an essential building block in future economic development, or a financial liability.(2) The bridge has created division among federal agencies, local landowners, national governments, environmentalists, and business owners, while highlighting the lack of connection between law, common sense, and good policy.

   In 1997, the United States Customs Service ordered the La Linda Bridge closed because it believed the bridge was being used to smuggle illegal drugs from Mexico.(3) Because it was no longer in use, the United States Coast Guard declared the La Linda Bridge an "unreasonable obstruction to navigation" and ordered that the bridge be removed.(4)

   The National Parks Conservation Association (NPCA), a non-profit environmental group, owns the U.S. half of the bridge and opposes its destruction. Joined by the National Park Service and local economic interests, NPCA wants to see the La Linda Bridge play a key role in future plans to develop eco-tourism in the area. Nearby Big Bend National Park in Texas and two newly established natural reserves in Mexico provide a wealth of natural, cultural, and archaeological wonders, but there is little local infrastructure in Mexico or Texas to support or entice visitors to the area. Political solutions have thus far eluded bridge advocates. Where once there was a bridge, now there is a great divide.

   Part II of this Comment provides the factual background on the La Linda Bridge. Part III argues that the Coast Guard does not have the statutory authority to order the removal of the bridge because it lacks jurisdiction over this stretch of the Rio Grande. Part IV proposes that, even if the Coast Guard does have jurisdiction, this case is not one in which that exercise of power is reasonable. Part V argues that the Congress that empowered the Coast Guard to remove obstacles to navigation did not intend such power to be used in a situation such as this. Part VI outlines the consequences of removing the bridge and argues that such removal is the wrong decision as a matter of policy.

2. THE BRIDGE

   Much to the frustration of the Dow Chemical Company, the Texas stretch of the Rio Grande between Presidio and Del Rio was without a bridge in 1963. Dow operated a fluorspar mining operation along this stretch of the river near Heath Canyon in Brewster County, Texas. Dow's subsidiary in Mexico, La Dominicia, S.A. de C.V., had been importing processed fluorspar from Mexico into the United States. The Rio Grande is very shallow and narrow at this point. Since 1958, trucks had been driving over a concrete slab placed on the riverbed by Dow. However, when the river level was too high to ford for most of the summer of 1960, the company concluded that it needed to build a bridge to continue its operations.(5) Dow solicited Congress for permission, and on July 10, 1963, Congress authorized the construction of a bridge near Heath Crossing, Texas.(6)

   Construction of the La Linda Bridge was completed on September 7, 1964.(7) Dow designed the bridge to withstand the weight of heavy ore trucks crossing on a daily basis, and the thirty-six-year-old bridge can still accommodate more than one million vehicles per year.(8)

   The La Linda Bridge is located in rural Brewster County, Texas. Spanish explorers called the region "el despoblado" (i.e., "the uninhabited land").(9) Brewster County itself is a desert landscape that is mammoth in land area but sparsely populated. The county encompasses 16,040 square kilometers, yet contains only 9,039 residents.(10) Standing at mile 765.5(11) of the Rio Grande, at the end of Highway 2627 and just to the east of Big Bend National Park, the La Linda Bridge is a one-lane bridge connecting Brewster County with the rural Mexican state of Coahuila.(12) There are no other bridges over the Rio Grande for over one hundred miles in both directions.(13)

   Dow sold the La Linda Bridge to E. I. du Pont de Nemours and Company (Dupont) in 1971, which also used it to import fluorspar until March of 1991.(14) In 1986, Dupont donated fifteen acres of riverfront land, including the U.S. half of the bridge, to the National Parks and Conservation Association (NPCA).(15) By acquiring the land, NPCA hoped to enable boaters to use the land as a public river access point along the Rio Grande. Subsequently, NPCA entered into a memorandum of understanding with Big Bend National Park, enabling park officials to manage and utilize the land as if it were part of the national park--which is only five miles away. Boaters never used NPCA's land because the riverbank was too steep. In practice, boaters would drive across the La Linda Bridge, park their cars in Mexico, and "put in" on the Mexican riverbank.(16) However, Park Service employees identified a more suitable river access point in the United States on neighboring property adjacent to NPCA's land. Coincidentally, that neighboring plot of land is owned by Andy Kurie, a former Dow and Dupont employee.(17) Hoping to obtain the optimal river access point, NPCA made efforts to conduct a land swap with Mr. Kurie--his land for theirs--but the parties never reached an agreement.(18)

   The nearest town on the Mexican side, La Linda, is a tiny community of about fifty people.(19) Before Dupont left the area, La Linda was a thriving company town. It was "well maintained, clean, safe, landscaped with beautiful trees and with good distribution of utilities: power, water, sewer, and telephone."(20) After Dupont ceased its operations, the town deteriorated badly. Today, "the town is vandalized, ransacked, a junkyard[;] the trees are dead, there is no power, water, or working sewer. Only one telephone is maintained."(21) The surrounding Mexican desert lands are owned mostly by large private landowners.(22)

   Bridge-crossing traffic at La Linda was extremely active until late 1990. For example, local businesses used the bridge to transport fluorspar into the United States from Mexico. However, commercial activity began to diminish after 1990.(23) Nonetheless, noncommercial use of the bridge continued. Some church groups exported food and clothing to the poor in Mexico.(24) In addition, biologists and park rangers used the La Linda Bridge to cross the border and carry out research and natural resources management activities.(25)

   The landscape on the Mexican side is endowed with breath taking scenery, abundant wildlife, beautiful desert plants, and archeological treasures. Recognizing the importance of preserving these areas for future generations, President Carlos Salinas de Gotari of the Republic of Mexico created two new Protected Natural Areas for the region in 1994: the Maderas del Carmen and the Canon de Santa Elena.(26)

   In August 1996, the U.S. Customs Service notified Production Minerals, a local business using the La Linda Bridge, that Customs would be closing the La Linda Bridge to crossing traffic in the future.(27) Eight months later, Customs sent another letter expressing deep concern about "documented accounts of illicit smuggling activity" and repeated its intent to close the bridge permanently.(28) Customs explained that the Mexican government had been informed of and had agreed with the decision to close the La Linda Bridge.(29)

   It was not until the following spring that Customs notified a very surprised NPCA that it intended to close the La Linda Bridge on July 31, 1997.(30) In its two-page letter, Customs explained that all parties who had previously been using the bridge now must cross at an official port of entry. In addition, Customs advised NPCA that it would soon be contacted by the U.S. Coast Guard with some very bad news: because the bridge would no longer be utilized as a means of transportation, the bridge would be considered abandoned. Consequently, the Coast Guard might require that NPCA remove the bridge in accordance with Coast Guard regulations.(31)

   The next day, the Coast Guard letter arrived at NPCA, stating, "[d]ue to the fact that that bridge will no longer be used for the convenience of land transportation, this bridge is now considered an unreasonable obstruction to navigation and cannot be tolerated."(32) Citing 33 U.S.C. section 502(a)(33) as its statutory authority, the Coast Guard directed NPCA to remove the portion of the bridge on the United States side of the border within ninety days of its closure.(34)

   NPCA faced a difficult dilemma. As the owner of at least half of the La Linda Bridge, it was responsible for a very expensive removal process that likely would run into the hundreds of thousands of dollars. However, as a non-profit organization dedicated to improving and conserving the national parks, using a sizeable portion of its funds to remove a useful bridge seemed like a waste of money. Even worse, destroying the bridge seemed like a bad idea for the future of the area near Big Bend National Park in Texas, the developing Mexican reserves just across the Rio Grande in Mexico, and the local Mexican communities like La Linda.(35) Closing the bridge would sever the connection between...