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

I. 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.

II. 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 those two areas and discourage binational research, cooperation, and development related to the parks.(36) Ironically, closing the bridge only inconveniences illegal traffic because determined drug smugglers will still drive through the river,(37) while legal traffic, which poses the least danger--tourists, park enthusiasts, and local merchants who will not drive through the river because it is illegal--is hurt the most. Thus, destroying the La Linda Bridge is inconsistent with NCPA's goal of preserving the environment and enhancing the parks.(38)

NPCA views the La Linda Bridge as an integral building block in its quest to bring sustainable eco-tourism to Brewster County and the Mexican state of Coahuila. The existing bridge at Heath Canyon already provides a reliable nexus between Big Bend National Park and the protected Mexican reserves. NPCA believes that removing it would be a major setback to any future plans to bring more dollars and conservation efforts to the area. In addition, NPCA sees the bridge as essential for cross-cultural exchange points for National Park Service operations, cooperative eco-system management, as well as good-neighbor relations with Mexico.(39)

The U.S. Department of State sent a diplomatic note to the Mexican embassy announcing U.S. intentions to close the La Linda Bridge because of significant documented illegal smuggling in recent years.(40) The Government of Mexico did not object to the closing or removal of the bridge; rather, it agreed that the bridge closure would improve border-crossing management.(41)

NPCA immediately began to seek a cooperative resolution with law enforcement, park officials, and local interests. NPCA lobbied to leave the bridge open, but it had little success. NPCA met with the superintendent of Big Bend National Park, the Brewster County Sheriff, U.S. Border Patrol, and U.S. Customs on May 16, 1997.(42) Although NPCA was unable to convince Customs that the bridge should remain open, the group consensus, including Customs, was that the bridge should not be demolished.(43) Nonetheless, the Coast Guard refused to rescind its order to remove the bridge.(44)

The U.S. Department of State referred the La Linda Bridge issue to the Inter-agency Working Group for study and review. Following several months of deliberations, the Working Group recommended suspending the order to remove the bridge.(45) In addition, the Mexican government--reversing its earlier position--weighed in by diplomatic note and requested that the American half of the bridge not be destroyed.(46) Subsequently, the Coast Guard granted an extension until June 30, 2002 in order that NPCA might develop a proposal for the future use of the bridge.(47)

The Coast Guard official responsible for issuing the order has said that the order to remove the bridge will not be lifted until all responsible law enforcement agencies in the United States and Mexico agree to reopen the bridge with an appropriate level of customs, security services, and border inspection facilities.(48) In the meantime, the State Department ordered NPCA to erect barriers that prevent vehicular or pedestrian traffic from moving across the bridge, to inspect the barriers every nine months, and to provide written reports to the State Department every six months on the progress of proposals for future sustainable development in the area.(49) NPCA has erected those barriers, and is currently seeking the cooperation of U.S. and Mexican officials to reopen the bridge.(50)

III. THE COAST GUARD AND NAVIGABLE WATERS AS A MATTER OF LAW

The most immediate dilemma facing NPCA is the Coast Guard's order to remove the La Linda Bridge. The bridge closure is a major obstacle to environmental and economic cooperation between the United States and Mexico.(51) Bridge removal, however, would be catastrophic. Significant development in cooperative conservation or economic growth requires a bridge over the Rio Grande near the contiguous park resources.(52) If the La Linda Bridge were removed, political and economic hurdles would make it nearly impossible to build another bridge in the area.(53)

Acting under its broad statutory authority to regulate the navigable waters of the United States,(54) the Coast Guard has ordered the removal of the La Linda Bridge, but it appears that the Coast Guard has overstepped its authority. Citing section 18 of the Rivers and Harbors Appropriation Act of 1899 (Rivers and Harbors Act or Act),(55) the Coast Guard claimed the La Linda Bridge was "an unreasonable obstruction to navigation" and, therefore, must be removed.(56) However, the Coast Guard's jurisdiction is limited to the navigable waters of the United States.(57) Therefore, unless the Rio Grande is "a navigable water of the United States" as a matter of law, the Coast Guard has no jurisdiction and cannot order NPCA to remove the La Linda Bridge.(58)

For more than a century, the federal courts have slowly developed and refined the definition of "navigable waters." This line of jurisprudence finds its origins in The Daniel Ball,(59) a case in which the United States Supreme Court held that, for Commerce Clause purposes, non-tidal bodies of water are navigable if they Ware used, or are susceptible of being used.... as highways for commerce ... in the customary modes of trade and travel on water."(60) The Daniel Ball Court found that the Grand River was navigable because it could support steamboat traffic.(61) This remained the controlling definition of "navigable waters" for the next thirty years.(62) During this period, the Court focused on a river's actual or potential use for commerce and refused to find that a waterway is navigable when "its use for any purposes of transportation has been and is exceptional, and only in times of temporary high water."(63)

The Court began to tinker with the definition of "navigable waters" in the twentieth century. It has held that a river whose commercial use or susceptibility of use is "sporadic and ineffective" is not navigable.(64) The river must be "of practical service as a highway of commerce,"(65) and it must be "of general and common usefulness for purposes of trade."(66) The Court expanded the definition to include a historical use test when it declared "[W]hen once found to be navigable, a waterway remains so."(67) This patchwork of definitions continues to inform the courts today.(68)

Congress enacted the Rivers and Harbors Act(69) pursuant to its authority under the Commerce Clause.(70) The Supreme Court has emphasized that the limited reach of the Commerce Clause constrains the government's power to act under the Rivers and Harbors Act:

   When it is remembered that the source of the power of the general
   government to act at all in this matter arises out of its power to regulate
   commerce with foreign countries and among the States, it is obvious that
   what the Constitution and acts of Congress have in view is the promotion
   and protection of commerce in its international and interstate aspect, and
   a practical construction must be put on these enactments as intended for
   such large and important purposes.(71)

The Court has always emphasized that when determining the power of federal agencies to act in regulating waterways, the focus is on commerce and not on the mere ability of vessels to move upon the water.(72) "In truth, the authority of the United States is the regulation of commerce on its waters. Navigability ... is but a part of this whole."(73)

Some state courts use a "recreational use" test of navigability that defines navigable waters to include those waters that, although unsuitable for commercial navigation, are suitable for recreational boating.(74) However, the federal courts have not adopted this rule for the Commerce Clause definition.(75) This seems to be the right choice, especially in the context of the Rivers and Harbors Act. Just as "[i]t would be a narrow rule to hold that in this country, unless the river was capable of being navigated by steam or sail vessels, it could not be treated as a public highway,"(76) the rule would be equally unfair if it included every ditch where one could float a canoe or catch a fish.(77)

Although recreational boaters use the Rio Grande near the La Linda Bridge,(78) such activity does not indicate that a body of water is navigable as a matter of law. When the Supreme Court held that the New River in Virginia was navigable in fact, it said "lack of commercial traffic [is not] a bar to a conclusion of navigability where personal or private use by boats demonstrates the availability of the stream for the simpler types of commercial navigation."(79) However, the boats referred to in that case were flat-bottomed bateaux boats (fifty to seventy feet in length) or motorized pleasure boats--not the canoes, kayaks, or small John-boats that are in popular use on the Rio Grande. Large bateaux boats are not in use on the river and Big Bend National Park allows only "VERY limited used of motor[boats] on certain sections of the river in the park at certain times of the year."(80) Commercial rafters are not permitted to use motors and there are no motors allowed in the canyon sections in the park. Outside of the park, motor boats are allowed, but are not used often.(81)

The assertion that canoes, rafts, or small outboard motorboats are the "customary modes of trade and travel"(82) on the Rio Grande seems a stretch; rather, they are merely the customary modes of recreation. Cases like George v. Beavark, Inc.,(83) in which the court found that fishing in flat bottom boats was not the kind of commerce and transportation that would justify characterizing a river as navigable,(84) seem better reasoned and more consistent with the Commerce Clause than opinions holding that recreational craft can define navigability.

The Rio Grande near Big Bend National Park has never been used as a channel of interstate or foreign commerce; no one familiar with the Rio Grande at mile 765.5 has ever seen any commercial traffic using the river as a channel of interstate commerce.(85) Moreover, the Coast Guard admits that the river is not used for any commerce.(86) Also, in United States v, Rio Grande Dam & Irrigation Co.,(87) the United States Supreme Court declared that the Rio Grande is not navigable along a similar stretch in New Mexico.(88) Like its lower stretch near Big Bend, the flow of water in the New Mexico stretch of the Rio Grande cannot support anything beyond floating rafts. Although the Rio Grande Dam & Irrigation Co. Court did say in dicta "that the Rio Grande, speaking generally, is a navigable river [as] ... a matter of common knowledge, and therefore the courts may properly take judicial notice of that fact,"(89) it also recognized a concept that was later explicitly stated by the Supreme Court in Appalachian Electric Power Co.: the navigability of only a portion of a river may be determined irrespective of the navigability of the river at any other point.(90) The plaintiffs and defendants in Rio Grande Dam & Irrigation Co. agreed that the river was navigable below Roma, a city just over 100 miles upstream from the Gulf of Mexico(91) but hundreds of miles downstream from the Big Bend area. In finding that the Rio Grande was not navigable in the territory of New Mexico, the Court quoted Massachusetts' Chief Justice Shaw:

   It is not every small creek in which a fishing skiff or gunning canoe can
   be made to float at high water which is deemed navigable, but, in order to
   give it the character of a navigable stream, it must be generally and
   commonly useful to some purpose of trade or agriculture.(92)

Although it may be true that the lower Rio Grande is navigable--from Roma into the Gulf of Mexico--the Rio Grande is not susceptible to use for commercial navigation near the Big Bend Area. The courts approach navigability of rivers pragmatically, recognizing that "each determination as to navigability must stand on its own facts."(93) The facts in this case support a finding of non-navigability.

Physically, the Rio Grande in the vicinity of Big Bend National Park cannot support any commercial traffic. The wet part of the channel running under the La Linda Bridge is only about 200 feet wide.(94) The river is very shallow: its depth varies from one foot (or less) to five feet, depending on the season and on upstream diversion activity.(95) The river is so shallow and flows so slowly that it is easy to wade across the river at most points. The concrete pad laid in the river by Dow still exists and is a popular low-water crossing point for vehicles and pedestrians.(96)

While some people cross the river in order to engage in commerce, this kind of activity is certainly not the kind of waterborne commerce that Congress intended to reach under the Rivers and Harbors Appropriation Act. According to a staff member at Big Bend National Park, individuals occasionally cross the river in small boats or on foot in order to transport gasoline or groceries; however, there is no regular activity of this sort.(97) This kind of activity, like border crossings over land, is effectively monitored by the Border Patrol, and it almost certainly does not constitute waterborne commercial traffic for navigability purposes. In discussing the navigability of one stretch of the New River, the Supreme Court took note of the fact that small public ferries crossed the river from bank to bank at ten different points, but the Court did not identify this activity as evidence of interstate commerce.(98) The Supreme Court declared the New River navigable only after finding that "[w]ell authenticated instances of boating along this stretch, however, exist."(99)

No one disputes that there is no regular, sustained use of the river for commerce at La Linda. Surely, sporadic, small-scale use of the river for occasional transactions is not activity that "substantially affect[s] interstate commerce."(100) Conferring Coast Guard jurisdiction over this stretch of river simply because a few individuals occasionally walk or paddle across it to buy a few necessities does not make sense and is not supported in the case law. Clearly, this is not the kind of commerce that Congress intended to reach under the Commerce Clause.

IV. ORDERING THE BRIDGE REMOVAL IS NOT A REASONABLE EXERCISE OF THE COAST GUARD'S POWER

Even if the Rio Grande at La Linda is navigable as a matter of law, the Coast Guard should exercise prudent discretion and allow the bridge to stand by treating mile 765.5 of the Rio Grande as a non-navigable river. There are many cases in which the Coast Guard's exercise of its authority over obstructions to navigation makes perfect sense. Congress enacted the Rivers and Harbors Act to enable the Coast Guard to order the removal of obstructions to navigation in order to promote commerce.(101) There are numerous cases in which the Coast Guard or the Army Corps required the removal of actual obstructions to navigation in order to enable commercial activity on navigable waters to occur in a safe and reasonable manner.

For example, when a bridge collapsed into the Chelsea River in Massachusetts, the Coast Guard acted under section 18 of the Rivers and Harbors Appropriation Act of 1899 to order its removal.(102) The Chelsea River had been in active use by oil tankers, but the piers, trestles, and fenders remaining in the water after the bridge collapsed limited the channel width to seventy feet, leaving "barely adequate passage to the 68 foot tankers in use in the oil industry."(103) The remains were removed under Coast Guard authority.(104) Similarly, the Supreme Court found that a bridge spanning the mile-wide Ohio River was an obstruction to navigation because of insufficient horizontal clearance.(105) There are many other cases in which the federal government used the Rivers and Harbors Act to clear obstructions in navigable waterways.(106) In each of these cases, the exercise of this authority made sense because an obvious and real obstruction to navigation and commerce existed. However, in the case of the La Linda Bridge, no such obstruction exists.

The La Linda Bridge is simply not an obstruction to the free navigation of the Rio Grande. There is absolutely no commercial traffic on the river; the river is used only for recreational purposes by rafts, small boats, and canoes.(107) Standing more than thirty feet over the water, the La Linda Bridge is not a clearance obstacle to boats passing under it.(108) According to people familiar with rafting on the Rio Grande, the bridge supports, which stand in the water, do not present any obstruction for recreational boaters.(109) Although it is not uncommon for bridge supports to gather natural debris like branches and other vegetation that might obstruct passage under the bridge, there has been no documented evidence of this problem at the La Linda Bridge.(110) The concrete slab placed in the river by Dow probably creates the only real obstruction to navigation near the bridge because, as it has deteriorated over time, the steel reinforcement bars present some danger of puncture to passing boats.(111)

In theory, the La Linda Bridge could collapse into the river, thereby creating an obstruction to boating. However, even the Coast Guard recognizes that this is not a real danger.(112) The bridge is well constructed, as it was built to withstand traffic from heavy industrial trucks carrying ore from Mexico on a daily basis.(113) The Coast Guard is aware that professional engineers have inspected the bridge for NPCA, and have declared that it is structurally sound.(114) Rather than taking the Draconian measure of ordering the bridge removed to prevent its eventual collapse, the Coast Guard could provide adequate safeguards against this unlikely event by requiring annual inspections of the bridge to monitor its structural integrity. Removing the bridge now will provide no benefits to the navigational capacity of the Rio Grande at mile 765.5.

Interestingly, if a local government or a railroad company owns a bridge that obstructs navigation in a navigable water, the Truman-Hobbs Act authorizes the federal government to share in the costs of making the necessary alterations.(115) However, because NPCA's bridge is privately owned and is not used for railroad traffic, it is not eligible for that federal assistance. Even if it did qualify under the Truman-Hobbs Act, NPCA would not get any help from the federal government because it would be an egregious waste of taxpayer dollars. The Coast Guard's regulations require:

   Before a bridge alteration is ordered and funded under the Truman-Hobbs
   Act, a thorough study and analysis relevant to the reasonableness of the
   bridge in question must be undertaken. The study must clearly demonstrate
   that the navigational benefits which would accrue as a result of the
   alteration would be at least equal to the cost of the alteration and,
   therefore, warrant such public expenditure for an Order to Alter to be
   issued.(116)

Clearly, there is little or no navigational benefit to removing the La Linda Bridge. If financial assistance were available to all similarly situated bridge owners, Coast Guard regulations promulgated under the Truman-Hobbs Act indicate that the public would not be asked to pay several hundreds of thousand of dollars for no navigational benefit.(117) The government requires private expenditure only because the bridge is privately owned.(118) This result is unfair to NPCA and smacks of abuse of government power.

V. THE RIVERS AND HARBORS ACT AND CONGRESSIONAL INTENT

Congress never intended the Rivers and Harbors Appropriation Act of 1899 to require the removal of bridges that have no effect on interstate, waterborne commerce. A common sense reading of the language of section 18 of the Act indicates that a bridge obstructs navigation when the bridge has improper dimensions with respect to the waterway and blocks the passage of vessels.(119)

However, the La Linda Bridge does not obstruct any commercial vessels because there are no such vessels navigating the Rio Grande at that location.(120) The case law makes clear that the Rivers and Harbors Act focuses on obstructions to commercial traffic: "In substance, the Act authorizes the Secretary of War,(121) for good cause, upon reasonable notice, to order specified alterations of an existing bridge over a navigable river so that it will not be an unreasonable obstruction to commerce on the river."(122) There seems to be little question that Congress did not intend to remove or alter bridges arbitrarily--it only intended to require the alteration or removal of bridges that were obstructing commerce on navigable rivers. The La Linda Bridge is not obstructing commerce. Quite to the contrary, it may greatly advance commerce one day by providing a connection between the parks in Mexico and the United States, but only if it is allowed to remain standing.

Section 18 of the Act requires that the Secretary order the alteration or removal of a bridge if it is an unreasonable obstruction "on account of insufficient height, insufficient width of span, or otherwise."(123) As has been discussed above, the La Linda Bridge is not an obstruction for any of these reasons.(124) The rest of the statute directly addresses how a bridge might be obstructing the passage of vessels. For example, a bridge may be an obstruction "where there is difficulty in passing the draw opening or the draw span of such bridge by rafts, steamboats, or other water craft."(125) If the bridge is an obstruction to such navigation, the Coast Guard is required "to give notice to the persons or corporation owning or controlling such bridge to alter the same as to render navigation through or under it reasonably free, easy, and unobstructed."(126)

However, if navigation is already "free, easy, and unobstructed" for any existing and potential navigation, it contradicts common sense to remove the bridge to accomplish what already exists. As the courts have made clear, legislative enactments "must be construed with common sense, so as to give effect to the intention of Congress."(127) Common sense mandates that the La Linda Bridge remain standing.

Under the plain meaning of the statute and according to the intent of the enacting Congress, the La Linda Bridge cannot be deemed an unreasonable obstruction to navigation under the Act. Nonetheless, the Coast Guard has promulgated a rule, 33 C.F.R. part 116.01(a),(128) stating that "[a]ll bridges are obstructions to navigation and are tolerated only as long as they serve the needs of land transportation while allowing for the reasonable needs of navigation."(129) This regulation cites section 18 of the Rivers and Harbors Appropriation Act of 1899(130) for its statutory authority.(131) According to this rule, the La Linda Bridge would be an unreasonable obstruction to navigation because, while currently closed, it does not serve the needs of land transportation. Yet, NPCA's bridge clearly falls outside of the text and purpose of section 18 of the Rivers and Harbors Appropriation Act of 1899. Therefore, the Secretary has exceeded his statutory grant of authority by applying this rule to the La Linda Bridge, and part 116.01(a) is invalid as applied.

The Coast Guard has a colorable argument that part 116.01(a) validly applies to the La Linda Bridge. The statute describes bridges as obstructing navigation "on account of insufficient height, width of span, or otherwise."(132) While it is clear that the La Linda Bridge does not obstruct navigation on account of its height or width, the Coast Guard might argue that a bridge like the one at La Linda that is closed to highway traffic "otherwise" obstructs navigation by its mere presence. However, as a matter of statutory construction, such an argument is illogical.

The commonly accepted statutory canon ejusdem generis provides that "where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated."(133) Therefore, "or otherwise" must be construed to apply to conditions of the bridge that might, like "insufficient height and "width of span," tend to create an existing or possible obstruction to waterborne commerce.(134) "Or otherwise" cannot be read as authorizing the Secretary of Transportation to determine that all bridges are obstructions to navigation.

The legislative history of the Rivers and Harbors Act discloses that Congress's intent in enacting the statute was to provide for the requirements of waterborne commerce and to enable the Secretary to remove actual obstructions to that commerce.(135) Each section of the Act works toward opening the nation's harbors, clearing its silted rivers, and making waterborne trade as efficient as possible.(136) The Act provides funding for dozens of projects across the country.(137) For example, among the most prominent projects is the improvement necessary to New York Harbor to create a deeper, broader, and more direct channel to the sea.(138)

Consistent with its focus on ensuring that the rivers and harbors of the United States can best serve the interests of waterborne commerce, the Act requires the Secretary of War(139) to prepare a list of all piers, wharves, and harbor works that are currently occupied by private parties.(140) Congress enacted this section not only to ensure that it receives compensation for the use of government land, but "what is more important ... [is that] occupancy is sometimes of such a nature as to interfere with the free and unobstructed use of necessary channels."(141) Although the House Report accompanying the Act does not mention section 18, Congress enacted the subsequent section to enable the Secretary promptly to remove shipwrecks and sunken vessels from navigable waterways.(142) Explaining the need to amend the existing law, the House Report emphasized the needs of commercial waterborne trade: "Under present law unnecessary delay might occur in removing obstacles from navigable waters, and serious injury to commerce might result from the lack of an efficient and prompt remedy for clearing channels which may be encumbered by wrecks."(143)

When the bill came out of committee, its sponsor expounded on the need for the federal government to undertake the great task of improving its navigable channels of interstate and international commerce:

   Mr. Chairman, this country is entering upon an era of commercial expansion.
   The vast amount of our exports, as well as their excess over our imports,
   is a marvel to the commercial world. To take advantage of this situation,
   to reap its full benefit, nothing is more urgent than the improvement of
   our rivers and harbors so that the products of the farm, the forest, the
   mine, and the factory may be carried to the sea, and then loaded into ships
   in deep-water harbors to be taken to other portions of the world. The
   question arises how shall this work be done, for we must realize that not
   to go forward is to go backward.(144)

The purpose of the Rivers and Harbors Appropriation Act was indisputably to improve the country's waterways and to ensure that commerce flowed unimpeded. Removing the La Linda Bridge would do nothing to improve commerce on the Rio Grande.

Mexico owns half of the La Linda Bridge because it is an international bridge.(145) If NPCA is required to remove the bridge, it will be allowed to remove only the half that it owns. In addition to the obvious structural and engineering difficulties involved in performing this task, the result would be worse than before the removal. Because half of a bridge is not usable, both the United States and Mexico would effectively be left with no bridge at all. Unless Mexico removes its half of the La Linda Bridge, the Mexican half will still be left standing over the water.(146) Not only would the La Linda Bridge be reduced to a farcical monument to government myopia, it would continue to present just as much of an "unreasonable obstruction to the free navigation" of the Rio Grande as it did before half of it was removed.

Such a scenario is almost surreal in its absurdity, but it is very possible. Considering only the immediate consequences for NPCA and for the local community, removing the La Linda Bridge seems like a step in the wrong direction. When one considers the larger, long term effects the removal may have on border relations, regional economics, and environmental stewardship, it seems like a step backwards. When the Rivers and Harbors Appropriation Act was before Congress over 100 years ago, Congressman Burton reminded his peers that "not to go forward is to go backward."(147) Indeed, if "not to go forward is to go backward," then going backward must be the least favored option. As Part VI outlines, it certainly is.

VI. THE EFFECTS OF REMOVING THE BRIDGE

If allowed to stand, the La Linda Bridge may serve as an essential building block for the future development of commerce and eco-tourism in the area. Congress enacted the Rivers and Harbors Appropriation Act of 1899 to further commerce.(148) Therefore, construing the Act to require the removal of the La Linda Bridge is contrary to the purpose of the Act.

The Act was passed to promote trade and transport on the nation's waterways--the most important channels of interstate and foreign commerce in 1899.(149) The appropriations made by Congress in 1899 demonstrate that the Act was intended to benefit small, local economies like Cape Porpoise, Maine and Burlington, Vermont, as well as the larger economies of New York and New Orleans.(150) The Act focused on each individual locale and recognized each locale's need to participate in sustained, competitive commerce on its waterway.(151) The Act funded major restoration projects throughout the United States so that the navigable waters could serve as unimpeded channels of interstate commerce during a period when waterborne shipping was the major carrier of commerce.(152)

The communities on both sides of the border near Big Bend enjoyed none of the Act's benefits in 1899 because their river could not support navigation.(153) Ironically, it appears that a statute that was used to achieve great economic success for the economy of the twentieth century might now be used to restrain efforts at economic success in the twenty-first century.

The United States and Mexican governments have been working diligently in recent years to create a thriving border economy. Former President Zedillo of Mexico and U.S. President Clinton stated in a joint press conference, "[w]e share more than a 2,000 mile border, and, more importantly, we also share a vision of what the border should be in the 21st century--a safe, clean, efficient model of prosperity and cooperation joining our people, not a barrier that divides them."(154)

Beginning with the North American Free Trade Agreement(155) in 1992, the United States and Mexico have aspired to create a sustainable border economy grounded in trust and cooperation. President Clinton has worked throughout his tenure to strengthen United States-Mexico relations, especially with respect to environmental issues and the border. Speaking to the Mexican people, he said:

   With our long border, rich history, and complex challenges, Mexico and the
   United States have a special responsibility to work together to seize
   opportunities and defeat the dangers of this time.... Trade, education and
   the environment are critical pieces of the greater mosaic of our
   relationship, designed to turn our 2,000 mile border into a vibrant source
   of growth and jobs and open exchange.... As our cooperation grows closer,
   so do our people.(156)

As part of his plan to bring economic development to the border area, President Clinton has launched a Southwest Border Economic Development Initiative with a goal of raising the living standards and overall economic profile of the Southwest border on a sustained basis.(157) Removing the La Linda Bridge conflicts directly with this policy of promoting economic development and good neighbor relations.

Today, roadways are the major channels of interstate commerce. Removing a bridge that is fundamental to the economic development of part of the United States-Mexico border area is contrary to the current diplomatic efforts to encourage and promote economic development along the border. At present, no other bridges exist that provide a physical connection between the United States and Mexico in this area. The nearest border crossings are in Del Rio (210 miles away) and Presidio (120 miles away).(158) If the La Linda Bridge is removed, the stretch of river between Del Rio and Presidio will become the longest stretch of the entire United States-Mexico border without a crossing point.(159) This will effectively erect an economic barrier in this area by severing the modern channels of interstate commerce between the United States and Mexico.

The local environmental and economic communities near Big Bend believe that a sustainable economic future can be built around eco-tourism, and they believe that the La Linda Bridge is an essential building block for that future.(160) While most agree that the greatest impact would be felt on the Mexican side of the border, the Texas communities would also benefit from the economic development of the region as a whole.

For example, the La Linda Bridge could facilitate the development of the two newly established Mexican reserves, the Maderas del Carmen and the Canon de Santa Elena. The bridge would provide a direct, time-efficient passageway for U.S. tourists. Presently, getting from the Big Bend National Park in Texas to the Mexican side can be accomplished in only two inconvenient ways: driving 120 miles over a small, windy road to the bridge in Presidio and then driving 120 miles back to the Mexican reserves, or crossing by water taxi at some places in the park.(161) Driving through the river is illegal(162)--not to mention daunting for a family sedan. The bridge would obviate the need for such extreme measures and enable visitors to visit the Mexican parks more easily (and more often).

As fledgling parks, the Maderas del Carmen and Canon de Santa Elena could benefit greatly not only from Big Bend National Park's visitors, but also from its human resources, supplies, equipment, machinery, and support. These parks were only recently established and are not yet open to the public.(163) Mexican park officials want to accept visitors as soon as possible, but they also want to ensure that the parks have sufficient infrastructure in place so that park visitors will not damage the natural and cultural attractions. The parks are rich in archeological sites, fossils, and other natural and cultural resources; protecting these fragile resources requires careful planning and meticulous eco-system management. If those who are supporting the development of the Mexican reserves could use the La Linda Bridge, it would make providing professional guidance and infrastructure support infinitely easier and would allow activities that cannot be accomplished by boat. According to an official at Big Bend, developing the parks on the Mexican side of the border without the bridge will be extremely difficult.(164)

NPCA is designing plans to develop eco-tourism in the area.(165) As an organization dedicated to the preservation of natural resources, NPCA is very concerned about sustainable development and wants to ensure that future economic projects are in concert with the land and not at the expense of the natural environment.(166) The area near Big Bend National Park and the Maderas del Carmen is a delicate desert ecosystem; it has little water, but it possesses much beauty. Ideally, sustainable development would not affect the "best-preserved corner of the Chihuahuan desert."(167)

One scenario proposed by NPCA is to reinvent the small town of La Linda as a host city that can act as a gateway to the Maderas del Carmen. The town might furnish visitors with food, camping supplies, and small-scale overnight lodging. However, without the bridge, tourists will likely not come to the area. As a result, it will be difficult to attract potential investors to develop the area. Without an infusion of capital, La Linda will likely remain a "junkyard."(168)

NPCA has good reason to be optimistic about the prospects for ecotourism. Tourism is one of the fastest growing sectors in the world economy.(169) This seems to be particularly true with respect to eco-tourism. In 1950, there were thirty-seven million visitors to the national parks in the United States.(170) In 1999, the national parks played host to more than 286 million visitors.(171) That number is expected to double to more than 500) million by 2010.(172) The population of the thirteen westernmost states, including Texas, was fifty-nine million in 1997; by 2025, that number is projected to be ninety-three million, and Texas is expected to be among the fastest growing.(173) All these visitors will need food, lodging, tour guides, gasoline, clothing, and equipment--products and services that should be supplied by the local economies in Texas and Mexico.

A 1992 poll conducted in Big Bend National Park showed that about ten percent of visitors cross the Rio Grande to one of the adjacent Mexican villages of Santa Elena, Boquillas, or San Vicente.(174) Twenty percent of visitors polled said that they were attracted to Big Bend National Park because of its location on the border.(175) However, these visitors are limited to walking around the small villages because they cannot bring their vehicles across the river. If these same visitors could bring their cars across the border, they would be likely to stay longer, travel more extensively, and, of course, spend more money. At present, these small Mexican communities exist in poverty. Santa Elena is home to three restaurants, but has no medical facilities, no telephones, and no public transportation.(176) Tourism is extremely important to the small village of Boquillas and its existing economy; however, like Santa Elena, it has no electricity, medical facilities, telephones, or public transportation.(177)

These Mexican border towns are surrounded by an attractive desert landscape. Hundreds of thousands of visitors stay for about two to three days each year at Big Bend National Park,(178) yet only ten percent of visitors experience what Mexico has to offer.(179) The reason may be that Mexico has little tourist infrastructure in the area. However, if local economic and environmental interests are supported, then that may change some day. Nevertheless, these border communities will need the La Linda Bridge to make such development happen.

Eco-tourism not only contributes to a sustainable economy, but it can also aid in the preservation of natural resources.(180) As the Mexican reserves become ready to accept visitors--assuming that there is development in the Big Bend-Maderas del Carmen area to support tourism--the hope is that the area's natural and cultural resources will attract more visitors.(181) Ideally, each of these visitors will become an advocate for preserving those resources. The end result will be a stronger political and economic force that will prevent consumptive uses of attractive environments, such as logging, mining, and the channeling of waterways--activities that have a much more destructive impact than tourist activity.(182)

Besides NPCA's effort to bring eco-tourism to the area, Rotary International has proposed the creation of an international peace park between Big Bend and the two Mexican reserves. The idea is to create a plan similar to the Waterton/Glacier International Peace Park straddling the U.S.-Canadian border in Montana and Alberta.(183)

The concept of an international park is not a new one. In 1933, eleven years before the establishment of Big Bend National Park, the Texas Chamber of Commerce proposed an international park on the border. The Chamber even went as far as commissioning a landscape architect to conduct studies and prepare plans for the park. In the winter of 1935, Congress authorized the creation of Big Bend National Park. Later that Fall, United States and Mexican officials appointed a commission to investigate the proposal and recommend park boundaries.(184) However, with the onset of World War II, official dialogue regarding an international park stalled. In the end, "[c]ultural differences, distrust, private land interests, economics, and more demanding domestic and international issues ... delayed the establishment of a protected area in Mexico."(185)

Nonetheless, the scientific and aesthetic value of the natural resources led to the eventual establishment of the Maderas del Carmen and the Canon de Santa Elena reserves.(186) Today, the National Park Service (NPS) does not openly support the idea of an international peace park; rather, it is taking a "wait and see" approach. There are political groups--probably outside NPS--that resist the idea because they think an international peace park and plans for cooperative management raise troubling questions about national sovereignty. Officials at Big Bend do not share this view.(187) For the moment, NPS thinks of the three protected areas as "sister parks."(188)

Most people familiar with Big Bend believe that the Mexican reserves have the most to gain from the creation of an international peace park.(189) Such designation would bring higher visibility to the Mexican reserves, which would greatly assist them in attracting visitors. More importantly, it would serve as a meaningful symbol of the spirit of peaceful, mutually beneficial cooperation aimed at facilitating wise environmental stewardship. In this regard, it fits with President Clinton's vision for a healthy and synergetic border relationship. The success of the Mexican reserve and the potential for local economic growth depend upon good neighbor relations with the United States.(190) Successful development of the parks, local economies, and the crucial bi-national relationship requires a concrete connection between the United States and Mexico. For these reasons, both literally and figuratively, there must be a bridge.(191)

Serious concerns exist that park development and the subsequent increase in tourism may undercut these goals by leading to both the destruction of the natural environment and a diminished experience for tourists.(192) However, according to an official at Big Bend National Park, heavy tourist visitation presents no danger to the park.(193) The park is very remote, located hundreds of miles from any major city or town. The park consists of 801,163 acres, and its boundary with Mexico stretches 118 miles(194)--farther than the distance from Philadelphia to New York City.(195) In addition to its large size, Big Bend experiences fewer visitors than most national parks--less than 350,000 each year.(196) Few visitors see more than a small percentage of what the park has to offer. Park officials are confident that careful planning and management would prevent any untoward effects resulting from an increase in tourists. To ensure conservation, park officials intend to assist their Mexican counterparts with managing visitor impact across the border in the Maderas del Carmen and the Canon de Santa Elena reserves.(197) So long as scrupulous, vigilant preparation exists on both sides of the border, there seems to be little obstacle to sustainable economic development and natural resource preservation--that is, no obstacle except a closed bridge.

Removing the La Linda Bridge will also hamper cooperative environmental projects with Mexico. Until a few years ago, Texas Parks and Wildlife Department employees were doing cooperative research on peregrine falcons just across the river in the Mexican state of Coahuila.(198) However, when the bridge closed, their travel time increased from four hours to fourteen and one-half hours as they were forced to travel hundreds of miles to Del Rio to cross the Rio Grande and reach their destination in Mexico.(199) For this reason, their research has stopped.(200) Conservationists and NPS staff have worked on a number of projects in Mexico, from research on migratory animals to developing curriculum for environmental education.(201) Their efforts might be expanded if the La Linda Bridge were open.

While the removal of the La Linda Bridge is likely to impede economic growth in the area and to have long-term negative effects, the closure of the La Linda Bridge has already caused serious economic harm in the area for the past three years. Production Minerals, Inc. had been importing fluorspar from Mexico since the mid-1950s.(202) Before the bridge was closed, the company had been importing about $500,000 worth of material into the United States every month.(203) However, closure of the La Linda Bridge forced Production Minerals to close that aspect of its operations and deprived it of a significant source of income.(204) As a result, Production Minerals closed its crushing and screening plant in Marathon, Texas.(205)

The Stilwell Store, a local grocery and trailer court, has seen drastic reductions in business as a result of the reduced traffic on the Texas road leading to the La Linda Bridge.(206) Local American charities that once brought food and clothing to the rural poor in Mexico have no ready method for transporting their much-needed goods and services across the river.(207) If NPCA is required to remove the bridge, it will have to expend funds that might otherwise go to preserving the environment and promoting the parks, and that would certainly be better spent trying to bring sustainable development to the area.

VII. CONCLUSION

The majority of interested persons agree that the La Linda Bridge should remain closed until concerns about law enforcement are addressed. However, only the Coast Guard believes that the bridge should be removed.(208) The bridge can serve as an essential building block in the sustainable development of eco-tourism, but only if it remains standing. Unfortunately, the Coast Guard does not consider the social, economic, environmental, or policy implications of its actions. Rather, it maintains that it has a non-discretionary statutory duty to see unused bridges removed. The Chief of the Coast Guard's Bridge Administration Branch has declared that the Coast Guard "is in the business of permitting bridges, making sure they meet the requirements of [national environmental policy,] ensuring the needs of navigation are met, and that when a bridge is not being used for its intended purpose of transportation, it is removed. I put no emotion, no thought into that decision."(209)

If the Coast Guard prevails, the physical connection between Mexico and the United States in this region will be severed, and the Coast Guard will have breached the nexus between the law, common sense, and sustainable development. This Comment has argued that the Coast Guard does not have the authority to act in this instance. In the alternative, even if the Coast Guard does have the authority, it should exercise sound discretion and decline to act. The Coast Guard should recognize that the La Linda Bridge serves as a crucial gateway to the future success of an underdeveloped local economy, a beautiful natural environment in need of protection, and a burgeoning political relationship. The Coast Guard must find its own bridge between good policy and its statutory mandate, and it must cross that bridge when it finds it.

(1) Telephone Interview with Sally Spener, Public Affairs Officer. United States International Boundary Waters Commission (Mar. 30, 2000) [hereinafter Spener Interview].

(2) Id.

(3) Letter from Audrey Adams, Acting Assistant Commissioner, Office of Field Operations, United States Customs Service, to David Simon. National Parks and Conservation Association (Apr. 28, 1997) (on file with author) [hereinafter Adams Letter].

(4) Letter from John Wachter, Chief, Bridge Administration Branch, United States Coast Guard, to David Simon, National Parks and Conservation Association (Apr. 29, 1997) (on file with author) [hereinafter Wachter Letter].

(5) H.R. REP. NO. 87-1402, at 1-2 (1962).

(6) An Act Authorizing the Dow Chemical Company to Construct, Maintain, and Operate a Bridge Across the Rio Grande at or near Heath Crossing, Texas, Pub. L. No. 87-525, 76 Stat. 140 (1962).

(7) Letter from S.W. Royes, Engineering and Construction Services, Dow Chemical Company, to L.H. Henderson, Principal Engineer, International Boundary and Water Commission (Oct. 9, 1964) (on file with author).

(8) Letter from Rick Kreuzer, President, KFM Engineering, to Terry Grimble, President, Grimble & Associates (May 12, 1999) (on file with author) [hereinafter Kreuzer Letter].

(9) Benjamin Schwarz and Christina Schwarz, Around the Big Bend, ATLANTIC MONTHLY, Apr. 2000, at 42.

(10) 1999 COUNTY AND CITY EXTRA 650 (Deidre A. Gaquin & Mark S. Litman eds., 1999).

(11) River miles are measured along the center of the river, upstream from the mouth of the river. Thus, "mile 765.5" is 765.5 river miles upstream from where the Rio Grande empties into the Gulf of Mexico.

(12) See generally RAND MCNALLY ROAD ATLAS 97 (2000) (depicting roads, political divisions, and other relevant features in the area).

(13) See id.

(14) See E-mail from Mr. Andrew Kurie, President, Heath Canyon Ranch (Apr. 13, 2000) (on file with author) [hereinafter Kurie E-mail]. Mr. Kurie is a former employee of both Dow and Dupont and has lived next to the La Linda Bridge since the 1980s. Today he operates Heath Canyon Ranch, a small resort-style ranch located adjacent to the bridge.

(15) Quitclaim Deed (executed June 11, 1986; recorded at vol. 262, p. 320, New Castle County, Delaware) (on file with author). NPCA is a national non-profit environmental organization dedicated to protecting and enhancing America's National Park System. It focuses on park resource protection, park funding and management, visitor use of the parks, as well as public education on critical issues facing the National Park System. See National Parks and Conservation Association, What We Do, at http://www.npca.org/about_npca/ (last visited Nov. 18, 2000).

(16) Kurie E-mail, supra note 14.

(17) Id.

(18) Telephone Interview with Lou Good, Park Management Assistant, Big Bend National Park (Apr. 7, 2000) [hereinafter Good Interview]. See also Interview with Elizabeth Fayad, Staff Counsel, National Parks and Conservation Association, in Washington, D.C. (Mar. 12, 2000) [hereinafter Fayad Interview].

(19) Telephone Interview with Leo Jackson, President, Production Minerals, Inc. (Apr. 3, 2000) [hereinafter Jackson Interview]. Production Minerals had imported fluorspar from Mexico since the mid-1950s. Mr. Jackson estimated that his company imported about 500 tons of fluorspar per month before the La Linda Bridge closed. He indicated that the population of La Linda was much larger many years ago when the town's residents worked in the local processing facility owned by Dow's subsidiary, La Dominicia.

(20) Kurie E-mail, supra note 14.

(21) Id.

(22) Good Interview, supra note 18.

(23) See Letter from Bishop L. Bailey, Vice-President, Production Minerals, to Congressman Henry Bonilla (Oct. 29, 1996) (on file with author).

(24) Id.

(25) Telephone Interview with Susan L. Goodwin, U.S.-Mexico Coordinator, Office of International Affairs, U.S. Department of the Interior (Mar. 14, 2000) [hereinafter Goodwin Interview].

(26) National Parks Service, Partners in Protection of the Chihuahuan Desert, available at http://www.nps.gov/bibe/mexareas.htm (last visited Nov. 18, 2000). The Mexican protected areas are made up of a patchwork of privately owned lands. See id.

(27) Letter from Charles F. Strong, U.S. Customs Port Director, Presidio, TX, to Bishop Bailey, Vice President, Production Minerals (Aug. 12, 1996) (on file with author).

(28) Adams Letter, supra note 3, at 1.

(29) Id.

(30) Id. In the mid-1990s, the Customs Service instituted a new enforcement program, Operation Hard-Line. The new program seeks to force drug smugglers to cross the U.S.-Mexico border only at certain border crossings where law enforcement agencies position their most capable officers, facilities, and technology to detect drug smuggling. See Telephone Interview with Gurdit S. Dhillon, Director of Field Operations, U.S. Customs Service, West Texas-New Mexico Management Center (May 5, 2000) [hereinafter Dhillon Interview]. In order for Operation Hardline to function properly, the entire border must be as secure as possible. Id. The Customs Director of Field Operations for the West Texas-New Mexico area identified the La Linda Bridge as a "weak link" in this strategy because it was not staffed by any law enforcement agents and provided an "open thoroughfare" for drug smugglers. Id. Local law enforcement officers and the U.S. Border Patrol informed Customs that it believed there was a substantial amount of illegal traffic using the La Linda Bridge for smuggling. Id. In addition, Customs learned that a Mexican customs service officer was killed in the line of duty while working at the bridge. Id. Customs considered staffing the bridge to combat illegal use of the bridge, but decided that its human and financial resources could accomplish more at an official port of entry in a less rural area. As a result, Customs decided to close the La Linda Bridge. Id.

Mr. Dhillon acknowledges that vehicles can still drive across the river at many points along the Rio Grande, including near the La Linda Bridge. Id. He recognized that this is a law enforcement concern, and he stressed that Customs faces many difficulties monitoring such a long border, much of which is located in very rural areas. In his view, an open bridge where "anything could come and go" is not consistent with Operation Hard-Line. Id. While smugglers may still drive through the river undetected, Customs has made it as difficult as possible for those smugglers to reach the United States by closing the La Linda Bridge. Closing the bridge puts U.S. law enforcement officials in the best position possible to police the border under Operation Hard-Line. Id. According to its own statistics, Customs' seizures of illegal goods under Operation Hard-Line have increased 450% since the program began. Id.

It was not until after Customs decided to close the La Linda Bridge that it became aware that the U.S. Coast Guard would subsequently order destruction of the bridge. Mr. Dhillon had no comment on the Coast Guard's order other than to say that it was "the Coast Guard's decision to make." Id.

The wisdom of Customs' decision to close the bridge is beyond the scope of this Comment. Rather, this Comment focuses on the legality and prudence of the Coast's Guard's destruction order, and it addresses the potential economic growth for the area near the La Linda Bridge, which may create a significant need for Customs to reopen the bridge. Mr. Dhillon stated adamantly that Customs wants to be responsive to the needs of border communities, and he said that if there were a sufficient demand for a staffed border crossing at the La Linda Bridge, it "absolutely would" provide that service. Id.

(31) Adams Letter, supra note 3.

(32) Wachter letter, supra note 4, at 1.

(33) The statute reads, in relevant part:

   Whenever the Secretary of Transportation shall have good reason to believe
   that any railroad or other bridge now constructed, or which may hereafter
   be constructed, over any of the navigable waters of the United States is an
   unreasonable obstruction to the free navigation of such waters on account
   of insufficient height, width or span, or otherwise, ... it shall be the
   duty of the said Secretary, first giving the parties reasonable opportunity
   to be heard, to give notice to the persons or corporations owning or
   controlling such bridge so to alter the same as to render navigation
   through or under it reasonably free, easy, and unobstructed; and in giving
   such notice he shall specify the changes that are required to be made, and
   shall prescribe in each case a reasonable time in which to make them.

Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. [sections] 502(a) (1994).

(34) Wachter Letter, supra note 4.

(35) See Fayad Interview, supra note 18. See also Telephone Interview with David Simon, Southwest Regional Director, National Parks and Conservation Association (Apr. 3, 2000) [hereinafter Simon Interview].

(36) See infra Part VI for a discussion of the bridge closure's negative consequences on Big Bend National Park, the Mexican reserves, and local communities.

(37) See Dhillon Interview, supra note 30 (describing the effect of the bridge's closing on narcotic smugglers).

(38) See Fayad Interview, supra note 18. See also Simon Interview, supra note 35.

(39) See Letter from David Simon, Southwest Regional Director, National Parks and Conservation Association, to Anne Shields, Chief of Staff, Office of the Secretary, U.S. Department of the Interior (May 5, 1997) (on file with author) (explaining the bridge's importance to NPCA).

(40) Letter from U.S. Department of State to Embassy of Mexico (May 7, 1997) (on file with author).

(41) Letter from Embassy of Mexico to U.S. Department of State (June 17, 1997) (on file with author).

(42) Letter from Jose A. Cisneros, Superintendent, Big Bend National Park, to David Simon, Southwest Regional Director, National Parks and Conservation Association (May 20, 1997) (containing minutes from the May 16, 1997 meeting) (on file with author).

(43) Id.

(44) See Facsimile from Libby Fayad, Regional Office, National Parks and Conservation Association, to Chris Herrling, Wilmer, Cutler, & Pickerling (Aug. 25, 1997) (on file with author) (explaining that Coast Guard still planned to remove the La Linda Bridge).

(45) See Letter from Marcus N. Redford, P.E., Chief, Bridge Administration Branch, Eighth Coast Guard District, U.S. Coast Guard, to Thomas Kiernan, President, National Parks and Conservation Association (July 13, 1999) (on file with author) [hereinafter Redford Letter].

(46) Telephone Interview with Ricardo Pineda, Border Cooperation Affairs, Mexican Embassy to the United States (June 26, 2000) [hereinafter Pineda Interview].

(47) See Redford Letter, supra note 45.

(48) See Telephone Interview with Marcus N. Redford, P.E., Chief, Bridge Administration Branch, Eighth Coast Guard District, U.S. Coast Guard (Mar. 31, 2000) [hereinafter Redford Interview]. See also Letter from James D. Hull, Rear Admiral, Director of Operations Policy, U.S. Coast Guard, to Donald J. Barry, Assistant Secretary for Fish and Wildlife and Parks, U.S. Department of the Interior (July 21, 1998) (on file with author).

(49) Letter from David E. Randolph, Coordinator, U.S.-Mexico Border Affairs, U.S. Department of State, to Thomas C. Kiernan, President, National Parks and Conservation Association (July 2, 1999) (on file with author).

(50) Simon Interview, supra note 35.

(51) Id.

(52) Id.

(53) Big Bend National Park opposes construction of any bridge inside the park. Good Interview, supra note 18. Environmentalists also are likely to oppose such a plan because it may lead to more vehicular traffic and pollution inside the park. See Americans Backing Better Park Development, An Alternative to the Master Plan and Wilderness Proposal for Big Bend National Park (on file with author) (proposal submitted by non-profit citizen group in opposition to development within Big Bend National Park). In addition, it would be politically difficult to justify spending millions of dollars for a new bridge without greater existing demand. However, an existing, useful bridge (e.g., the La Linda Bridge) provides a sensible starting point for future economic and conservation planning for the area.

(54) Federal statutes authorize the Coast Guard to "promulgate such regulations and orders as [it] deems appropriate to carry out the provisions of [Title XIV, U.S. Code] or any other law applicable to the Coast Guard." 14 U.S.C. [sections] 633 (1994).

(55) 33 U.S.C. [sections] 502 (1994).

(56) Adams Letter, supra note 3. Section 18 of the Rivers and Harbors Appropriation Act of 1899 states:

   If at the end of such time the alteration has not been made, the Secretary
   of Transportation shall forthwith notify the United States attorney for the
   district in which such bridge is situated, to the end that the criminal
   proceedings hereinafter in this section mentioned may be taken. If the
   persons, corporation, or association owning or controlling any railroad or
   other bridge shall, after receiving notice to that effect, as hereinbefore
   required, from the Secretary of Transportation, and within the time
   prescribed by him willfully fail or refuse to remove the same or to comply
   with the lawful order of the Secretary of Transportation in the premises,
   such persons, corporation, or association shall be deemed guilty of a
   misdemeanor and on conviction thereof shall be punished by a fine not
   exceeding $5,000, and every month such persons, corporation, or association
   shall remain in default in respect to the removal or alteration of such
   bridge shall be deemed a new offense, and subject the person, corporation,
   or association so offending to the penalties above prescribed.

33 U.S.C. [sections] 502 (a) (1994). For additional text from the statute, see supra note 33.

(57) 33 C.F.R. [sections] 2.05-30 (1999). The Coast Guard has jurisdiction over navigable waters in other limited instances, none of which apply here. See Id.

(58) See id. (defining "waters subject to the jurisdiction of the United States").

(59) 77 U.S. (10 Wall.) 557 (1870).

(60) Id. at 563. There is no disagreement about whether The Daniel Ball definition constrains the Commerce Clause power. See Kaiser Aetna v. United States, 444 U.S. 164, 172 (1979). The only disagreement among courts and scholars is whether The Daniel Ball should also inform admiralty definitions of navigation. See John F. Baughman, Note, Balancing Commerce, History, and Geography: Defining the Navigable Waters of the United States, 90 MICH. L. REV. 1028, 1038 n.66 (1992) (noting that "navigable waters" may have different definition in Commerce Clause and admiralty contexts).

(61) 77 U.S. (10 Wall.) at 564-65.

(62) See, e.g., United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 698 (1899) (finding "[t]he mere fact that logs, poles and rafts are floated down a stream occasionally and in times of high water does not make it a navigable river").

(63) Id. at 699.

(64) United States v. Oregon, 295 U.S. 1, 23 (1935).

(65) Econ. Light and Power Co. v. United States, 256 U.S. 113, 124 (1921).

(66) Oregon, 295 U.S. at 23.

(67) United States v. Appalachian Elec. Power Co., 311 U.S. 377, 408 (1940).

(68) See, e.g., Miami Valley Conservancy Dist. v. Alexander, 692 F.2d 447, 449-50 (6th Cir. 1982) (citing above cases, and concluding, "[t]he test of navigability has been stated and restated by the federal courts for the last one hundred years. Navigability has been defined in countless ways but its essential elements have remained constant."), cert. denied, 462 U.S. 1123 (1983); United States v. Stoeco Homes, Inc., 498 F.2d 597, 609-10 (3d Cir. 1974) (relying upon The Daniel Bail for definition of "navigable waters"), cert. dented, 420 U.S. 927 (1975); Marroni v. Matey, 492 F. Supp. 340, 342 (citing The Daniel Ball for test of navigability) (E.D. Pa. 1980); United States v. Sasser, 967 F.2d 993, 995-96 (4th Cir. 1992) (citing The Daniel Balls definition of navigability, and stating that "[t]he Supreme Court has noted that there are at least four tests for determining whether bodies of water are `navigable waters of the United States'"), cert. dented, 507 U.S. 1004 (1993).

(69) Rivers and Harbors Appropriation Act of 1889, 33 U.S.C. [sections] 502 (1994).

(70) U.S. CONST. art. I, [sections] 8. See generally Louisville Bridge Co. v. United States, 242 U.S. 409 (1917) (holding that section 502 is a valid exercise of congressional power to regulate interstate commerce).

(71) Leovy v. United States, 177 U.S. 621, 633 (1900).

(72) See id. at 628-32 (discussing previous decisions that held "navigable waters" to be those waters capable of supporting commerce); Appalachian Elec. Power Co., 311 U.S. at 426.

(73) Appalachian Elec. Power Co., 311 at 426. The Coast Guard's own regulations mirror the judicial definition. In order to be a navigable water, a waterway must satisfy the following conditions: "(a) Past, present, or potential presence of interstate or foreign commerce; (b) Physical capabilities for use by commerce as in paragraph (a) ...; and (c) Defined geographic limits of the waterbody." 33 C.F.R. [sections] 329.5 (1999). See also 33 C.F.R. [sections] 2.05-25(a)(3)(i) (1999) (defining "navigable waters" for purposes of Coast Guard jurisdiction).

(74) See, e.g., Kelley ex tel. MacMullan v. Halladen, 214 N.W.2d 856, 861 (Mich. 1974) (expanding the Michigan definition of "navigable waters" to include those "suitable for public recreational use").

(75) At least one federal district court has explicitly rejected the reasoning of the recreational use test in the Commerce Clause context. See Loving v. Alexander, 548 F. Supp. 1079, 1086 n.7 (W.D. Va. 1982). However, one U.S. Supreme Court case suggests that recreational use could be used to determine navigability when determining state ownership of river bottoms. See United States v. Oregon, 295 U.S. 1, 23 (1934) (finding lake was not navigable when pleasure boaters had failed in attempting to use small boats on the lake). The Court's line of jurisprudence for purposes of determining ownership of river bottoms is wholly separate from its cases determining the reach of the Commerce Clause on the nation's waterways. See Baughman, supra note 60, at 1036-43. Thus, the "recreational use" definition of navigable waters does not apply in the Commerce Clause context.

(76) The Montello, 87 U.S. (20 Wall.) 430, 441 (1874).

(77) See George v. Beavark, Inc., 402 F.2d 977, 981 (8th Cir. 1968) (holding that float fishing on a stream does not render the stream navigable in fact).

(78) See Good Interview, supra note 18. According to Mr. Good, 13,000 Big Bend National Park visitors used canoes and rafts on the river in 1999. Id.

(79) United States v. Appalachian Elec. Power Co., 311 U.S. 377, 416 (1940) (emphasis added).

(80) E-mail from Lou Good (Apr. 17, 2000). Small boats with outboard motors are sometimes used to fish for catfish, but because there is some doubt about whether the fish are safe to eat, not much fishing takes place near the La Linda Bridge. Id.

(81) See id. (explaining when and where motorboats are allowed).

(82) The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1870).

(83) 402 F.2d 977 (8th Cir. 1968).

(84) Id. at 979; see also Smith v. Hustler, Inc., 514 F. Supp. 1265, 1269 (W.D. La. 1981) (finding a dammed lake, despite its large size, was not host to the customary modes of commerce, and stating that "[o]ne simply would not expect to see, and would not see, tugboats, barges, or any other type of commercial vessel on [this waterway].").

(85) See Kurie E-mail, supra note 14; Simon Interview, supra note 35; Good Interview, supra note 18; Spener Interview, supra note 1. The historical use test has proved very favorable to the federal government in asserting jurisdiction over American rivers. A survey of the case law reveals that if the government can establish a modicum of historical commercial use of a waterway, courts will usually find that the river is navigable. This standard has compelled government lawyers to scour local areas for elderly citizens or yellowed commercial and government documents that can recount even scattered use of waterways as channels of commerce. As a result, courts have declared rivers that are presently not feasible as channels of interstate commerce to be "navigable" as a matter of law because the government has demonstrated some distant and sporadic historical use. See, e.g., Economy Light and Power Co. v. United States, 256 U.S. 113 (1921) (finding navigability when a river was used by trappers and explorers just fourteen times over a one hundred and fifty year period); United States v. Utah, 283 U.S. 64 (1931) (finding navigability based on seventeen documented expeditions in a sixty year period); The Montello, 87 U.S. (20 Wall.) 430, 440-41(1874) (finding navigability based on evidence that the Fox River was explored by 1673 and used by fur trappers in the eighteenth century). Such a deferential standard is hard for the private party asserting non-navigability to overcome.

The author's limited resources preclude conducting the kind of extensive historical research for eighteenth or nineteenth century evidence of commercial use of the Rio Grande that would be necessary in a litigation setting. However, the presently available testimonial evidence of local residents indicates that the river has never been used for commercial purposes. See Kurie E-mail, supra note 14; Simon Interview, supra note 35; Good Interview, supra note 18; Spener Interview, supra note 1; Jackson Interview, supra note 19.

(86) See Redford Interview, supra note 48.

(87) 174 U.S. 690 (1899).

(88) Id. at 699.

(89) Id. at 698.

(90) Id. See also United States v. Appalachian Elec. Power Co., 311 U.S. 377 (1940).

(91) Rio Grande Dam & Irrigation Co., 174 U.S. at 691-92, 694.

(92) Id. at 698-99 (quoting Rowe v. Granite Bridge Corp., 38 Mass. (21 Pick.) 344 (1838)).

(93) United States v. Utah, 283 U.S. 64, 87 (1930).

(94) Kurie E-mail, supra note 14.

(95) See id, Good Interview, supra note 18; Simon Interview, supra note 35. The Summer of 2000 was the seventh year of drought in southern Texas. The river has been so low at some points that recreational use of the river upstream in Big Bend National Park has been limited to canoeing because the river has been too shallow even for rafting. Good Interview, supra note 18.

(96) See Kurie E-mail, supra note 14; Simon Interview, supra note 35; Good Interview, supra note 18. According to local residents, people have been known to cross the Rio Grande at many points using small boats, cars and trucks, burros, and on foot. Good Interview, supra note 18.

(97) See Good Interview, supra note 18.

(98) United States v. Appalachian Elec. Power Co., 311 U.S. 377, 413 (1940).

(99) Id.

(100) See United States v. Lopez, 514 U.S. 549, 559 (1995) (discussing the origin of substantial effects analysis).

(101) See 33 U.S.C. [subsections] 403-511 (1994 & Supp. V 1998).

(102) See United States v. New York Cent. R.R. Co., 252 F. Supp. 508 (D. Mass. 1965), aff'd, 358 F.2d 747 (1st Cir. 1966). The Coast Guard cited this case in its letter to NPCA requiring the removal of its bridge. Wachter Letter, supra note 4.

(103) New York Cent. R.R., 252 F. Supp. at 510.

(104) Id.

(105) Louisville Bridge Co. v. United States, 242 U.S. 409, 424-25 (1917).

(106) See, e.g., Central Rivers Towing, Inc. v. City of Beardstown, 750 F.2d 565, 570-71 (7th Cir. 1984) (finding submerged pier was a hazard to navigation); Southern Ry. Co. v. United States, 88 F.2d 31 (5th Cir. 1937) (finding bridge over Tombigbee River in Alabama was an obstruction because it had insufficient vertical clearance and width, making it difficult and dangerous for passage of 75-foot-wide towboats); Delta Transload, Inc. v. M/V Navios Commander, No. CIV. A.83-6154, 1988 WL 35027 at *5 (E.D. La. Apr. 8, 1988) (finding submerged buoy that became dislocated from its permitted placement and entangled with an anchor chain was an obstruction to navigation); United States v. Illinois Terminal R.R. Co., 501 F. Supp. 18, 21 (E.D. Mo. 1980) (finding that remains of a bridge were obstructions when water craft collided with two piers).

(107) See supra notes 79-80, 84, and accompanying text.

(108) Simon Interview, supra note 35.

(109) Id.

(110) Id.; Good Interview, supra note 18.

(111) Kurie E-mail, supra note 14.

(112) Redford Interview, supra note 48.

(113) Id.

(114) Id.

(115) See Truman-Hobbs Act, 33 U.S.C. [subsections] 511-524 (1994).

(116) 60 Fed. Reg. 20,900, 20,901 (Apr. 28, 1995) (emphasis added). See also 33 C.F.R. [sections] 116.20-.30 (1999) (setting forth procedure for determining whether Truman-Hobbs funds are available for a given bridge alteration project).

(117) NPCA estimates that removing its portion of the bridge could cost as little as $200,000, but may cost as much as $500,000. See Fayad Interview, supra note 18; Simon Interview, supra note 35.

(118) The private expenditure required to remove the bridge is quantifiable in dollars and cents. To re-create such a bridge would require years and millions of dollars to acquire the necessary legislation and permits. However, the potential social, economic, and diplomatic costs of destroying the bridge may be incalculable. See infra Part VI.

(119) See 33 U.S.C. [sections] 502(a) (1994) (referring to "insufficient" dimensions); supra note 33 (citing relevant language in section 502(a)).

(120) See supra notes 84-85 and accompanying text.

(121) In 1982, Congress substituted "Secretary of Transportation" for "Secretary of War" wherever it appeared in the Act. Coast Guard Authorization Act of 1982, Pub. L. No. 97-322, 96 Stat. 1583.

(122) Southern Ry. Co. v. United States, 88 F.2d 31, 33 (5th Cir. 1937) (emphasis added).

(123) 33 U.S.C. [sections] 502(a) (1994). The original version of the Rivers and Harbors Appropriation Act was passed in 1888 and read, "whenever the Secretary of War shall have good reason to believe that any railroad or other bridge now constructed, or which may hereafter be constructed, over any of the navigable waterways of the United States is an obstruction to the free navigation of such waters, by reason of insufficient height, width of span, or otherwise." Rivers and Harbors Appropriation Act of 1888, ch. 860, 25 Stat. 400, 424. The law was amended in 1890, adding "unreasonable" before "obstruction." Rivers and Harbors Appropriation Act of 1890, ch. 907, 26 Stat. 426, 453. The legislative history is silent as to the reasons for the minor changes.

(124) See supra notes 108-11 and accompanying text.

(125) 33 U.S.C. [sections] 502(a) (1994).

(126) Id.

(127) Southern Ry. Co., 88 F.2d at 34 (quoting United States v. Alford, 274 U.S. 264 (1927)).

(128) 33 C.F.R. [sections] 116.01(a) (1999).

(129) Id.

(130) 33 U.S.C. [sections] 502 (1994).

(131) 33 C.F.R. [sections] 116.01(b) (1999).

(132) 33 U.S.C. [sections] 502(a) (1994). Coast Guard regulations mirror this language, stating that a bridge can be determined to be an unreasonable obstruction to navigation "due to insufficient height or width of navigation span, or because of difficulty in passing through the draw opening." 33 C.F.R. [sections] 116.01(c) (1999).

(133) BLACK'S LAW DICTIONARY 517 (6th ed. 1990). See also Brogan v. United States, 522 U.S. 398, 403 n.2 (1999) ("Under the principle of ejusdem generis, when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration.").

(134) As a matter of speculation, "or otherwise" might include insufficient strength to bear crossing traffic, insufficient visibility due to insufficient lighting, color or dimensions, or some other defect in a bridge that has a direct effect on vessels attempting to pass under it.

(135) See H.R. REP. NO. 55-1826, at 2 (1899).

(136) See generally id. at 1-4.

(137) Rivers and Harbors Appropriation Act of 1899, ch. 425, 30 Stat. 1121-49.

(138) H.R. REP. No. 55-1826, at 2.

(139) See supra note 121 (explaining change from "Secretary of War" to "Secretary of Transportation").

(140) Rivers and Harbors Appropriation Act of 1899, [sections] 7, 30 Stat. at 1150.

(141) H.R. REP. NO. 55-1826, at 4.

(142) Rivers and Harbors Appropriation Act of 1899, ch. 425, [subsections] 19-20, 30 Stat. 1154-55.

(143) H. REP. No. 55-1826, at 4.

(144) 32 CONG. REC. 1350 (Jan. 1, 1900).

(145) An international boundary marker, approved by the International Boundary Water Commission, marks the international border at the halfway mark. See Spener Interview, supra note 1.

(146) The Mexican government has not said whether it will remove its half of the bridge. Pineda Interview, supra note 46.

(147) 32 CONG. REC. 1350 (1899).

(148) H. REP. NO. 55-1826, at 4 (1899).

(149) See id. (describing the importance of interstate and foreign commerce at the end of the nineteenth century).

(150) Rivers and Harbors Appropriation Act of 1899, ch. 425, 30 Stat. 1121.

(151) Id.

(152) See id.

(153) See THE NEW ENCYCLOPEDIA BRITANNICA, Rio Grande (15th ed. 1983) (stating that "accelerated erosion, silting, and sandbar formation have precluded navigation on the Rio Grande" since 1874).

(154) Press Conference of President Clinton and President Zedillo (May 6, 1997), available at http://www.pub.whitehouse.gov/uri-res/I2R?urn:pdi //oma.eop.gov.us/1997/5/6/11.text.1.

(155) North American Free Trade Agreement, Dec. 17, 1992, 107 Stat. 2057, 32 I.L.M. 605.

(156) Remarks by the President in Address to the People of Mexico (May 7, 1997), available at http:www.pub.whitehouse.gov/uri-res/I2R?urn:pdi //oma.eop.gov.us/1997/5/7/5.text.1.

(157) Southwest Border Economic Development Initiative (May 25. 1999), available at http:www.pub.whitehouse.gov/uri-res/I2R?urn:pdi //oma.eop.gov.us/1999/5/25/14.text.1.

(158) Good Interview, supra note 18.

(159) Id.

(160) See Pineda Interview, supra note 46; Simon Interview, supra note 35; Fayad Interview, supra note 18; Jackson Interview, supra note 19; Kurie E-mail, supra note 14; Good Interview, supra note 18.

(161) Good Interview, supra note 18.

(162) Dhillon Interview, supra note 30.

(163) Good Interview, supra note 18.

(164) See id.

(165) See Simon Interview, supra note 35; Fayad Interview, supra note 18. NPCA has hired a consultant, Grimble & Associates, to Investigate and promote the potential economic and cultural advantages of eco-tourism in the area. Mr. Grimble is an expert on border trade and infrastructure. After the Coast Guard granted its three-year extension to NPCA, Mr. Grimble undertook to inform the transportation, tourism, and law enforcement authorities about the opportunities for development in the area around La Linda.

(166) See Simon Interview, supra note 37; Fayad Interview, supra note 18.

(167) Schwarz and Schwarz, supra note 9, at 46.

(168) Kurie E-mail, supra note 14.

(169) David S. May, Tourism and the Environment, 14 NAT. RESOURCES & ENV'T 57, 57 (Summer 1999).

(170) See id.

(171) National Parks and Conservation Association, Park System Facts, at http://www.npca.org/exploreparks/parkfacts.html (last visited Nov. 18, 2000).

(172) May, supra note 169, at 57.

(173) See Patrick A. Shea, Finding the Stegnerian Compromise Between Conservation and Development, 19 J. LAND RESOURCES & ENVTL. L. 1 (1999).

(174) Good Interview, supra note 18.

(175) Id.

(176) The Village of Santa Elena, Mexico, at http://www.nps.gov/bibe/stelena.htm (last visited Nov. 18, 2000).

(177) The Village of Boquillas, Mexico, at http://www.nps.gov/bibe/boquilas.htm (last visited Nov. 18, 2000).

(178) See Good Interview, supra note 18 (explaining that because of Big Bend's remote location, visitors tend to stay longer than they might at national parks like Yosemite that are located nearer to large towns and cities).

(179) Id.

(180) May, supra note 169, at 57.

(181) Fayad Interview, supra note 18; Simon Interview, supra note 35.

(182) See May, supra note 169, at 57. The environmental impacts of tourism are very different from the environmental impacts of industrial development along the border. However, there appears to be little danger of the latter occurring in this region because it is so remote. See Good Interview, supra note 18; Simon Interview, supra note 35. In addition, the Rio Grande has been designated a Wild and Scenic River under the Wild and Scenic Rivers Act. 16 U.S.C. [sections] 1274(a)(17) (1994 & Supp. V 1998). As such, Congress has provided for the protection of the river, requiring that such rivers "shall be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations." 16 U.S.C. [sections] 1271 (1994). Although concerns about the environmental impacts of industrial development spurred by NAFTA and free trade run deep among environmentalists, see William J. Snape, What Will Happen to the Critters: NAFTA's Potential Impact on Wildlife Protection, 33 NAT. RESOURCES J. 1077, 1085-88 (1993), eco-tourism is seen as an opportunity to achieve the economic gains promised by free trade while avoiding degradation to the environment along the border. Simon Interview, supra note 35.

(183) See Resolution of Rotary District 5520 (May 3, 1997) (on file with author).

(184) National Parks Service, Partners in Protection of the Chihuahuan Desert, at http://www.nps.gov/bibe/mexareas.htm (last visited Nov. 18, 2000).

(185) Id.

(186) See id.

(187) Good Interview, supra note 18.

(188) National Parks Service, Partners in Protection of the Chihuahuan Desert, at http://www.nps.gov/i/bibe/mexareas.htm (last visited Nov. 18, 2000).

(189) See Good Interview, supra note 18; Simon Interview, supra note 35; Goodwin Interview, supra note 25; Jackson Interview, supra note 19.

(190) See Good Interview, supra note 18; Simon Interview, supra note 35; Goodwin Interview, supra note 25.

(191) NPS opposes the construction of a bridge within Big Bend National Park. Good Interview, supra note 18. Proposals to build a bridge in the park to Boquillas have been rejected. This makes sense considering the La Linda Bridge is already standing just five miles outside the park and was built at zero cost to the taxpayer. Building a new bridge equivalent to the La Linda Bridge probably cost about $2-3 million. Kreuzer Letter, supra note 8. In comparison, the cost of widening the existing bridge to two lanes would be only $300,000. Id.

(192) See generally May, supra note 169 (discussing the environmental impact of tourism and potential remedies).

(193) Good Interview, supra note 18.

(194) National Park Service, Big Bend National Park 2000 Fact Sheet, at http://www.nps.gov/bibe/facts.htm (last visited Nov. 18, 2000).

(195) Id.

(196) Good Interview, supra note 18.

(197) Id. Big Bend saw 340,000 visitors in 1998. National Parks Service, Big Bend National Park 2000 Fact Sheet at http://www.nps.gov/bibe/facts.htm (last visited Nov. 18, 2000). Mr. Good formerly worked at Hawaii Volcanoes National Park, and he states that it was not uncommon for Hawaii Volcanoes to see 350,000 visitors in just one month. Good Interview, supra note 18.

(198) Goodwin Interview, supra note 25.

(199) Letter from Dave Simon, National Parks and Conservation Association, to Tony Garza, Texas Secretary of State (Oct. 10, 1997) (on file with author).

(200) Goodwin Interview, supra note 25.

(201) Good Interview, supra note 18.

(202) Jackson Interview, supra note 19.

(203) Id.

(204) Id.

(205) Id.

(206) Good Interview, supra note 18.

(207) See id.

(208) Good Interview, supra note 18; Simon Interview, supra note 35; Goodwin Interview, supra note 25; Fayad Interview, supra note 18.

(209) Redford Interview, supra note 48.

PAUL COSTA, J.D. Candidate, Georgetown University Law Center, 2001; B.A., University of Pennsylvania 1996. I would like to thank Professor William Butler, Ms. Elizabeth Fayad, and the many people who agreed to be interviewed for this Comment. Additionally, I would like to thank my grandmother, Mary Spence, for providing some very early inspiration.