‘Forensic History’ May Be Key to Creek Access

Before spilling gently into Lake Okeechobee, Fisheating Creek meanders through some of the most hauntingly beautiful cypress swamp in America--a shady, moss-draped wilderness where otter play, wild boar and deer abound and an alligator lurks around every bend.

Matt Livingood and his friends grew up on the creek, climbing live oaks to hang rope swings over the swimming holes, camping out on its white-sand banks and even committing to its clear waters the remains of friends who died young.

“We scattered Donny’s ashes right there at the base of the big tree,” said Livingood as he paddled a canoe toward a long-limbed cypress that marks the final resting place of Donny Martin, 30, killed last year when his Jeep overturned on a rain-slicked road.

With about 6,000 residents, Glades County is one of the least-populated and poorest in Florida. There are no movie theaters, no shopping malls. For many, Fisheating Creek is both a cultural birthright and the center of social life.

“After work we just like to come out here on our four-wheelers, meet, talk, have a beer and just relax,” says Livingood, 22, who works construction.

Sixteen miles south of here, however, in the Glades County seat of Moore Haven, the rights of residents or anybody else to use the creek for recreation and spiritual renewal are being challenged. Lykes Brothers Inc., a $1-billion corporation with interests in hot-dog making, shipping, citrus and cattle, has tried to block public right of way to the creek, which passes through company land for most of its 53-mile course.

After Lykes strung barbed wire and felled some 80 trees across the creek to keep canoeists and campers out, the state and a coalition of environmental groups sued, contending that Fisheating Creek is a public waterway.

But none of the locals to whom the creek is so important will testify in this trial underway inside the brick courthouse that dominates Moore Haven’s downtown. Instead, the lawyers and expert witnesses are relying on “forensic history.”

Evidence entered into the trial so far includes 160-year-old maps drawn by the region’s earliest surveyors, the recollections of famed Seminole Indian leader Billy Bowlegs and the handwritten journal of Navy Cmdr. George Preble, who led an expedition up the creek as part of the Indian wars of 1842.

The only issue in this trial is the creek’s navigability in the year 1845, when Florida was admitted to the union. If the creek was then “a waterway capable of being used as an artery of trade or travel in its ordinary and natural condition,” then it is navigable by law and must be open to the public.

“You have to put yourself in the place of an 1845 settler, a subsistence farmer, growing what he needed for his family, trapping raccoon, otter and alligator, selling the hides at trading posts in Palmdale and Venus,” said David Guest, a Sierra Club Legal Defense Fund attorney serving as lead counsel for the plaintiffs. “Clearly, Fisheating Creek was the highway of Glades County by which passengers and freight were carried.”

But Lykes attorney Charles Pittman told jurors that the creek never was navigable, arguing the waterway is little more than “a series of pothole lakes connected by swamps and marshes.”

Pittman began the defendant’s case with geotechnical engineer Leslie L. Bromwell, who introduced a 1989 videotape that shows a dry creek bed, a stretch of the waterway through Cowbone Marsh completely occluded by vegetation and obstructive sandbars. After studying old maps and diaries, Bromwell testified that Fisheating Creek never has had enough depth and predictable flow to support commercial watercraft.

Guest, however, urged jurors to forget river-style vessels. Instead, think dugout cypress canoes with inch-deep draws, portability and the passage of time during which man-made canals and floodgates have influenced the development of sandbars and choking vegetation.

This is not the first time Lykes, which owns more than two-thirds of Glades County, has been in court after blocking access to the creek in 1989. After the U.S. Army Corps of Engineers declared the creek a navigable waterway in 1990, the company won a reversal in federal district court. That reversal was upheld on appeal in 1995.

The creek now remains open to residents, day-trippers or those from around the country who come to fish, camp and canoe.

Hendry, whose family has lived in the area for generations, concedes that some controls are necessary to protect Fisheating Creek from human carelessness. He proposes a state park be created.

Lykes has not announced its intentions if the company prevails at trial. But attorney Buddy Blain did indicate that personal injury suits aimed at the company were a factor in the decision to close off the creek several years ago.

Guest, who has litigated navigability issues on other state waterways, said he believes Lykes wants to bar public access to the creek chiefly to preserve the value of lucrative hunting leases granted to private groups.

“Creeks like these are pathways ingrained into our consciousness as well as into the earth. They are indelibly public. And even after the navigation era has ended, they remain the spiritual connection to nature,” Guest said.