Saturday, March 24, 2018

Column: Up Fisheating Creek without a paddle

It took 10 years, three judges, some old maps, old journals and testimony from old-timers who used to float the stream's amber waters all the way to Lake Okeechobee, but in 1999, a court found that Fisheating Creek was not private property: It belongs to all of us.

But the way things go in Florida, an environmental victory — even one won in a jury trial — could prove no more permanent than a beach hut in a hurricane, especially when the Department of Environmental Protection and the Florida Wildlife Conservation Commission seem determined not to live up to their names. Fisheating Creek is once again the site of a battle over access and maintenance, once again embroiled in recriminations and lawsuits.

Thlothlopopka-Hatchee, "the river where fish are eaten" in Muskhogean, is one of the wildest and loveliest waterways on the peninsula, meandering through savannahs, swamps and freshwater marshes, past cypress trees older than Shakespeare, home to panthers, black bears and sandhill cranes.

Native people lived on the banks of the creek for nearly 2,000 years, creating monumental earthworks and mounds 200 years before the first cathedrals were built in Europe. "Fisheating Creek can only be talked about in superlatives," says the writer and naturalist Susan Cerulean. "If any one place can be called the wild heart of Florida, Fisheating Creek is it."

In the 1999 settlement with the state, big landowners Lykes Brothers, who had been claiming the creek, finally agreed it was indeed a public waterway. Under Florida's Constitution (and according to ancient common law principle), any waterway navigable in 1845 when Florida became a state belongs to the people. One piece of evidence was the 1842 account of an expedition up the creek in 30-foot dugout canoes. A detailed Army Corps of Engineers map from the '20s was another.

For its part, the state agreed to pay Lykes more than $46 million for 18,000 acres along the creek and conservation easements on other sensitive lands. The state was also supposed to maintain the boat channel and protect the creek as part of Florida's natural heritage. That didn't happen.

David Guest, who tried the original 1989 case against Lykes and negotiated the settlement on behalf of then-Attorney General Bob Butterworth, says, "They were required to do it, they had money appropriated by the state Legislature to do it, but they failed."

Despite the settlement, the creek was neglected. The channel was choking in water hyacinths and blocked by tussocks (floating clumps of vegetation) and fallen trees. By 2008, exasperated environmental groups were threatening to sue. The FWCC belatedly hired a contractor who drove a "cookie cutter" boat, similar to the ones used to clear channels in lakes and rivers all over the state, down the Cowbone Marsh section of the creek.

Lykes didn't like where cookie cutter cut, complaining that the channel restoration project was, in fact, illegal dredging in a wetland. Lykes' attorney Cari Roth charges that it wasn't just vegetation that got chopped: FWC's contractor cut into the muck layer, allowing too much water to drain out of the marsh and too much debris to flush out downstream. DEP has scolded FWC, saying that those tussocks they shredded weren't tussocks at all; they were, in fact, mud.

This would be the same DEP that recently tried to convince a judge that dry pine uplands were actually wetlands. DEP has ordered a chastened FWC to fill in the channel with 3,000 dump truck-loads of sand excavated from nearby. "This is the simplest, easiest, best way," says Cari Roth. "Lykes is donating the sand."

David Guest, currently managing attorney at the Earthjustice Legal Defense Fund, is unimpressed: "In the normal course of things, you don't construct sand mines on conservation lands."

Guest has filed a lawsuit on behalf of environmentalists to stop the project, asserting that you don't mitigate damage with more damage, especially by building roads through wetlands the state is supposed to preserve.

The FWC did not respond to phone calls, but earlier it had issued this written statement to a Miami Herald inquiry: "This is a complex issue spanning several state and federal agencies and a number of unresolved legal actions. The FWC stands ready to begin the remediation process once we receive direction and clearance from the appropriate permitting agencies."

By now, you may think you've fallen down the rabbit hole. In 1989, the state sued to protect public ownership of sovereign submerged lands. Now the state is getting sued for violating the principles it once upheld by the lawyer who took on Lykes for the same sort of malfeasance.

Curiouser and curiouser, you might just catch a whiff of personal feud in the long fight over Fisheating Creek. Lykes Brothers prompted the 1989 lawsuit by putting up a gate, felling 80-odd trees and stringing barbed wire across the creek. They said they were worried about vandalism. The locals, who'd always fished the creek, held weddings by the creek and got baptized in the creek, were outraged: They regarded the creek as part of their heritage.

That same year, Lykes also committed what state newspapers called "one of the biggest environmental crimes in Florida history," illegally cutting 22 miles of canals through sensitive wild areas near Fisheating Creek, depriving marshes and wetlands of necessary water — similar to what Lykes is now charging the state with doing in Cowbone Marsh. The South Florida Water Management District cried foul: Lykes was fined $680,000 and ordered to fill in the illicit canals.

Both Lykes and the environmentalists agree that if FWC had done its job maintaining the channel in the first place, the current unpleasantness could have been avoided. But that's about all they agree on. Cari Roth says Lykes wants "a navigable channel that's environmentally good" and that David Guest, the environmentalists' lawyer, is "defending an environmental travesty."

Guest replies, "The proposal is to build roads across a marsh and fill the channel with sand. That's not environmental protection — it's environmental perversion."

You wonder if the state means to destroy Fisheating Creek to save it, and if every environmental battle has to be fought over and over in Florida. As the Red Queen might have said if she'd retired to Florida from Looking-Glass Land, "Here, you see, it takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!"

Diane Roberts is author of "Dream State," a memoir of Florida. She teaches at Florida State University. She wrote this exclusively for the Tampa Bay Times.


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