Lykes Bros., Inc., a Florida Corporation v. United States Army Corps of Engineers

Citations: 64 F.3d 630; 26 Envtl. L. Rep. (Envtl. Law Inst.) 20157; 1995 U.S. App. LEXIS 26763; 1995 WL 521150Docket: 93-3179

Court: Court of Appeals for the Eleventh Circuit; September 20, 1995; Federal Appellate Court

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Lykes Bros. Inc. initiated a civil lawsuit against the U.S. Army Corps of Engineers under 5 U.S.C. Sec. 704, challenging the Corps' determination that Fisheating Creek in Glades County, Florida, qualifies as a navigable waterway from Lake Okeechobee to a bridge at State Road 731, approximately 30 miles upstream. Lykes sought a declaratory judgment asserting that the creek is not navigable. Following a seventeen-day trial, the district court found that Fisheating Creek is only navigable for a limited distance, specifically from its mouth to Fort Center, Florida, and reversed the Corps' ruling. 

The Corps appealed, arguing that the district court's factual findings were erroneous and that the law was improperly applied. The background details describe Fisheating Creek as a freshwater waterway flowing through lands owned by Lykes, who obstructed public access by cutting down trees and erecting barriers after 1988. Subsequently, the State of Florida attempted to compel Lykes to remove the obstructions under the Rivers and Harbors Act but was required to first seek administrative remedies, leading to a navigability determination by the Corps. The Corps eventually concluded that the creek was navigable, prompting Lykes to remove the barriers and apply for a permit to maintain certain structures. The district court's ruling, which the Corps now appeals, affirmed Lykes' position on the limited navigability of the creek.

The Corps raises two issues on appeal concerning the district court's findings: the first is whether these factual findings are clearly erroneous, and the second is whether the district court applied the correct legal standard for determining navigability. The court reviews factual findings for clear error and applies the law de novo. A finding is clearly erroneous if, upon reviewing all evidence, the court has a firm conviction that a mistake has occurred.

A waterway qualifies as "navigable water of the United States" if it can be used as a highway for commerce. Once a waterway is deemed navigable, it retains that status even if it is not currently used for commerce or is obstructed. The case specifically examines Fisheating Creek, which connects to Lake Okeechobee; prior to the late 1880s, there was no navigable passage between the creek and the Atlantic Ocean or Gulf of Mexico, thus it could not be legally considered navigable.

The parties agree that Cowbone Marsh has blocked travel on Fisheating Creek since at least 1940. Lykes asserts that Cowbone Marsh has always impeded navigation, while the Corps argues that a navigable channel existed through 1929. The critical timeframe for assessing navigability is between the late 1880s and 1940. The district court found Cowbone Marsh to be a non-navigable barrier, a conclusion the Corps disputes, claiming evidence shows it was once navigable.

The Corps references a map by George Preble from his 1842 expedition which suggests a navigable channel through Cowbone Marsh, indicated by a solid line. However, Preble's account reveals significant difficulties in traversing the marsh, including pushing canoes through weeds and hauling them over obstacles, leading the district court to conclude that Cowbone Marsh was not navigable at that time. While navigability isn't negated by occasional obstructions, the court determined that Preble's experiences demonstrated considerable travel challenges. Additionally, Preble's expedition predates the connection of Lake Okeechobee to the Atlantic and Gulf by over 40 years, diminishing the relevance of his findings.

The Corps also cites an 1871 land survey by J.C. Tannehill which depicts a channel through Cowbone Marsh. However, Tannehill's survey included "meander" readings on one side only, suggesting he deemed Fisheating Creek nonnavigable, as surveyors were required to meander both banks for navigable rivers. The Corps further argues that Tannehill’s use of triangulation to measure the creek's width indicates a navigable channel. However, the district court did not address this argument, and the record suggests that triangulation could be used for various reasons, including wide channels filled with obstacles, which does not inherently imply a well-defined, deep channel.

The Corps argues that various historical maps, including a 1929 Corps survey, a 1926 Glades County map, an 1899 Atlas Map of Florida, and an 1856 military map, indicate a navigable channel through Cowbone Marsh, with Fisheating Creek depicted as a stream or river. However, the district court dismissed the 1929 survey, citing its focus on flood control and finding that its contour lines did not reveal a defined channel. This conclusion by the court was deemed not clearly erroneous. Although the other maps are relevant, they must be assessed alongside all evidence.

The Corps also presented expert testimony suggesting a navigable channel existed in Cowbone Marsh. The district court noted that the expert indicated three feet of muck throughout the marsh, implying long-term vegetation, and found no evidence of a channel for hundreds of years from soil borings. While some parts of the expert's testimony supported the Corps' position, others aligned with the court's findings, leading to no mischaracterization by the district court.

Additionally, the court considered testimony from local residents asserting that no navigable channel ever existed through Cowbone Marsh and that Fisheating Creek was nonnavigable for commerce upstream from Fort Center. Witnesses from as early as 1919 recalled conditions from the early 1920s. A 1915 Corps investigation labeled Cowbone Marsh as "impassable" and noted a lack of commerce on the creek. Aerial photographs from 1940 to 1990 revealed that Cowbone Marsh remained unchanged and nonnavigable, further supporting the court's findings.

For a reviewing court to determine that a district court clearly erred in its factual findings, it must be convinced a mistake was made after examining the entire record. Upon review, significant evidence supports the conclusion of nonnavigability for Cowbone Marsh from the late 1880s through 1940 and beyond, affirming that the district court did not clearly err in its findings.

The Corps disputes several factual findings made by the district court concerning the navigability of Fisheating Creek, asserting that the findings are clearly erroneous or that their consideration constituted an error. The Corps argues that the district court incorrectly interpreted the absence of Fisheating Creek in the Coast Guard's publication, "Bridges Over Navigable Waters," as evidence of non-navigability, claiming the publication's purpose is to list bridges rather than navigable waters. However, the court noted that the Corps and the Coast Guard's decision not to require permits for bridges over the creek, based on its non-navigability status, is relevant. A Coast Guard memorandum indicated that Fisheating Creek lacks characteristics of substantial commercial navigation and has not been recognized as a navigable waterway. 

Further, the Corps challenges the weight the district court gave to Florida's treatment of Fisheating Creek. The court observed that all land along the creek has been deeded to private interests without public reservations, and public access was often restricted. The Corps contends that Florida has always recognized the creek as a public waterway, asserting that the absence of reserved public rights in deeds does not affect the state's title to navigable waters. The court maintained that Florida's actions, including leasing the creek and restricting access, suggest the state may not have treated it as navigable. Therefore, the district court's considerations of these factors were deemed appropriate and not erroneous.

The Corps contests the district court’s consideration of a report by John Adams, Chief of the Corps' Regulatory Division, which stated that Fisheating Creek was not a navigable waterway. The Corps argues that the District Engineer's more comprehensive investigation, which determined that the creek is navigable, should have taken precedence. However, the admissibility of Adams' report was not challenged on appeal, and the district court’s consideration of it was deemed appropriate.

The court concluded that it did not err in its factual findings regarding the navigability of Fisheating Creek, noting that while evidence exists supporting the creek's navigability between Lake Okeechobee and State Road 731, substantial contrary evidence also exists. As such, factual disputes are within the trial court’s jurisdiction to resolve.

The Corps’ legal challenge relies on the assumption that the district court's factual findings were erroneous. Since the court's factual findings were upheld, the Corps' legal challenge to the court's conclusions was undermined. Ultimately, the district court’s determination that Fisheating Creek upstream of Fort Center is not a navigable water body under federal jurisdiction was affirmed, with the judgment being upheld by Judge Julie E. Carnes. Additional notes clarify that distances along the creek are approximate due to its winding nature, and highlight legal standards regarding navigable waters under 33 U.S.C. Sec. 403.