Lykes Bros., Inc. v. U.S. Army Corps of Engineers, 93-3179

• Decision Date: 20 September 1995
• Docket Number: No. 93-3179,93-3179
• Citation: 64 F.3d 630
• Parties: , 26 Envtl. L. Rep. 20,157 LYKES BROS., INC., a Florida corporation, Plaintiff-Appellee, v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 630

64 F.3d 630

1996 A.M.C. 302, 26 Envtl. L. Rep. 20,157

LYKES BROS., INC., a Florida corporation, Plaintiff-Appellee, v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendant-Appellant.

No. 93-3179.

United States Court of Appeals Eleventh Circuit.

Sept. 20, 1995.

Douglas Molloy, Asst. U.S. Atty., Ft. Myers, FL, Vicki L. Plaut, David C. Shilton Charles W. Pittman, Ted R. Manry, III, Susan W. Fox, Harold D. Oehler, L.M. Buddy Blain, Tampa, FL, for appellee.

Dept. of Justice, Env. & Natural Resources Div., Washington, DC, for appellants.

Appeal from the United States District Court for the Middle District of Florida.

Before COX, Circuit Judge, FAY, Senior Circuit Judge, and CARNES ^*, District Judge.

COX, Circuit Judge:

INTRODUCTION

Lykes Bros., Inc. ("Lykes") brought this civil action pursuant to 5 U.S.C. Sec. 704 against the U.S. Army Corps of Engineers ("Corps") seeking to review and set aside the Corps' determination that Fisheating Creek in Glades County, Florida, is a navigable water of the United States from its mouth at the western shore of Lake Okeechobee to the bridge at State Road 731 near Venus, Florida, some 30 miles upstream. Lykes also sought a declaratory judgment determining that the creek is not a navigable water of the United States. After a seventeen-day trial, the district court reversed the Corps' determination, concluding that Fisheating Creek is navigable only for several miles, from its mouth at Lake Okeechobee to Fort Center, Florida. Lykes Bros., Inc. v. U.S. Army Corps of Engrs., 821 F.Supp. 1457 (M.D.Fla.1993). The Corps appeals, contending that the district court's findings of fact are clearly erroneous and that the district court misapplied the governing law. We affirm.

I. BACKGROUND

Fisheating Creek is a nontidal freshwater waterway in southcentral Florida. The creek begins just south of Hog Island Hammock in Highlands County, and runs south and east about 30 to 40 miles through Glades County. ¹ The creek flows through Cowbone Marsh and then through Fort Center before entering Lake Okeechobee near the community of Lakeport. A significant portion of Fisheating Creek flows through lands owned by Lykes. According to the Corps, the public had full access to Fisheating Creek until 1988. Then, Lykes felled approximately 80 trees at various portions of the creek to block public access, posted "no trespassing" signs, and erected barbed wire fences and gates across the creek in several places.

The State of Florida sued Lykes in federal district court to compel removal of the trees and fences under the Rivers and Harbors Act, 33 U.S.C. Sec. 403, which generally prohibits the obstruction of navigable waters. ² The district court dismissed the action, holding that the State must first pursue administrative remedies, such as a determination of navigability by the Corps and subsequent administrative enforcement of Sec. 403.

The State then sued the Corps in federal district court to compel the Corps to make a navigability determination. In response, the Corps prepared a report of findings in which it concluded that Fisheating Creek is a navigable water of the United States between Lake Okeechobee and the bridge over State Road 731 near Venus, Florida. The Corps' action led the State to dismiss its suit. After the Corps' finding of navigability, Lykes took down its fences, removed the trees, and filed a permit application with the Corps under 33 U.S.C. Sec. 403 to maintain fencing and operable gates at two crossings along the creek. Lykes then sued the Corps in federal district court, seeking review of the Corps' navigability determination. The Corps has suspended action on the permit application until after resolution of this litigation.

Lykes moved for a trial de novo in district court. ³ The court granted the motion, held a seventeen-day trial, and concluded that Fisheating Creek is navigable only to Fort Center, a few miles upstream from its mouth. The Corps appeals the district court's judgment, asserting that the court's factual determinations are clearly erroneous, and that the court misapplied the applicable law.

II. ISSUES ON APPEAL

The Corps raises two issues on appeal. The first issue is whether the district court's factual findings are clearly erroneous. The second issue is whether the district court applied the appropriate legal standard to its determination of navigability.

III. STANDARDS OF REVIEW

This court reviews a district court's factual findings for clear error, and reviews the application of law to those facts de novo. United States v. Harrell, 926 F.2d 1036, 1039 (11th Cir.1991). For a factual finding to be clearly erroneous, this court, after reviewing all of the evidence, must be "left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). ⁴

IV. DISCUSSION

A. Relevant Considerations

A waterway is regarded as "navigable water of the United States" within the meaning of Sec. 10 of the Rivers and Harbors Act, 33 U.S.C. Sec. 403, if it is used, or is susceptible of being used, in its ordinary condition, as a highway for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. United States v. Harrell, 926 F.2d 1036, 1038-39 (11th Cir.1991); Hardy Salt Co. v. Southern Pac. Transp. Co., 501 F.2d 1156, 1167 (10th Cir.) (citing The Daniel Ball, 77 U.S. (10 Wall.) 557, 563, 19 L.Ed. 999 (1871)), cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974). Thus, the waterway must form, either by itself "or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water." The Daniel Ball, 77 U.S. (10 Wall.) 557, 563, 19 L.Ed. 999 (1871).

Once a waterway is found to be navigable, it remains so. Therefore, if a waterway at one time was navigable in its natural or improved state, or was susceptible to navigation by way of reasonable improvement, it retains its navigable status even though it is not presently used for commerce, or is presently incapable of use because of changed conditions or the presence of obstructions. Harrell, 926 F.2d at 1039 & n. 7 (citing United States v. Appalachian Elec. Power Co., 311 U.S. 377, 408, 61 S.Ct. 291, 299, 85 L.Ed. 243 (1940); 33 C.F.R. Sec. 329).

Fisheating Creek empties into Lake Okeechobee. Until the late 1880s, no navigable water passage existed between Lake Okeechobee and either the Atlantic Ocean or the Gulf of Mexico. Fisheating Creek's only link to interstate commerce lies through Lake Okeechobee. Thus, it could not be navigable as a matter of law before the late 1880s, whether or not internally navigable, because no water route linked the creek with other states or countries.

The parties agree that Cowbone Marsh has been occluded from at least 1940. Lykes contends that Cowbone Marsh has always presented a barrier to travel on Fisheating Creek. The Corps, on the other hand, argues that a channel existed through Cowbone Marsh through 1929, disappearing sometime before 1940. Because it is uncontroverted that Cowbone Marsh has blocked travel on Fisheating Creek since at least 1940, and because the creek had no water link to interstate commerce until the late 1880s, the critical period in this case is between the late 1880s and 1940. In reviewing the district court's factual findings and its application of law to those findings, we are concerned with whether Fisheating Creek was susceptible to commerce during that period.

B. The District Court's Factual Findings

1. Cowbone Marsh

The centerpiece of this litigation has been Cowbone Marsh, which is located some six miles, as the crow flies, from the mouth of the creek at Lakeport. The district court found that Cowbone Marsh "has been a non-navigable marsh for hundreds of years, without any defined or navigable channel." Lykes Bros., Inc., 821 F.Supp. at 1461 (Finding 31). The Corps contends that the district court clearly erred in finding that Cowbone Marsh had always been a barrier to navigation in Fisheating Creek. The Corps argues that certain evidence clearly shows that Cowbone Marsh was once navigable.

The Corps points first to a map prepared by George Preble, who led a military exploratory expedition up Fisheating Creek in 1842. The Corps contends that Preble's map indicates that a channel existed through Cowbone Marsh because Preble drew a solid line indicating a channel through what appears on the map to be Cowbone Marsh. Therefore, the Corps contends that Preble's map supports a finding of navigability.

However, as the district court noted, Preble's account of his journey up Fisheating Creek does not necessarily support a finding of navigability. Preble proceeded upstream from Fort Center, through Cowbone Marsh, to what is now referred to as the Sand Lake area. Preble reported that on his way up the creek, when the party reached what was probably Cowbone Marsh, they proceeded with great difficulty, pushing the canoes through the weeds, and hauling the canoes over two troublesome places. On the return trip through what was probably Cowbone Marsh, the Preble party had little difficulty with the haulovers; however, after the two haulovers, they had to search for a significant length of time to find the creek.

The district court found that this account supported a finding that Cowbone Marsh was not navigable in 1842. Although we recognize that navigability is not destroyed by occasional obstructions or portages, Economy Light & Power Co. v. United States, 256 U.S. 113, 122, 41 S.Ct. 409, 412, 65 L.Ed. 847 (1921), the district court did not clearly err in concluding that Preble's account shows that travel through Cowbone Marsh was very difficult in 1842. Moreover, we note that Preble's expedition took place in 1842, over 40 years before Lake...