Fisheating Creek flows into Lake Okeechobee. (Photo: Grant Steelman/Florida Fish & Wildlife Conservation Commission.)
Attorney Monica Reimer represented denizens of Old Florida in the only jury trial in Earthjustice history. As she recalls here, it was them against chainsaws and barbed wire in a fight over the soul of south Florida's Fisheating Creek.
When you become a lawyer no one tells you that witnesses won't tell you they can't read when you ask them to review and sign an affidavit. No one tells you that sometimes you'll have to wait while the witness sweeps a five-foot snake out of the kitchen. And no one tells you about the gift a witness gives when suddenly you see the place you are trying to save through the witnesses' eyes.
When the Fisheating Creek case began I didn't know that Fisheating Creek existed. I didn't know Glades County existed. All I knew about Lykes Brothers was that they made hot dogs and ads with cute kids and that "when it's Lykes, it's gone." The slogan took on a new meaning when Lykes Brothers ranch hands chain-sawed 40 cypress trees across Fisheating Creek, the only wild tributary of Lake Okeechobee, and posted a three-foot-by-four-foot bright yellow sign that read: "No Trespassing. Fisheating Creek is a non-navigable stream. Trespassers will be prosecuted."
The question of "navigability" asks whether a stream was locally useful for the conduct of waterborne trade or travel in 1845, the date of Florida's statehood. If Lykes was right, then the company had the right to bar all public access to the creek and the barbed wire could stay. If Lykes was wrong, the public had the right to use the creek for swimming, boating, fishing, and all other lawful purposes. The barbed wire would come down. Earthjustice filed a lawsuit on behalf of citizens of Glades County challenging Lykes's efforts to fence off the creek. Our task was to prove Lykes wrong—and that meant finding people who had boated on the creek—the older the better.
We arrived in Glades County on a June day to begin our search for witnesses to testify about navigation on the Creek. Karen McMillan and I wore stylish dresses, panty hose, makeup, and high heels. It was 98 degrees. Our motel—the county's only motel—had sulfur-yellow water, red carpets, and a sign on the mirror that forbade the cleaning of fish in rooms but if you did the fine was $5.00.
Our beginning efforts at finding witnesses ranged from unsuccessful (they worked for Lykes), unnerving (the nudist drug dealer whose automatic rifle leaned against a wall next to a table with an incessantly ringing telephone), to dreadful (the 80 year old gentleman who received a phone call an hour before we arrived informing him he had cancer and who needed to talk about everything except boating on the Creek).
Weeks of futility culminated in a midnight call from me to David Guest, the Florida office's managing attorney. I explained the facts of life in Glades County. The only people willing to talk to us were outlaws (a real term in Glades County), and I wasn't sure what the judge was going to think of a witness who'd knifed a cop and served five years in Attica.
Lykes finally put us out of our misery. It breached a deal for a campground lease and threatened worse if the lessee talked to us. The lessee's father, Pete Hendry, who had hung up the phone the first time I called, called us. Now it was about family. We were invited out to Palmdale for a Sunday dinner. Our mission was the subject of the blessing. Phone calls were made, and men began to drift in, photographs in hand.
The problems, however, didn't end. We just developed new ones. All we wanted were simple affidavits describing how the witnesses had used the creek for trade and travel. An example of what we got was a dramatic 1932 trip up Fisheating Creek, in a stolen boat, at midnight, while drunk, to go poaching. This was not exactly the sort of evidence I'd seen used in other navigability cases.
What they finally got us to understand was that the reason they were still on the creek in the 1930s was the Depression. Palmdale at its biggest had been a railroad stop, a trading post down by the creek, a four-room hotel, a post office, and a Main Street. The Depression hit hard. Pete Hendry's father, gassed in the Great War, earned a living as a professional hunter. Pete poled his father's skiff for miles up and down the creek at night navigating by the outline of the cypress trees against the sky. If it walked, flew, slithered, hopped, or swam it was hunted, skinned, and eaten or sold. The shipping tags Pete's father used to identify the types of skins he had packed had a check box for skins of house cats. Boys began hunting on the creek when they were eight. Not that it was all work. They cooled off in the creek's swimming hole that was the site of political rallies on Saturday and baptisms on Sunday. But for ten years the creek meant survival. Then the war came.
With one night left before they shipped out to boot camp, Bill Lanier (who'd told us the story of the midnight boat trip) and three of his boyhood friends did what Palmdale boys did—they walked far down into the creek swamp, built a small fire, just big enough to warm a pot of coffee, smoked their cigarettes, and talked far into the night. At dawn they kicked out the fire, returned home and packed. Two never came back.
We began the case thinking we were saving a place for people to visit—tall green cypress trees reflected in dark tannin-stained water that shaded to amber across white sand bars—snail kites, black and white, wheeling against the blue hemisphere of a Lake Okeechobee sky. But by the time the case was over we understood what Earthjustice was really doing—we were saving a place that for 60 years our witnesses had carried like buried treasure of the mind. They had given us their sense of place. And when we told the jurors, they listened. And the barbed wire came down.