Florida Conservationists File Sunshine Lawsuit over Fisheating Creek Plan

Tallahassee, FL —

Earthjustice today filed a Government-in-the-Sunshine suit against the Florida Fish and Wildlife Conservation Commission because the agency illegally held closed-door meetings to craft a plan which would cut off the public’s boating access to part of Fisheating Creek in Glades County.

Fisheating Creek. (Tom Turner)

The state’s ill-advised plan is to build roads through wetlands and dump 50 million pounds of sand into Fisheating Creek to permanently block the public navigation channel.

“It’s unconscionable to see a state agency—which runs on our tax dollars—illegally bar the public from meetings which should be public. It’s even worse when the state agency is behind closed doors hatching a plan to let a politically powerful agricultural company illegally shut off ordinary people’s rights to run their boats down a public waterway,” said Earthjustice attorney David Guest.

Earthjustice filed suit in Leon County’s Second Judicial Circuit on behalf of Save Our Creeks and the Environmental Confederation of Southwest Florida.

Those two groups were part of a landmark 1997 suit about Fisheating Creek, which was one of the most important victories for the public’s right to access on Florida waterways. Agribusiness giant Lykes Brothers had fenced the creek’s channel off so boaters could no longer go down it. Conservationists sued and won, when a jury concluded that Florida law provides that the navigation channel through Fisheating Creek should rightly be open to the public. The public’s right to access on Florida waterways dates back hundreds of years, when the state’s waterways were its only public “highways.”

As part of that 1997 settlement, the FWCC agreed to keep Fisheating Creek’s channel open for public access. But the agency ignored its duty, and, instead, let a portion of the creek fill in with exotic vegetation and overgrowth.

“The problem here is that the FWCC didn’t do its job keeping the navigation channel open for the public,” Guest said. “They were required to do it, they had money appropriated by the state Legislature to do it, but they just didn’t.”

In 2008, conservationists threatened to sue unless the FWCC performed its duty to keep the creek open to the public. The FWCC at that point brought in an “Agitator,” a boat fitted with a blade that’s commonly used to clear boat channels in vegetation-choked waterways throughout the state.

Lykes Brothers complained to the U.S. Army Corps of Engineers, and the Corps referred the matter to the U.S. Environmental Protection Agency. The EPA expressed concern that removing the vegetation was causing a new water flow pattern which drained too much water out of the creek and marsh. The EPA then asked the state to come up with a solution to keep more water in the marsh and creek. Possible solutions included earthen dams and weirs, which would keep the creek open so people could run their boats up and down the public waterway.

That’s when the FWCC convened a technical working group which examined a number of alternatives, and shut the public out. A representative of the public tried to attend one meeting, but the closed-door committee directed her to leave.

The FWCC then announced its preferred plan: to build roads and staging areas across the marsh and then backfill the navigation channel with 50 million pounds of sand.

“The FWCC’s plan is a shameless giveaway to Lykes Brothers and a kick in the gut to the public. People have a legal right to use this waterway and they also have a right to give input on the state’s plan to spend their tax dollars,” Guest said.

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