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Time To Slay Another Dragon At Fisheating Creek

As everyone involved in the environmental movement knows, we’ve got to stay vigilant with each passing year to make sure that that our victories don’t get undone.

As everyone involved in the environmental movement knows, we’ve got to stay vigilant with each passing year to make sure that that our victories don’t get undone.

So, on Oct. 2, the Florida office of Earthjustice filed suit to protect a landmark citizen’s victory that we won in a jury trial 15 years ago. Once again, we find ourselves sharpening swords to slay a dragon that we thought we’d already vanquished. And the newest move by the state has an Alice-in-Wonderland quality—the upside-down world.

In a nutshell, Florida’s Department of Environmental Protection is ordering a plan to build roads through wetlands—which, of course, it is supposed to be protecting—then using several hundred dump trucks full of sand provided by a giant agribusiness corporation to block a waterway which unquestionably belongs to the public. The corporation—the Lykes Brothers—owns most of the land along the waterway in question, a wild and scenic subtropical jewel called Fisheating Creek. The creek is in the southwest part of the state near the Everglades, and it is a tributary of Lake Okeechobee.

To add insult to injury, the state plans to fund this scheme with $3 million of taxpayer money to wreck wetlands and block us from boating and fishing on our own creek.

The fight to maintain the public’s right to use Fisheating Creek began in 1989, when Lykes felled cypress trees across the creek’s navigation channel and posted “No Trespassing” signs, claiming that the creek was not navigable. After several rounds of litigation, a jury concluded that Fisheating Creek is navigable, effectively ordering Lykes to stop blocking boaters from using the creek. Much of the dispute concerned whether there was an historic, navigable channel in the cypress swamps and marshes formerly used by boaters.

The state of Florida was with us in the battle to keep public access to Fisheating Creek. But the current administration under Gov. Rick Scott is hell-bent on reversing course on behalf of the Lykes Brothers corporation.

In our Oct. 2 filing in the state’s Division of Administrative Hearings, we are representing Save Our Creeks and the Environmental Confederation of Southwest Florida. Those two groups were plaintiffs in the lengthy legal battle with Lykes that ended with the landmark 1997 victory for boaters’ rights in Florida.

The current controversy started several years ago when Lykes claimed that the state was improperly handling a marsh channel restoration project. After intense lobbying by Lykes, the Florida DEP reversed itself and announced the crackpot plan build roads and “staging areas” across the marsh so that several hundred dump trucks can transport sand—supplied by Lykes—into the creek bed.

“The state’s plan is an outrage,” said our client, Rhonda Roff of Save Our Creeks. “Are they seriously thinking that the public will buy their argument that the best way to protect this wild and scenic waterway is to fill it in with 65 million pounds of sand?”

We’ll likely go to trial in this case early next year. If you’d like to see what Fisheating Creek looks like, click here to see a video we took in August 2012.