ELR Citation: ELR 20157
No(s). 93-2179 (11th Cir. Sep 20, 1995)

The court holds that a district court did not err in finding that Fisheating Creek upstream of Fort Center, Florida, is not a navigable water subject to federal jurisdiction under §10 of the Rivers and Harbors Act. The court first holds that the critical period for determining navigability is between the late 1880s and 1940. It is uncontroverted that a marsh on the creek has blocked travel since at least 1940, and the creek had no water link to interstate commerce until the late 1880s. The court holds that the district court did not err in concluding that an 1842 map that a military explorer prepared shows that travel through the marsh was extremely difficult. Also, the probative value of the map is not high, because the expedition took place over 40 years before the lake into which the creek empties was linked with the Atlantic Ocean or the Gulf of Mexico. The court next holds that an 1871 survey is probative of whether the creek was navigable at that time, because the surveyor was instructed to "meander" both sides of navigable rivers, but only navigated one side of the creek. That he measured the width of the creek by triangulation rather than by pulling a chain across it does not necessarily show that the channel is well-defined and deep. The court next holds that other maps indicating a channel through the marsh, although probative, must be considered in light of all the evidence. The court also holds that the district court did not mischaracterize the testimony of the U.S. Army Corps of Engineers' (the Corps') expert witness as indicating that the marsh has been vegetated for hundreds of years. The court holds that significant evidence supports a finding of nonnavigability between the late 1880s and 1940, and that the district court did not clearly err in its finding. The court next holds that the Corps' assertion that the district court erred in considering a U.S. Coast Guard publication on bridges over navigable waters is without merit. The district court did not refer to that publication, but rather to a Coast Guard memorandum regarding jurisdiction over the creek. Moreover, the Coast Guard's opinion is relevant, although not dispositive, on the issue of navigability. The court holds that the district court did not err in considering evidence of the manner in which Florida has treated the creek. The evidence is probative because it logically follows that the state may not have considered the creek to be navigable and under sovereign ownership. The court also holds that a report by a Corps official concluding that the creek is not navigable is relevant, even though the decisionmaker on navigability did not adopt the report and came to a different conclusion. The district court did not err in considering the report. The court holds that the district court did not clearly err in its findings of fact. Although evidence exists that would support a finding that the creek was navigable during the relevant period, there is substantial evidence to support a contrary finding, and the resolution of such factual disputes is the province of the trial court.

[The district court opinion is published at 23 ELR 21456.]

Counsel for Plaintiff
Charles W. Pittman
MacFarlane, Ausley, Ferguson & McMullen
2300 First Florida Tower
111 Madison St., Tampa FL 33601
(813) 223-2411

Counsel for Defendant
David Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

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