LYKES BROS., INC., A FLORIDA CORPORATION, PLAINTIFF-APPELLEE,

v.

UNITED STATES ARMY CORPS OF ENGINEERS, DEFENDANT-APPELLANT

Lykes Bros., Inc. (“Lykes”) brought this civil action pursuant to 5 U.S.C. § 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.

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. § 403, which generally prohibits the obstruction of navigable waters.

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 § 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. § 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.

The court granted the motion, held a seventeen-day trial, and concluded that Fish-eating 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.

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 Gypsum, Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).

IV.DISCUSSION A.

Relevant Considerations A waterway is regarded as “navigable water of the United States” within the meaning of § 10 of the Rivers and Harbors Act, 33 U.S.C. § 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. 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, 71 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 Appalachian Elec.

Power Co., 311 U.S. 377, 408, 61 S.Ct. 291, 299, 85 L.Ed. 243 (1940); 33 C.F.R. § 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 ease 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 Cow-bone 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 Okeechobee was linked with the Atlantic or the Gulf.

Thus, the probative value of Preble’s account is not as high as the Corps asserts.

The Corps also contends that an 1871 public land survey performed by a disinterested surveyor, J.C.

Tannehill, shows that there was a well-defined channel through Cowbone Marsh because, in mapping the area, Tannehill drew a solid line through his depiction of Cowbone Marsh.

However, the line Tannehill drew is accompanied by “meander” readings on one side.

Surveyors were required to meander both sides of what they concluded were navigable rivers, and to meander one bank of what the surveyor thought were well-defined natural arteries of “internal communication.”

Because Tannehill only meandered one bank of Fisheating Creek, the district court found that Tannehill had determined Fisheating Creek to be nonnavigable.

Given the instructions under which Tannehill operated, his meandering of only one bank of Fisheat-ing Creek is probative of whether Fisheating Creek was navigable in 1871.

The Corps also argues that the way Tannehill measured the width of Fisheating Creek in Cowbone Marsh indicates there was a channel.

Tannehill measured the width of the creek by using triangulation, as opposed to pulling a chain across the creek.

The Corps argues that this indicates that the stream was too deep or too swift to cross with a chain.

The district court did not address this in its opinion, but the record indicates that there were other reasons a surveyor might have used triangulation, such as if the channel were very wide and filled with obstacles.

As a marsh is often very wide and filled with obstacles such as dense vegetation, measuring width by triangulation does not necessarily show that the channel is well defined and deep.

The Corps also contends that several other maps indicate there was a channel through Cowbone Marsh.

In particular, the Corps refers to a 1929 Corps of Engineers survey, a 1926 map of Glades County, an 1899 Atlas Map of Florida, and an 1866 military map.

In each of these maps, Fisheating Creek is shown as either a stream or a river. The district court discounted the 1929 Corps of Engineers survey because it was designed for flood-control purposes.

The court found that the “contour lines that purport to cross the thread of a channel show a negligible depression that does not indicate any defined channel or any levees.”

Lykes Bros., Inc., 821 F.Supp. at 1461 (Finding 28).

In light of all of the evidence, this conclusion is not clearly erroneous.

Moreover, the other maps, although probative, must be considered in light of all of the evidence.

The Corps also contends that the testimony of its expert witness supports a conclusion that a navigable channel once existed through Cowbone Marsh.

The district court found that the expert’s testimony indicated that three feet of muck existed throughout Cowbone Marsh, and that this indicated that the marsh has been vegetated for hundreds of years.

The court also found that the soil borings in Cowbone Marsh fail to show the existence of a channel through Cowbone Marsh for hundreds of years.

We have reviewed the testimony of this witness, and agree with the Corps that parts of his testimony support a conclusion that a navigable channel once existed through Cowbone Marsh.

Other parts, however, support the district court’s findings, and we do not conclude that the district court mischaracterized his testimony.

The district court also based its finding that Cowbone Marsh has been nonnavigable for hundreds of years on other evidence.

Lykes presented a number of witnesses, some of whom were lifetime residents of the area, who testified that a navigable channel had never existed through Cowbone Marsh, and that Fisheating Creek had not been navigable or used for commerce upstream from Fort Center. Two of these witnesses were born as early as 1919, and they recalled the conditions of Fisheating Creek and Cowbone Marsh from the early to mid 1920s.

The court also considered a 1915 Corps investigation that described Cowbone Marsh as “impassable even in a small skiff boat.”

Lykes Bros., Inc., 821 F.Supp. at 1459 (Finding 12).

The 1915 investigation also noted that no commerce was carried on the creek, and that it was unlikely that creek improvements would catalyze commerce.

In addition, the court considered aerial photographs from 1940 through 1990, which show that Cowbone Marsh has remained virtually unchanged and nonnavigable throughout the period.

Although we are primarily interested in the period between the late 1880s and 1940, the early 1940s photographs are probative because they show no sign of a recently filled channel, indicating that no channel existed for some time before 1940.

For a reviewing court to conclude that a district court clearly erred in its findings of fact, the reviewing court, after examining the entire record, must be left with “the definite and firm conviction that a mistake has been committed.”

United States Gypsum Co., 333 U.S. at 395, 68 S.Ct. at 542.

After reviewing all of the evidence regarding Cowbone Marsh, we find that there is significant evidence to support a finding of nonnavigability between the late 1880s and 1940, as well as before and after that period.

We hold that the district court did not clearly err in its findings relative to Cowbone Marsh.