Water as Freedom: Fluid freedom
Whether it be an endless ocean, a meandering river, or a back country swamp,
water evokes freedom for all who seek it.
so fluid and fleeting
Florida’s waterways promise blissful release from rules and care —
until one person’s liberty clashes with another’s property lines.
By Thomas T. Ankersen
Featured image above: Cave divers enter the labyrinth of Manatee Springs, one of the state’s first-magnitude springs, located on the Lower Suwannee River. Photo by Mark Long.
A peninsula dipping into a tropical sea surrounded and shot through with water, Florida has always been something of a mecca for those in search of the freedom water evokes. Water crashes onto its shores, runs through its pores and stands on its surface.
This may explain why the allure of being in, around, under, and over the water — and the freedom that proximity offers — has been part of the state’s DNA since Florida moved from backwater to the mainstream. Spanish explorer Ponce de Leon’s legendary search for a mythical Fountain of Youth was nothing if not a search for freedom — freedom from mortality — with “running water of such marvelous virtue, that the water thereof being drunk, perhaps with some diet, makes old men young again.”
Today, water continues to lure Floridians in search of freedom and adventure. Waterfolk of all sorts — boaters, fishers, beachgoers, divers, surfers — seek freedom in their relationship to water; freedom to wander and wonder, freedom to congregate and recreate, and freedom from the cares of daily life on land. Yet like so many freedoms, these are challenged by overcrowding, misuse and overuse, gentrification and outright selfishness.
As someone who grew up on Florida’s east coast in the 1960s and ’70s when adventure was easy to come by, when ditches led to streams that led to woods, when there were no property lines on the sandy beach, when it was possible to actually get lost, I have lamented that the freedom nature offers is now frequently fenced and forsaken. At the same time, as an attorney and law professor who has used the law to protect nature for most of my career, I know Florida has long since surpassed its ability to accommodate renegade freedom seekers in nature, even if I still aspire to be one.
The right to roam
The relationship between water and freedom must be as old as time. But if one manifestation of that relationship is the unfettered ability to explore, then water holds a special place in the pantheon of freedoms. Nowhere is that better expressed than in Mare Liberum — Freedom of the Seas — the legal doctrine espoused by the 17th century Dutch philosopher and lawyer Hugo Grotius. Grotius articulated one of the guiding principles that facilitated the global expansion of Europe — the right to freely navigate on the high seas, an uneasy bargain of convenience among the plundering powers. That right to navigate, and the freedom to adventure it offers, has permeated our own law, and the Floridian lifestyle. In parts of Europe there is quite literally a “right to roam” the countryside, property ownership be damned. In the United States, which puts a premium on property rights, this tradition has never found its way — except on the water, which the states, by law, hold in trust for all the people.
One recent case involved the freedom to run airboats while hunting alligators and gigging frogs all night on North Central Florida lakes, where once-remote shorelines now sport high-end homes. The plaintiffs argued that local curfew and noise laws violated their right to freely navigate. More audaciously, they argued that the freedom to navigate is a “fundamental constitutional right,” a status reserved for those most sacred of constitutional rights, such as the free exercise of speech, religious liberty and the right to keep and bear arms. While a three-judge state circuit court panel disagreed that the right to navigate is a fundamental right, the sentiment that underlies the argument, and the deep maritime roots that go back to Grotius, lend credence to the powerful sway that freely navigating on Florida waters holds.
While the right to navigate may not be a fundamental constitutional right, it is one the Florida Legislature protects by statute, refusing to allow local governments to restrict the ability of cruising boaters to anchor in their waters. A poor yet happy mariner can anchor all but indefinitely offshore from Gloria Estefan’s Miami Beach mansion and foul her view, and neither she nor the City have much in the way of recourse. While the state can regulate itinerant anchoring, it rarely does. It took decades of litigation to finally end the saga of “houseboat row” in the Florida Keys, a community of freedom-seeking boaters “squatting” over the sovereign submerged lands of the state. “…It’s a lifestyle choice the tight butts on shore just don’t want,” one long-time “resident” of houseboat row proclaimed in a 1998 Washington Post article. A lawyer for the state countered, “This is no different than someone moving a mobile home on the front lawn of the Capitol, saying I’m going to live here.”
Where there are opportunities for exploration there remains opportunity for freedom. The last vestige of unexplored Florida persists into the 21st century in an unlikely setting, where exploration has only just begun.
North Florida’s labyrinthine underwater cave system beckons cave divers from around the world. “An inner-planetary wilderness ripe for exploring” in the words of Florida writer Julie Hauserman in her biography of the late legendary cave diver Wes Skiles. “A dwindling, finite domain of places on earth never before seen by man,” in the words of cave explorer William Stone.
Sinkholes and springs offer glimpses into a three-dimensional underworld every bit as complex as the one that sits on top. It takes a special kind of person to view being underwater underground, thinly tethered to a tank of air, surrounded by rock on all sides save a narrow passageway to the surface, as a form of freedom. Yet cave divers and springs lovers alike, travelling from all over the world, speak in rhapsodic terms of the freeing sensation these magical places instill. Hauserman quotes the words of well-known Florida diver Tom Morris: “Imagine yourself suspended weightlessly in warm, air-clear water with powerful aircraft landing lights, able to fly through a giant, apparently endless, 60-meter diameter bore-hole, honed from the purest bone-white limestone, with a prehistoric bone-strewn floor of silvery sand….”
These air-clear waters are becoming more and more scarce, however, as nutrients pour down from above, tinging them the color of progress.
The last wild places or the last places to get wild
For many freedom-lovers, water offers the last recreational respite from regulation: regulation born of necessity as Florida boomed and there became too many of us to run wild and free across the landscape.
Even the most community-minded among us can chafe at paying fees to congregate and recreate in nature, detesting hustling out of parks at dusk and hiding banned beverages between the knees like underaged teens. Writing from Key West in 1936, Ernest Hemingway described the Gulf Stream that hugs the Florida Coast as “the last wild country there is left.” His 1936 article in Esquire about fishing in that “last wild country” would serve as the inspiration for The Old Man and the Sea.
Nearly 100 years later, flotillas of Florida boaters raft-up in the shallows for another kind of wild. They gather en masse to party and play on ephemeral sandbars and along dredged spoil islands in Florida’s waterways, a practice one state wildlife officer calls “boating aggregations,” a nod to fish who do the same when spawning. These unregulated pop-up parks and playgrounds have become law enforcement nightmares, but they speak to the yearning for unregulated fun, to a time when open access to recreational resources was taken for granted. It should come as no surprise that more than one of these is named “Beer Can Island.” The poster child for these aggregations may be Crab Island off Destin in Walton County. “You have dissemination of alcohol, you have clothing issues,” the county sheriff complained to the local newspaper, “and then you have kids’ activities, all of which are in a public space and taking up and preventing other people from using it.”
Concern over the loss of these open-access amenities has promoted the formation of non-profit organizations intent on litigating — Save Our Siesta Sand2 in Sarasota — and informal self-appointed guardians intent on ensuring unfettered access to places like the “Snake Island Republic” in Venice. Facebook groups and other social media platforms pop up at the first sign of any threat to unrestricted recreational access to these aquatic resources.
The sandy path to freedom
Access to the water’s edge, to the thin strand of sand and shore where the rules are implicitly different, has long been a favored but fraught path to freedom for modern Floridians. Florida historian Gary Mormino took note. “The most recurring image of Florida is that of a beach…[a]n arena for creative and destructive tension: nature versus technology, personal freedoms versus communal control, and democracy versus plutocracy.” That, too, is threatened.
The battle for the right to roam the beaches has gained a heightened sense of urgency as the 21st century sea chews away at the state’s watery edge, and the once pedestrian act of walking along the beach becomes an obstacle course of sea walls, rock revetments, and extended backyards. Walton County, along the Florida Panhandle’s coast, has become the flashpoint in the Everyman’s right to roam the sandy beaches, but throughout the state beachfront owners and private resorts zealously defend what they regard as theirs.
In the 21st century, the battle for the beach has been a battle not just for access to the beach, but for access along the beach. Private property extends to the high water line but the ancient legal doctrine of custom, recognized by the Florida Supreme Court, allows public use of the dry sand above the high water mark — if it can be proved. Unlike navigational freedom on the water, on dry land the legislature has taken a different tack. Rather than throwing open the state’s sandy beaches to open access under the customary use doctrine as some states have done, Florida requires individualized proof of the use by the public since “time immemorial” — parcel by painstaking parcel.
Solace for the soul
In Hyacinth Drift, famed Florida author Marjorie Kinnan Rawlings sought sisterhood and spiritual refuge from a difficult relationship by leaving the land behind and sojourning with a friend in a motorboat down the St. Johns River, no easy task in 1933. As they debarked, Rawlings noted that “There would be neither lights, beacons nor buoys for at least a hundred miles. Bridge and highway disappeared, and there was no longer any world but this incredible marsh, this unbelievable amount of sky.” When she finally returned, she declared she would “never be happy on land again…afraid once more of all the painful circumstances of living,” lamenting that “the world is no longer fluid.”
Where subterranean waters bubble to the surface, Florida’s Springs evoke their own sense of spiritual freedom, the surficial expression of Water’s Journey, Wes Skiles’ documentary on Florida’s subsurface water. “They are magical places for the solace of the soul,” says artist Margaret Ross Tolbert, who has dived in the springs and painted them for nearly three decades. “We are creatures of spirit, drawn to these sacred waters, body and soul,” writes John Moran, in Springs Eternal, channeling what must have been worshipful awe among the first inhabitants of Springs country. Both are on the defensive, forsaking brush and lens for microphone and megaphone, lamenting the declining quality of once crystalline waters, and prodding lawmakers to do something about it.
Freedom’s last stand
Perhaps nothing sums up the feeling of liquid freedom more than surfing, which for many encompasses a lifestyle, not just an addictive pastime. While Florida surfing has never achieved the cultural fame of the surf-blessed Pacific Coast, it still served as an irresistible outlet for exploration, recreation, and spirituality for those who surf — and for those who wish they did.
Legendary surfer/waterman cum philosopher, Tom Blake, who spent time in South Florida in his more reflective later years, summed up the experience in his famous 1968 essay, “Voice of the Wave.”
“While on a board, either surfriding or paddling, one is truly free from land-bound restrictions. For that hour he is captain of his fate, of his miniature ship. The burden of city, school, job as well as the cares and worries of the subconscious mind, are erased and forgotten….”
University of Florida religion professor Bron Taylor, himself a surfer, describes the most overtly spiritual surfing, sometimes called “soul surfing,” as an aquatic nature religion. Florida has its share of believers.
In On a Wave, his award-winning 1970s coming-of-age surf memoir, author Thad Ziolkowski vividly and wistfully captures the essence of soul surfing on Florida’s Space Coast, teenage angst and all. He describes a youth where the ocean and simultaneous escape from both adolescence and adulthood were just a footpath away from the front door, where organized sports took a back seat to a sport with no rules.
Ziolkowski also captures a barefoot milieu that is in the rearview mirror, in Florida and elsewhere. “There are graced surf towns — Santa Cruz, Bolinas, Malibu, Montauk — where cars rust like lace,” he writes. “Shielded for a certain period, suffused with beauty and with subtler blessings, innocence, a certain sweetness, they are worlds out of time, these towns. Melbourne Beach was such a place.” The convergence of counterculture, surf, and the race to outer space created that world out of time.
The earliest records of standup surfing in Florida date to around 1930 in Daytona Beach, according to Scott Edwards, in his chapter in Paul Aho’s Surfing Florida: A Photographic History.
But the stretch from Cocoa Beach to Vero Beach emerged as the epicenter of Florida surfing in the 1960s, given the proximity to Sebastian Inlet and the legendary “First Peak” wave. The sandbar off of Sebastian’s South Jetty sets up the fabled “Monster Hole.” As one works one’s way north, there is Spanish House, Shark’s Pit, the Pines and myriad other surf breaks named and unnamed. These were places where sand paths through the palmettos led to freedom, with no entrance fee, where all night bonfires led to first light surf sessions. All that has changed. Sebastian Inlet is a fee-seeking state park. Bonfires have been banned. Melbourne Beach got its first traffic light. Many of Florida’s soul surfing freedom seekers moved on.
Every surfer has planned and plotted their own path to freedom, their own Endless Summer. In the early years of Florida surfing, there were road trips to Cape Hatteras and pilgrimages to California and Hawaii. Later, Florida surfers flocked to Puerto Rico, and then to Costa Rica and more far-flung nations still in the process of moving into the global mainstream, some engaged in civil war. In these places one could still discover empty beaches, virgin surf breaks, air-clear water — and yes, unregulated fun — the stuff of freedom that has been forever sought, and forever eroding away.
Tom Ankersen directs the Conservation Clinic at the University of Florida Levin College of Law, which provides experiential learning opportunities for law and graduate students in areas of law including environmental, land use, marine and coastal, and international environmental law. He also directs the Florida Sea Grant Legal Program, and he serves on the leadership team for UF’s newly established Center for Coastal Solutions. His most recent legal scholarship, Recreational Rights to the Dry Sand Beach in Florida: Property, Custom and Controversy, addresses the legal history of beach access in Florida. Ankersen grew up in and around the water on Florida’s Space Coast and spent his collegiate summers lifeguarding and surfing the beaches of South Brevard County. He maintains a parallel universe in Costa Rica, where he has worked and played for 25 years.
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