NOTE:  THIS STORY WAS PREVIOUSLY PUBLISHED ON SATURDAY JUNE 29, 2013 AS A ‘BREAKING NEWS’ STORY.

Federal Judge Jose Martinez denied the federal government’s Motion to Dismiss F.E.B.’s (Roger Bernstein’s) claim over ownership of Wisteria Island on Friday, June 28th.

The question posed publicly for the first time by Key West The Newspaper back in June of 2011 as to just who owns Wisteria Island in Key West harbor remains undecided.

“This court finds that at this stage it cannot determine whether it has jurisdiction and therefore finds dismissal inappropriate.”

The issue hinges on a “reasonableness” factor.   To win a dismissal the government had to prove that Bernstein (or any one of his predecessors in interest) “knew or should have known”, prior to twelve years before filing suit, that the U.S. had made a claim to Wisteria Island.

There is a 12-year statute of limitations on federal Quiet Title Act suits.  Even though the Navy made a clear claim to Wisteria in September of 1951, before the initial purchase by then State Representative Bernie Papy, Sr., the claim was never officially restated until last year.

What makes matters confusing is that in 1953 Congress passed the Submerged Lands Act which granted coastal submerged lands and spoil islands (other than those intended for US government use) to the State of Florida.

And that is where the parties diverge:

The government claims that the SLA is no excuse because the owner should have noticed that the Act had exceptions and that Wisteria Island was therefore not “clearly and unequivocally” transferred to the state in 1953 (and they can’t show up now, some sixty years later to try to clear the title).

Bernstein’s attorneys argue that a reasonable person couldn’t have known that the Navy intended to use the island since, as a matter of fact, they never actually did anything with the island.

Interestingly enough Bernstein now agrees that the State of Florida had absolutely no right to sell the island in January of 1952.   It definitely sounds a little bit quirky to say that the US cannot assert its claim to the island now because Papy bought it illegally in 1952 from a seller that clearly did not own it.

However, the judge is taking the careful reasonable approach, making sure that a technicality is not going to slash Bernstein’s right to defend land his family paid taxes on for over 40 years.

What has not been put before the Judge as yet is the fact that just prior to the 1953 grant of submerged lands to the states, the Key West Citizen included a front page announcement of Navy plans for a multi-million dollar enhancement of Navy facilities in Key West [Truman] harbor.   Those plans included the repositioning of all base fuel depots to Wisteria Island with pipelines extending to the submarine basin, the seaplane basin and Trumbo Point.

It is hard to believe that a personality, like then State Representative Bernie Papy, Sr., who reportedly was in and out of Navy command offices in Washington at the time, could not have known that the Navy had plans for the development of Wisteria Island.  Since everyone else in Key West knew about the harbor project, he should have also known that the SLA with its pointed exception (for lands built-up by the US for its own use) had not lifted the huge black cloud over his title.

Arguably, Bernie Papy Sr. could have bought the island when he did precisely because, as a well-connected insider, he believed he could negotiate for big bucks by interjecting a claim into the Navy’s plans for development of the island.

As the story goes however when it comes to the government, you can rattle its chain but you can’t drive the gorilla.   Apparently, the Navy refused to negotiate and went on to build Tank Island as their fuel depot instead.

At this point, prior to going to trial, the government could decide to ask Judge Martinez to certify an interlocutory appeal (appealing the denial of dismissal now and not moving forward with trial until after appeal) or it could reintroduce the issues through a Motion for Summary Judgment (laying all its cards on the table and asking for a Judgment without trial).

This case could take awhile…

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