May 052017
 

by Naja and Arnaud Girard…….

Get out of the tent! Joe Sanders had just woken up to deputies yelling orders. As he peers through the slit in his tent his eye suddenly focuses on the barrel of a deputy’s gun 6 inches away and pointed straight at him. Now, according to the federal government, Joe had pitched his tent on public land. Wisteria Island is claimed by the Bureau of Land Management and it is BLM’s policy to keep public lands open to the public, and that includes camping.

Joe’s adventure happened over a year ago, but this week the memory of that morning sprang instantly back into Kara’s mind when deputies woke her up in her tent on the island. Joe you see didn’t mind getting out of his tent for the deputies, but he was still naked. Pleading didn’t help. He says he was dragged out, forced to stand naked at gun point, hands up in the air, in front of everyone.

Last Saturday Kara, Joe’s former girlfriend, thought: “Oh boy! It’s my turn!” She too was sleeping naked in her tent on Wisteria Island. “In fact, this time they were very polite,” says the 26-year-old, “they gave me time to put my clothes on.” Then they took her photo and had her answer questions about where she works and where she lives. Kara lives on a boat, but often camps on the island. “It’s beautiful out there.” she says.

So why was the Sheriff’s Department again waking people up on Wisteria Island? Two weeks ago The Blue Paper debunked the story about how the Sheriff had found “12 people with active warrants” on Wisteria Island. The Sheriff’s Department had to admit that there was no record of those warrants. In fact, this week we were able to review records of Sheriff’s deputies’ dispatch communications made during the August 4, 2016 sweep. It shows that deputies did find 14 people on the island that morning and that they’d radioed the dispatcher to check for warrants. However, contrary to the official story, published repeatedly countywide, the CAD report shows that every single ID they checked came back as “clear.” (meaning no active warrants)

According to Sheriff Rick Ramsey, criminal elements living on the island are damaging the environment. As a solution, he’s asking BLM to agree that the island should be closed overnight and to allow trespass charges to be brought against anyone found on the island past 5:00 pm.

This week deputies came back from their early morning sweep having found 5 people sleeping on the island and several (3) improvised toilets. We reviewed the 108 new photos filed with their report. They show issues with illegal dumping, 3 makeshift cesspits, and 6 “permanent” camps. The photos essentially depict issues of littering and pollution.

Because the photos point to environmental crimes more-so than trespass issues, we wanted to learn whether law enforcement currently has any power to crack down on people who are dumping and littering. We asked State Attorney Dennis Ward whether he would be willing to prosecute if the Sheriff brought up such charges. “If they want to bring me that kind of case they certainly can,” was Dennis Ward’s answer.

Yet for the past year Sheriff Ramsey has been piling up photo after photo of the same makeshift camps and illegal cesspits while there’s no record of the occupants of those camps being charged for the illegal outhouses they use or the piles of junk they’ve collected. Under Florida Statute Chapter 386, after being notified by the Sheriff, the Department of Health would be obligated to remove the “sanitary nuisance” if it still remained after posting a 24-hour removal notice.

And then there’s Roger Bernstein who is fighting the U.S. government over the ownership of the island. He too claims to be very concerned about the environment. He sent his lawyers to convince county officials and now the BLM to find a way to prosecute those on the island for trespassing. Yet he hasn’t tried to press charges against the permanent dwellers for littering or sanitary nuisances.

Many locals do not seem surprised by this contradiction: Mr. Bernstein’s record as the steward of the island is at best controversial. “Way before he lost his court case we offered to do another clean-up of the island,” recalls Satya Wildwood, who lives on a boat near the island, “Bernstein refused. After that a complaint was filed with the county code department who ordered Bernstein to clean up the island. It sure looked like the man was hanging on to that garbage as if it was gold,” says Satya, “for him it must have meant ‘photo-op’. It was political gold, proof that the island needed to be developed.”

When the island was on fire three years ago it burned for over a week.  After a few days, The Blue Paper asked the county’s fire department why they weren’t responding. Their response was: Mr. Bernstein hadn’t requested their assistance. The fire was finally put out by volunteers from the anchorage.

With the State Attorney ready to prosecute any environmental crime case that “has merit”, the friends of Wisteria Island are left with mostly unanswered questions:  Doesn’t it seem that law enforcement already has all the tools it needs to keep the island under control? Is there a deliberate failure to enforce existing environmental laws? A deliberate focus on 4 or 5 social cases on an otherwise pristine 22-acre island?

Is closing the island and creating an opportunity to prosecute a trespass case just a creative way to reintroduce Bernstein’s claim of ownership, otherwise barred by the statute of limitations? The State Attorney is confident that this will not happen. [Proof of ownership is a necessary element in a criminal trespass case.] Prosecution of environmental crimes does not require a link to ownership.

Right or wrong, many residents will feel this is just one more of the scarce resources we have left — being ‘regulated away’. As locals, they can no longer park a dingy beside their homes because that might hurt the real-estate value of a new neighbor from up north. As a result, they can no longer take their children offshore fishing because there’s no more free access to the ocean for locals unless they can afford prohibitive marina prices. One can no longer fish or swim from most public piers and it’s been years since anybody could legally sit on the beach past 11 pm.

“If you are not a tourist or a retired millionaire,” says Satya, “you’re pretty much expected to just work and pay rent in Key West.”

Wisteria island is the last place where even the poorest of the poor could offer their kids the priceless wonder of nature. Until now, it included a night under the stars.

~~~~~~~~~

BLM is in the process of making a decision on whether to agree to a closure order that would prohibit visitation of Wisteria Island  by anyone between 5:00 PM – 8:00 AM. If BLM does move forward with the overnight closure order, the detailed proposed regulations will be published in the Federal Register and a 45-day public comment period will follow.

Title XXIX
PUBLIC HEALTH
Chapter 403
ENVIRONMENTAL CONTROL
View Entire Chapter

403.413 Florida Litter Law.

(1) SHORT TITLE.This section may be cited as the “Florida Litter Law.”

(2) DEFINITIONS.As used in this section:

(a) “Aircraft” means a motor vehicle or other vehicle that is used or designed to fly but does not include a parachute or any other device used primarily as safety equipment.
(b) “Commercial purpose” means for the purpose of economic gain.
(c) “Commercial vehicle” means a vehicle that is owned or used by a business, corporation, association, partnership, or sole proprietorship or any other entity conducting business for a commercial purpose.
(d) “Dump” means to dump, throw, discard, place, deposit, or dispose of.
(e) “Law enforcement officer” means any officer of the Florida Highway Patrol, a county sheriff’s department, a municipal law enforcement department, a law enforcement department of any other political subdivision, or the Fish and Wildlife Conservation Commission. In addition, and solely for the purposes of this section, “law enforcement officer” means any employee of a county or municipal park or recreation department designated by the department head as a litter enforcement officer.
(f) “Litter” means any garbage; rubbish; trash; refuse; can; bottle; box; container; paper; tobacco product; tire; appliance; mechanical equipment or part; building or construction material; tool; machinery; wood; motor vehicle or motor vehicle part; vessel; aircraft; farm machinery or equipment; sludge from a waste treatment facility, water supply treatment plant, or air pollution control facility; or substance in any form resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations.
(g) “Motor vehicle” means an automobile, motorcycle, truck, trailer, semitrailer, truck tractor, or semitrailer combination or any other vehicle that is powered by a motor.
(h) “Person” means any individual, firm, sole proprietorship, partnership, corporation, or unincorporated association.
(i) “Vessel” means a boat, barge, or airboat or any other vehicle used for transportation on water.
(3) RESPONSIBILITY OF LOCAL GOVERNING BODY OF A COUNTY OR MUNICIPALITY.The local governing body of a county or a municipality shall determine the training and qualifications of any employee of the county or municipality or any employee of the county or municipal park or recreation department designated to enforce the provisions of this section if the designated employee is not a regular law enforcement officer.

(4) DUMPING LITTER PROHIBITED.Unless otherwise authorized by law or permit, it is unlawful for any person to dump litter in any manner or amount:

(a) In or on any public highway, road, street, alley, or thoroughfare, including any portion of the right-of-way thereof, or any other public lands, except in containers or areas lawfully provided therefor. When any litter is thrown or discarded from a motor vehicle, the operator or owner of the motor vehicle, or both, shall be deemed in violation of this section;
(b) In or on any freshwater lake, river, canal, or stream or tidal or coastal water of the state, including canals. When any litter is thrown or discarded from a boat, the operator or owner of the boat, or both, shall be deemed in violation of this section; or
(c) In or on any private property, unless prior consent of the owner has been given and unless the dumping of such litter by such person will not cause a public nuisance or otherwise be in violation of any other state or local law, rule, or regulation.
(5) DUMPING RAW HUMAN WASTE PROHIBITED.Unless otherwise authorized by law or permit, it is unlawful for any person to dump raw human waste from any train, aircraft, motor vehicle, or vessel upon the public or private lands or waters of the state.

(6) PENALTIES; ENFORCEMENT.

(a) Any person who dumps litter in violation of subsection (4) in an amount not exceeding 15 pounds in weight or 27 cubic feet in volume and not for commercial purposes is guilty of a noncriminal infraction, punishable by a civil penalty of $100, from which $50 shall be deposited into the Solid Waste Management Trust Fund to be used for the solid waste management grant program pursuant to s. 403.7095. In addition, the court may require the violator to pick up litter or perform other labor commensurate with the offense committed.
(b) Any person who dumps litter in violation of subsection (4) in an amount exceeding 15 pounds in weight or 27 cubic feet in volume, but not exceeding 500 pounds in weight or 100 cubic feet in volume and not for commercial purposes is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. In addition, the court shall require the violator to pick up litter or perform other community service commensurate with the offense committed. Further, if the violation involves the use of a motor vehicle, upon a finding of guilt, whether or not adjudication is withheld or whether imposition of sentence is withheld, deferred, or suspended, the court shall forward a record of the finding to the Department of Highway Safety and Motor Vehicles, which shall record a penalty of three points on the violator’s driver license pursuant to the point system established by s. 322.27.

(c) Any person who dumps litter in violation of subsection (4) in an amount exceeding 500 pounds in weight or 100 cubic feet in volume or in any quantity for commercial purposes, or dumps litter which is a hazardous waste as defined in s. 403.703, is guilty of a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083. In addition, the court may order the violator to:

1. Remove or render harmless the litter that he or she dumped in violation of this section;
2. Repair or restore property damaged by, or pay damages for any damage arising out of, his or her dumping litter in violation of this section; or
3. Perform public service relating to the removal of litter dumped in violation of this section or to the restoration of an area polluted by litter dumped in violation of this section.
(d) A court may enjoin a violation of this section.
(e) A motor vehicle, vessel, aircraft, container, crane, winch, or machine used to dump litter that exceeds 500 pounds in weight or 100 cubic feet in volume is declared contraband and is subject to forfeiture in the same manner as provided in ss. 932.703 and 932.704.
(f) If a person sustains damages arising out of a violation of this section that is punishable as a felony, a court, in a civil action for such damages, shall order the person to pay the injured party threefold the actual damages or $200, whichever amount is greater. In addition, the court shall order the person to pay the injured party’s court costs and attorney’s fees. A final judgment rendered in a criminal proceeding against a defendant under this section estops the defendant from asserting any issue in a subsequent civil action under this paragraph which he or she would be estopped from asserting if such judgment were rendered in the civil action unless the criminal judgment was based upon a plea of no contest or nolo contendere.
(g) For the purposes of this section, if a person dumps litter or raw human waste from a commercial vehicle, that person is presumed to have dumped the litter or raw human waste for commercial purposes.
(h) In the criminal trial of a person charged with violating this section, the state DOES NOT have the burden of proving that the person did not have the right or authority to dump the litter or raw human waste or that litter or raw human waste dumped on private property causes a public nuisance. The defendant has the burden of proving that he or she had authority to dump the litter or raw human waste and that the litter or raw human waste dumped does not cause a public nuisance.
(i) It shall be the duty of all law enforcement officers to enforce the provisions of this section.
(j) Any person who violates the provisions of subsection (5) is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083; provided, however, that any person who dumps more than 500 pounds or more than 100 cubic feet of raw human waste, or who dumps any quantity of such waste for commercial purposes, is guilty of a felony of the third degree, punishable as provided in paragraph (c).
(7) ENFORCEMENT BY CERTAIN COUNTY OR MUNICIPAL EMPLOYEES.Employees of counties or municipalities whose duty it is to ensure code compliance or to enforce codes and ordinances may be designated by the governing body of the county or the municipality to enforce the provisions of this section. Designation of such employees shall not provide the employees with the authority to bear arms or to make arrests.
(8) ENFORCEMENT OF OTHER REGULATIONS.This section does not limit the authority of any state or local agency to enforce other laws, rules, or ordinances relating to litter or solid waste management.
History.ss. 1, 2, 3, 4, 4A, ch. 71-239; s. 1, ch. 75-266; s. 1, ch. 77-82; s. 1, ch. 78-202; s. 7, ch. 80-382; s. 1, ch. 82-63; s. 1, ch. 88-79; s. 56, ch. 88-130; s. 12, ch. 89-175; s. 14, ch. 89-268; s. 1, ch. 90-76; ss. 16, 17, ch. 91-286; s. 378, ch. 94-356; s. 1, ch. 95-165; s. 11, ch. 97-103; s. 205, ch. 99-245; s. 1, ch. 2005-200; s. 2, ch. 2007-184; s. 26, ch. 2012-88; s. 3, ch. 2016-174.

43 CFR § 8364.1 Closure and restriction orders.

(a) To protect persons, property, and public lands and resources, the authorized officer may issue an order to close or restrict use of designated public lands.

(b) Each order shall:

(1) Identify the public lands, roads, trails or waterways that are closed to entry or restricted as to use;

(2) Specify the uses that are restricted;

(3) Specify the period of time during which the closure or restriction shall apply;

(4) Identify those persons who are exempt from the closure or restrictions;

(5) Be posted in the local Bureau of Land Management Office having jurisdiction over the lands to which the order applies;

(6) Be posted at places near and/or within the area to which the closure or restriction applies, in such manner and location as is reasonable to bring prohibitions to the attention of users;

(7) Include a statement on the reasons for the closure; and

(c) In issuing orders pursuant to this section, the authorized officer shall publish them in the Federal Register.

(d) Any person who fails to comply with a closure or restriction order issued under this subpart may be subject to the penalties provided in § 8360.0-7 of this title.

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Arnaud and Naja Girard
Arnaud and Naja Girard, owners and editors of the new, digital, Key West the Newspaper (The Blue Paper) previously reported for the former Key West The Newspaper, Key West’s longest running independent weekly, published by Dennis Reeves Cooper, Ph.D., from January 1994 until November 2012. The Girards are perhaps best known for their discovery of and extensive research surrounding the US Navy’s 1951 claim of ownership of Wisteria Island but are also responsible for top investigative stories including breaking news coverage of the highly controversial in-custody-death of Charles Eimers on Thanksgiving Day 2013, the catastrophic police tasing of Matthew Shawn Murphy, and the property tax scandal involving Balfour Beatty to name a few. Arnaud and Naja have lived in Key West since 1986.

  14 Responses to “Wisteria Island: Nature’s Champions or Schemers?”

  1. Looks to me, until the 800 pound gorilla (BLM) takes charge, gives the Sheriff the go ahead to arrest people who are not permitted on the island, before or after dark (or after whenever), Wisteria Island is going to be a colorful sitcom. (soap opera?).

    I kinda imagine the people using the island now hope the gorilla takes his sweet time. Like, forever. Like, never, doing anything.

    We have you, Naja, to thank for his fun theater. And one angel dream I had telling me to tell you to keep after it. You would find something you had not yet found.

    I kinda think people trashing the island should be keel hauled.

    Can’t say I have any sorrowful feelings for the Bernsteins, given the way their “chain of title” originated with a quit claim (effectively) deed from the State of Florida to a Key West mover and shaker state legislator, over the very visible objection of the U.S. Navy Dockmaster in Washington, D.C., as I recall who objected for the U.S. 8 million pound gorilla.

    i think this case should become a cornerstone in real property cases in Florida law schools. Imagine the beer drunk in pubs while wannabe lawyers and their law professors giggle over the Wisteria Island saga – blue paper required reading for final exam ;-).

    Chow maim

    The beatings will continue until morale improves

  2. Maybe this is Bernstein’s way of getting even for his loss created by stupidity to buy land with a clouded deed and lost. Why should the city or county be so concerned over such a few people on the island ? Yes likely creating some human waste but other than that the rest is easily corrected with a clean up.

    What is the real issue ? Seems to be no real serious crimes on the island or boats. I think it is an effort to remove the homeless. Why should BLM give a shit when you consider that the island was basically created by what some would call trash. It was created by dredging and this basically was creating 22 acres of trash. So how do you trash trash ? We are in KW now and from going past the island by boat on sunset cruse did not see anything trashy.

    The fire 3 years ago just might have been started as a cheap way to clear land so construction costs would be lower.

    As to cops waking up people and ordering them out of a tent they best be careful of harrasment charges. Until that property is properly posted I do not believe a crime was created. KW created the lack of affordable housing for workers so they end up on boats and tents.

    As to the waste they are so worried about , take a serious look of who is the real creator. All of your trash from spilled drinks, vomiting streets, food spilled by people onto the street from roadside venders and even urination by some all wash into the storm drains on the streets. Some of that is even oil from old cars. So let’s try to get to the real reason to go after campers.

    • Just to be sure: the wannabe developers had nothing to do with the fire three years ago. They didn’t start it and they didn’t do anything toward putting it out.

      • well, if they didn’t do anything toward putting it out, that’s having something to do with it, isn’t it? Like, I bet they were not crying the fire was burning up trees and bushes they would bulldoze and burn, if they were going to develope the island. There is not a stick, I don’t think, of natural vegetation on the island across the cut – Sunset Key, which the Bernsteins’ Wisteria development partner, the Walsh family, developed. Something did a number on the Australian pines around 2005. I heard people saw aircraft fly over the island dumping something. I heard Hurricane Wilma tidal surge killed the pines on Wisteria. Funny, that was the only Australian pines what got killed around here and up the Keys by Wilma. I would not put it past somebody who wanted Wisteria developed to drop a defoliant on it out of aircraft. There have been volunteer clean ups of Wisteria. What I don’t get is why some people who use it trash it. There is another spoil island, called Demolition Key, which was built many years ago from dredging. I think the name came from the Navy testing explosives on it. Today, it is beautiful. Looks like a wild nature park. It is a rookery. It is a park of some kind. It is illegal to set foot on it. Wisteria would look much like Demolition Key, if people stayed off of it.

        • I haven’t gone and looked for myself but from what I hear the other islands that do not have people frequenting them have an awful lot of trash washing up on the shores — that too takes people to do a clean up from time to time. On Wisteria people clean the shoreline constantly.

  3. There are a few things we know for certain. Bernstein has absolutely no authority or standing to do anything to, on or about Wisteria Island. He lost in the 11th Circuit Court of Appeals and the case did not go to the U.S. Supreme Court. It is OVER. I don’t know why the article said he is still in a legal fight for ownership. He is NOT. He is done. There are no legal options left. The decision on the Statute of Limitations completely closes any other avenues of approach or argument. The island NEVER legally went into private hands. It is FEDERAL LAND.

    We also all know that Wisteria Island is NOT part of Key West, so the KWPD has no jurisdiction at all. That leaves the Sheriff who also has no jurisdiction at all. Until the Federal Government enters into a law enforcement compact with the Sheriff’s Office that is published in the federal record allowing the sheriff to enforce local and state law, the Sheriff is just engaging in harrassment of the people living there. The Sheriff is NOT going to arrest ANYONE for any petty offense nor is the state attorney going to prosecute when it has no jurisdiction to do so.

    What everyone does not know, is that you can legally live and work on Wisteria Island and there is nothing the local coppers or anyone else can do about it.
    How you might ask? By filing a federal mining claim. Exactly how to do that you will have to figure out for yourselves. There are also arguments to be made that the land is public domain. That you will also have to figure out for yourselves.

    • Two things.
      First – yes the Sheriff can enforce local laws on BLM land. Here is the federal code:
      43 CFR § 8365.1-7 State and local laws.
      Except as otherwise provided by Federal law or regulation, State and local laws and ordinances shall apply and be enforced by the appropriate State and local authorities. This includes, but is not limited to, State and local laws and ordinances governing:

      (a) Operation and use of motor vehicles, aircraft and boats;

      (b) Hunting and fishing;

      (c) Use of firearms or other weapons;

      (d) Injury to persons, or destruction or damage to property;

      (e) Air and water pollution;

      (f) Littering;

      (g) Sanitation;

      (h) Use of fire;

      (i) Pets;

      (j) Forest products; and

      (k) Caves.

      Two: Make no mistake Mr. Bernstein continues to fight for ownership. No, it won’t be a federal case under the Quiet Title Act – but there are ways. What do you think he is paying those lawyers for?

  4. Naja, you got dat right! Odds about zero, while Roger Bernstein is still breathing, he will stop trying to turn Wisteria Island into Sunset Key Deux. It ain’t for nuttin’ he thinks you is a witch. Now you can do your cackle and hop on your boom.

  5. You folks certainly know more about all of this then I do. We have seemed to have read different federal statutes. I am not an expert in real property law much less the law on lands owned by the federal government, but I do believe there are no legal routes open to Bernstein. He was shut down in federal court. NO STATE COURT has any jurisdiction over federal lands. Not even the Florida Supreme Court can do anything for him.

    Although he lost on the statute of limitations, the court also answered the outstanding questions that the land was never legally transferred to the state and hence the state had no authority to sell it to the first private owner. In any case, the situation is so rare, there is no case law that can help him. There is no way to go back and change history. Bernstein doesn’t need lawyers, he needs a team of people to build him a time machine. None of us really know if or what he is currently paying any lawyers or what they could possibly do. Lawyers would be happy to take his money but that does not mean there is any law to help him, any court to hear his arguments, or any judge (especially one with jurisdiction) that will believe the arguments and grant him any relief. There are also basic principles such as res judicata and collateral estoppel that prevents anyone from litigating again issues that have already been litigated. Then there is the U.S. government that will no doubt appeal any relief that any judge does grant him. Nobody gets more than a couple of bites at the apple. In any case, I guess we will all have to wait and see how clever his lawyers might be.

    • Just one little tidbit about lawyers. Roger Bernstein, over the past several months, has been paying at least two different lawyers to lobby the Sheriff [repeatedly], the State Attorney [actually current and former – repeatedly] and now BLM. We know this [mostly] because they [the two attorneys] showed up at a County Commission meeting very recently and told us all about it.

  6. I still can’t figure out how the water supply line to Sunset Key was provided at no expense to the developer.

    • Sunset Key was formerly federally owned and managed/used by the US Navy. The Navy put underwater lines in back in the 60’s for the fuel depot they had partially installed out there. The private company used those lines as housing for their water and sewer pipes. Electrical cables and telephone lines were laid beside the old fuel lines… They had expenses but the housing was already there to protect their pipes…

  7. People like Bernstein are the scum of the earth. Already rich but so full of greed that they keep looking for more money and could care less about people or land.

    Do not know if true or not but was told yesterday that their are still some unsold houses on sunset key.

    Seriously who would want to catch a ferry every time they want to leave or get back to the island ? Would rather live on a sailboat off Wisteria or on it in a tent with a dingy to come and go when I want.

    Also took a walk couple days ago past the Simonton disaster of unsold houses. And they dam sure are ugly and nothing like the original picture used to trick the city into making many homeless.