Key West The Newspaper

A federal Judge issued the first Order on the question of Wisteria Island’s ownership last week.

Roger Bernstein, President of FEB Corporation wants Judge Jose Martinez to decide who owns the last desert island in Key West harbor, the United States or FEB Corp.

But the case might not go that far.   According to the Government, the 12-year statute of limitations for clearing title has long ago run out and the Judge should dismiss the case for lack of jurisdiction.

Martinez appears puzzled by a sudden change in FEB’s arguments during the first hearing on the case in Miami on April 5th.  Initially Bernstein claimed that the State of Florida had acquired the island upon Statehood and that ownership by the State was later confirmed by the 1953 Submerged Lands Act (SLA).

The problem with that argument is that the US Supreme Court in several successive landmark decisions ruled that prior to the SLA, baybottom and spoil islands belonged to the federal government, not to the coastal States and therefore the States had no right to sell those lands.    Realizing they were sailing towards inevitable doom, Bernstein’s crew decided to radically change course.   At the April 5th meeting they admitted that the State of Florida did not own the island when it sold it in 1952 to then State Representative Bernie Papy, Sr.

Bernstein’s new argument is:   Even though the State didn’t own the island in 1952, it became the owner in 1953, which validated the sale to Papy.

Martinez wants to be briefed on the implications of buying land from someone who didn’t own it at the time but ended up owning it later.  The Judge has also asked for a briefing on how to determine the exact moment in time, the date, from which to begin the countdown on the fatal 12-year statute of limitations.

FEB has argued that the Government’s 1951 claim objecting to Florida’s sale of the island was effectively erased by the SLA and that the Government didn’t make another claim until 2012.  The Government has pointed out that a grant of land by the US Government must be “clear and unequivocal” and that no reasonable person would have believed that the Government had “unequivocally” abandoned its claim through the SLA because Wisteria is a type of property that is specifically excluded from the Act.

Considering how strongly the Navy has historically asserted its claim to Wisteria Island (even obtaining an Executive Order from President Coolidge in 1924) its hard to understand how a reasonable person in those days could have believed that the Government was never going to claim Wisteria Island under one of the SLA exceptions.

The statute of limitations does not run from the moment the current owner should have known about the Government’s claim, but rather from the time any ‘predecessor in interest’ should have known of the claim.   This could mean Bernie Papy.  It’ll be up to Judge Martinez to decide what Bernie Papy knew or didn’t know in the 1950’s.

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