Bernstein Loses Wisteria Island on a Technicality
by Naja and Arnaud Girard…….
This week FEB Corporation and Roger Bernstein, the wannabe owners/developers of Wisteria Island, have lost their case before the Eleventh Circuit Court of Appeals.
When most local politicians seemed all too ready to allow real estate moguls to build their posh hotel resort, who would have thought that an old Navy letter penned almost a century ago was going to place the federal government in front of the bulldozer and save the last desert island in Key West harbor? The battle over Wisteria Island is one for the storybooks. Over the past 9 years it has known the most bizarre of twists:
Developers wining and dining local politicians were ratted out by their waiter. A spy they hired, named “Dirty Joke Dennis,” went to prison leaving, on a sinking boat, a stack of their compromising letters. When the environmental value of the island was under attack, endangered sea turtles showed up and for apparently the first time ever were documented by FWC nesting on the island.
And in dusty national archives in Washington DC, Blue Paper reporters discovered what is now known as the “Navy Claim,” a 1924 Executive Order signed by President Calvin Coolidge reserving Wisteria Island for the Navy and a 1951 letter by which the Navy opposed the State of Florida’s intention to sell Wisteria Island to longtime Florida representative Bernie C. Papy, Sr, the “King of the Keys”.
Since then the island has been sold three times. Buried in the deed file is a note by then Florida Attorney General Richard Ervin,
“I am unable to state definitively whether or not the Navy’s claim is valid. However, I do think that the claim is debatable enough and so shrouded in antiquity that I think the best course would be for [Florida] to complete the sale and explain the Navy’s claim to [the buyer] and allow him to accept the . . . deed at his own risk. . . .”
READ: WISTERIA ISLAND: The King of Spain and Roger Bernstein
This week the cloud on Wisteria Island’s title was apparently made a permanent feature. A three-judge panel from the Eleventh Circuit Court of Appeals has ruled that the statute of limitations on an action to clear the title has run out. The Eleventh Circuit upheld a previous ruling by Federal Judge Jose Martinez who last year dismissed FEB Corporation’s lawsuit against the US Government.
Under the “Quiet Title Act” the suit had to be brought within 12 years of the time the Plaintiff (or his predecessor in interest) knew or should have known that the federal government was claiming ownership of the land.
The 1951 Navy claim to Wisteria Island, sent to the State of Florida, is “more than enough,” the Eleventh Circuit decided, to establish that a reasonable person should have known of the cloud over his title.
Lawyers for FEB Corporation argued that the federal claim, valid in 1951, was erased in 1953 by the Submerged Land Act (SLA).
By way of the SLA, the federal government conveyed to the coastal states the bottom of the sea up to 12 miles from their shores, including spoil islands like Wisteria Island.
FEB argues that the government had long abandoned its claim, even recognizing that FEB owned the island when it leased it for a few years for the training of Special Forces and Navy Seals.
Interestingly enough Blue Paper editor Naja Girard is named repeatedly in FEB’s court documents, accused of having convinced the government to join in her environmental crusade and of reviving the long defunct ownership claim.
The Appeals Court disagreed with Bernstein. The panel notes that the SLA has several built-in exceptions; specifically “all lands filled in, built up, or otherwise reclaimed by the United States for its own use” were not transferred. Since it is undisputed that the federal government created Wisteria Island from channel dredge materials and formally claimed to own it in 1951, a reasonable person should have known that the government’s claim could have survived by way of the ‘built up by the US for its own use’ exception and that it could have resurfaced at a later time. A reasonable person would have brought a legal challenge to the government’s claim before the expiration of the 12-year statute of limitations. Quoting a series of precedents, the panel observed that a conveyance of land by the federal government must be “clear and unequivocal” and any ambiguity must be construed in favor of the government.
As to the evil influence of Blue Paper editor Naja Girard over government officials, the Court wrote: “Be that as it may, it would be immaterial to the statute of limitations question.”
What now?
FEB Corp. could try to have the Eleventh Circuit’s decision reviewed by the US Supreme Court. The Bernsteins have paid property taxes on Wisteria Island for two generations. Roger Bernstein’s father bought the island in 1967 for $155,000.
Roger Bernstein has qualified the government’s action as a “land grab.” Using the price of a vacant lot on nearby Sunset Key as a basis, the island’s value could possibly approach 150,000 Million (if it could be fully developed).
The Supreme Court however accepts only about 1 percent of the roughly 7000 petitions it receives each year and typically chooses cases that would resolve important legal issues with far-reaching implications. Whether the owner of Wisteria Island knew or should have known of a Navy claim might not reach that level.
Even if FEB could somehow revive the case, its chances of prevailing on the merits are very slim: Navy archives show that in 1952 [before the passing of the SLA) the Navy was embarked in the preliminary stages of developing Wisteria Island into a Fuel Depot. This evidence could very well satisfy the SLA’s “built by the government for its own’ use exception to the transfer of land.
On March 18, 1982, by way of a Secretary of the Interior Public Land Order [PLO 6214] the island was withdrawn from the Navy and was assigned to the U.S. Fish and Wildlife Service to be managed as a part of the Florida Keys National Wildlife Refuge system. The Navy however is interested in using the island to deposit dredging material and for the training of Special Forces.
Because of the statute of limitations, Bernstein is unable to sue the government to clear title. However there has been speculation that FEB Corp might try to force the government to bring suit against FEB by moving forward with some development of the island thereby causing the ownership dispute to be decided one way or the other. The County however has indicated that no development applications will be processed so long as ownership of the island remains in dispute unless FEB can show that the United States government has given its consent.
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Here’s the Eleventh Circuit ruling.
Here is Naja Girard’s original email to the Bureau of Land Management.
Here is the letter from BLM to Naja Girard stating that the US government does own the island.
The Bluepaper has more credibility and respect now more than ever , raising the bar for local investigative journalism sadly declining in Monroe County. Can you think of any other media that has risen to this level? Not in a long time- maybe before Solares Hill was bought by the Key West Citizen. There’s no equal to their commitment for telling the real story. Congratulations you guys. Thanks.
Nice work!
I especially liked Naja’s email letter to the BLM. Superb!
“The evil witch strikes again!”, I can imagine Roger Bernstein mumbling somewhere. The evil witch, Naja Girard. “What a dirty deed, digging into Wisteria’s title history and presenting it to BLM. What a dirty, underhanded deed!”, I can hear Roger, the white- knightly tax lawyer, mumbling, somewhere.
This ex-real estate lawyer recalls from law school Real Property Law 101: the buyer of real estate receives no better title than his predecessors in title received. Looks to me, Papy and the State of Florida all knew it was a land grab attempt, a gamble, well sort of – wasn’t Papy told, or thinking, he would get his money back from the State of Florida, if the feds ever laid claim to Wisteria? This ex-real estate lawyer has to think that 1951 letter, and the state giving Papy only a quit claim deed, made a seriously unfavorable impression in the minds of the 11th Circuit 3-judge panel regarding Roger’s lamentations that the entire matter was a bewitching, from which he and his saintly family deserved to be delivered, or perhaps exorcised works better.
Even so, this ex-real estate lawyer himself does not view Roger’s defeat by the evil witch as being a mere technicality. Any evil there is in this matter is rooted in the original land grab attempted by Papy and the State of Florida, which original sin, I imagine, if the case ever is tried on the merits, instead of on the statute of limitations, will get plenty of attention.
However, there is a technicality that needs mentioning here. Roger can ask for a rehearing before the entire 11th Circuit Court of Appeals, and perhaps he has to do that, and lose, in order to petition the U.S. Supremes to review the case. Throughout all of which legal proceedings, the original sin will remain in plain view, despite Roger’s clever attempts to cause the federal courts, and everyone else, to believe the original sin here was done, yep, by an evil witch, just like what many people today say happened back there in the Garden of Eden. Some things just never change.
Now, and in fact, a warlock was involved to some degree in Roger’s nightmare. The warlock was told in a dream to tell the evil witch to keep digging, because there was more there to unearth about Wisteria’s past, which Roger didn’t want unearthed, if he even knew it existed. And so the warlock told the evil witch about his dream, and that he figured it was angels who had given him that dream, probably the devil’s angels, since in Roger’s own mind, he surely was surrounded by God’s angels.
And so the evil witch dug some more, and she found some more, and she presented it all to BLM, which, blinded by God’s angels Roger believed in his heart were looking out for him, ruled the U.S. government had no claim to Wisteria. But, hark! Something reached into BLM’s heart and changed its mind, and BLM decided the U.S. government actually did own Wisteria. Whereupon, for sure, the evil witch was revealed in all of her black glory, while the saintly Roger did all sorts of devilish things to try to get Wisteria developed anyway, into Sunset Key Deux, which, as far as the warlock was able to determine during a ride in a skiff around Sunset Key, had not one single native plant on it, all of its vegetation was from the Homestead, Florida area, and the architecture was copycat and looked like something a Hollywood, California plastic surgeon had designed.
Even so, the warlock felt sorry, in a way, for Roger and his clan of bright shining knights and refined ladies in waiting. Then, moved by a thought from out of the blue, before the evil witch was even close to striking BLM with her black magic, the warlock lobbied a local mover and shaker, who just also happened to be the warlock’s best friend in the Florida Keys, as well as in Roger’s Wisteria Island Deux camp, whose skiff it was that had carried the warlock around Plastic Key, to suggest to Roger that he offer Wisteria Island to the City of Key West, for free, to be a public nature park in perpetuity. In exchange for which public-spirited-donation, Roger and his business partner, the Walsh family, owners of Plastic Key and the Westin Hotel, next to Mallory Pier, would receive a 99-year lease, at a nominal fee, on a few acres of Truman Waterfront near the Westin, on which they would build a 5-star hotel, which the Walshes were in the habit of doing on the eastern U.S. seaboard. The city would get 1 percent of the gross revenues off the top, and Roger and his family and the Walshes would get everything else the hotel made, as well as lasting gratitude from the people of Key West for their beautiful new nature park, Wisteria Island. A beautiful win-win for all concerned.
Several times, the warlock lobbied his best friend to pass that win-win on to Roger. Several times the warlock published the win-win at his own website, goodmorningkeywest.com. And, that local lawyer Michael Halpern had told the warlock, the win-win was brilliant! Yet not one peep did the warlock hear back from the saintly Roger’s direction, even acknowledging the win-win the warlock had been given by some dark evil force in the heavens – it had to be a dark evil force, since Roger and his clan were surrounded by angels of the light!
Now look at St. Roger’s predicament. Quel dommage! (What a pity!) It’s enough to cause the warlock to feel sorry for the poor saint – almost! Even as the warlock now wonders what new sport the angels of light might advise in the saint’s dreams, that he should do to banish care in his kingdom? Even as the warlock feels there is one thing else to mention, which he only learned from the evil witch this past week.
The warlock was mistaken, the evil witch said, in thinking Roger’s ancestors had given Bernstein Park on Stock Island to Monroe County. No, it did not happen that way. What happened was, the Bernsteins sold the land to Monroe County above the market price, with the condition the park be named after the Bernsteins. The County Commission went along with it.
Perhaps the current county commissioners don’t know how that went down. Perhaps they do know. In all events, the county commissioners should instruct county staff to entertain nothing further from the Bernsteins, which has directly or indirectly to do with Wisteria Island, until and if the Bernsteins establish in the courts that they own the island, and the US government does not own it.
We’ve waited many years. We’ve spent hundreds of hours driving up and down the keys, talking with elected officials, attended dozens of meetings, and spent countless hours gathering signatures for what many referred to as the Wisteria Island petition in which we changed the Charter of Key West and gave citizens and voters a strong voice in the city’s acquisition of land (or sale of city owned land) – the Peary Court vote took place because of this charter change.
Finally this appeal has ended and Nature vs Developer has been decided.
Hopefully Fish and Wildlife will work something out with the Navy so the land can remain natural. Key West, an island that is so over built, over developed and over crowded where greed and money rules – Wisteria Island la Natural gives us hope and nature a place to live and thrive.
Thank you Naja and Arnaud for all the time and research you have put into fighting to preserve this beautiful island.
A glorious example of investigative journalism and thank you for doing this. We are all made better for the work of Blue Paper editors. If there were a “kiss” emoji I’d post it. Martha Huggins
WHAT IF?
I have often wondered looking back, what if the Bernsteins and F.E.B had not been so greedy and simply built the 2 houses on Christmas Tree (Wisteria) Island that Monroe County LDR’s allowed, instead of chasing the excessive dollars they thought 168 residences would command? Until the excessive development lite up our radar it is very possible Bruce Ritson would not have created the petition many of us spent days gathering signatures, which changed our local charter allowing the voters to decide land acquisitions and sells – it is likely Berstein might have built the 2 legally permitted houses on Wisteria, and sold each for several millions of dollars instead of now being left with only years of attorney expenses and paid property tax receipts. Greed may have well saved Wisteria!
Never doubt that a small group of committed citizens can change the world (or an island). Indeed it is the only thing that ever has. MM
They would have property that at closing table would be rejected by a title company. Only a dam fool would buy it and no bank would touch it. And he could face criminal charges and fines and be required to return it to natural condition again. You can’t simply build a house on ground you don’t own and force the real owner to sell.
Bernstein is just a greedy man wanting to make even more millions. He knew it was a gamble and tried. He needs to give it up and cut his loss. For the good of Key West it needs to remain just the way it is. It is part of the charm of Key West. All it would do by developing it is add to the problems of no workforce housing. Maybe Bernstein bribed the wrong people. And just maybe the tax payers will see just what type of people it elected.
Naja did a fantastic job that few others would have worked so hard without pay for a cause worth fighting for.
Naja and Arnaud are simply the BEST. Great work Blue Paper!!!!
Thanks for bringing up the name of Bruce Ritson , may he be fondly remembered and honored with the other patriots who , little men, and women, stood tall at last for the soul of old Key West.
Okay, you won Wisteria but you’re going to lose Truman Waterfront Park if you don’t speak up, IMO. Instead of large, open areas you will probably end up with a parking lot and whatever in the middle of one open space and townhomes, etc. on the large recreation field – with the PAL building demolished. I’ve heard it all, but for me, and this also goes for what I believe is the vast majority of people in Key West, NO REASON is a good reason to ruin what could be a beautiful park for EVERYONE.
The present Advisory Board has most of the same people still on it – so it’s a stacked deck with the old majority in favor of not listening to anything else but the present Plan, and if the Board voted in favor of changes (which I have recommended) to the Waterfront Master Plan, then the city would have to listen.
What can you do? Speak up to your Mayor, City Commissioners, City Manager and Planning Director, and tell them that the present Park Plan needs some serious work done on it.
Three cheers for Naja, Arnaud and The Blue Paper. Hip Hip Hoorah!
Ben why don’t you do a. vide interview with Bluepaper, please? Show us what you think . Educate the uneducated. Thanks
Here is a link to the Guest Column penned by Ben published last week: https://thebluepaper.com/truman-waterfront-park-plan/
Got that , thanks, but how about some comparison site plans or other visual stuff for the under educated , like me, so we CAN make our opinions known as he suggests.. Personally I agree with his ideas mostly, but wonder about housing there . Sure would be great if commissioners Payne can get the harbor back too.
Naja & Arnaud
As per usual, groundbreaking investigative journalism that cogently presents and blends corroborating information into a meticulous end product. Identifying clear and convincing evidence that has exposed the questionable actions of the powerful, their misdeeds and some outright corruption; has cleansed and put on notice the ‘dirt’ that appears to have infiltrated and gathered within some of our compromised governmental agencies.
Naja and Arnaud are on the firing line of life. Making substantial points where the rubber meets the road. “All that matters”, is evolving towards its greatest potential has a result of their efforts.
Everyone is tending to their activities. All are aware of their brilliant and creative genius. They’re courageously requiring all aspects of governance to keep on their toes.
The investigative vanguard you’ve birthed and maintain brings light into the world.
Thank you…
zobop & All,
I made a complete presentation of my Plan with visuals and estimated COSTS and REVENUES at our last Advisory Board televised meeting of March 21, but unfortunately there were just a few citizens in attendance and the KW Citizen did not give the Plan coverage.
The housing idea of 5 – 2 story Conch style houses is in an out-of-the-way area that is within the 6.6 acres that at one time was offered to Bahama Village, and that potentially could be used in part as a form of COMPROMISE for Bahama Village to receive part of the revenue from the rentals. However, the Bahama Village folks and their proponents apparently did not catch on to this point. The housing units consist of 5 commercial spaces on the 1st floor and only 5 residential spaces on the 2nd floor. I would normally be against housing in the Park, but these Conch style houses could actually turn out to be a great and interesting asset with possible yearly revenue of $600,000 to help pay the bills – as well as showing off a style of Key West architecture/ginger bread. The area of the housing/commercial is approximately 160′-180′ deep by up to 300′ in length – so there is plenty of room there and not much else could be reasonably done there.
The Conceptual park design presented by the city’s Planning Department is shown in the February 26, 2016 issue of the KW Citizen, while the actual Master Plan has been around for awhile but has since been changed 2-3 times. You can probably pick up a copy of the Master Plan from the City Planning Department located in Habana Plaza on Flagler Ave. I would be glad to answer any questions in as much depth as anyone wants about my Plan and the Park – if The Blue Paper editors would allow.
Just guessing here, but it could be that what has thrown some people off track with my Plan is that it is surprisingly simple but highly effective in bring forth both lots of open space and necessary revenue. I believe many expected something very complex – but it doesn’t have to be that way.