Key West The Newspaper

by Naja and Arnaud Girard…

Roger Bernstein, the man who claims to own Wisteria Island, decided last week to appeal a Federal Judge’s decision that, if allowed to stand, could very well cost Mr. Bernstein the island.

It’s been a bumpy ride for the want-to-be developers of Wisteria, the last desert island in Key West harbor. Their efforts to have it annexed to Key West in 2007 were buried under a landslide after the passing of a grassroots referendum.

Among other things, they’ve been exposed for their desperate attempts at wining and dining City Commissioners and for sending Dirty Joke Dennis, a violent convicted felon, to infiltrate a group of opponents.

The project came to a screeching halt after The Blue Paper discovered and published what is now known as the “Navy’s Claim.”

In 2012 Blue Paper reporters found enough documents in the National Archives in Washington D.C. to convince the Federal Bureau of Land Management that the Island had been sold, unlawfully, by the State of Florida, to Florida Representative Bernie Papy, “King of the Keys,” and that the island still belonged to the federal government.

The County, reacting to a BLM claim of ownership made public in 2012, stopped processing Mr. Bernstein’s development applications. He sued the federal government under the Quiet Title Act. But last month Federal Judge Jose Martinez dismissed the case under the Act’s 12-year statute of limitations.

Mr. Bernstein is appealing. He will likely claim the District Court didn’t give enough consideration to a change in the law that occurred in 1953.

Roger Bernstein admits that the State of Florida sold the Island at a time when it did not own it. Legally all the state did was to issue a Quit Claim Deed. It transferred any and all interest it had in Wisteria Island to Bernie Papy. That was 1952.

In 1953, Congress passed the Submerged Lands Act [SLA] and in effect gave all submerged lands, including spoil islands, to the coastal states. Mr. Bernstein claims that the defect in the title of 1952 was erased in 1953 and since the state had passed all of its rights to the island over to Papy, clear ownership of the island was held by Papy at that point. The fact that Florida’s Attorney General had written a letter warning of a cloud on the title in 1952 was now irrelevant.

The federal government argues that the Congressional transfer in 1953 was not “clear and unequivocal,” that there were in fact several exceptions included in the 1953 Act. Specifically, the federal government kept islands that had been built by the government “for its own use.”

Mr. Bernstein’s attorneys claim there is no evidence that Bernie Papy or any subsequent owner knew whether the Navy had ever intended to use the island. They claim the statute of limitations hinges on whether a reasonable man should have known that the government still had a claim to Wisteria Island after 1953.

Mr. Bernstein will argue that the federal government did not assert a claim again, after 1953, until the BLM sent the 2012 letter and that a reasonable person could have believed that the 1953 Act had cleared the title of the government’s claim. The 12-year statute of limitations, they will say, should have begun running in 2012. The Eleventh Circuit Court of Appeal might agree.

This, however, doesn’t mean Mr. Bernstein will ultimately win on the merits. To prevail, the Government would have to prove that title had been retained under the provisions of the SLA and that 1] it had built the island and 2] that it intended to use it.

The Blue Paper found documents showing that at various times the Navy envisioned projects for the island: first a coal depot, then a docking facility, a dry dock, and even an airfield.

We also found blueprints showing that in 1952, before the SLA passed, the Navy had developed a detailed plan for a large fuel depot on Wisteria Island connected by underwater pipelines to the seaplane basin, the Trumbo docks, and the submarine basin in Truman harbor.

In the end, it is absolutely undeniable that the Navy had not only built the island but also had always intended to use it.

Arguably, Papy, who was in and out of the Navy headquarters in Washington, D.C., may have known all about the fuel depot project and bought the island to position himself in a profitable transaction with the Navy. In any case, the Navy didn’t fall for it and built Tank Island [today Sunset Key] instead.

Mr. Bernstein could win the appeal but there’s little chance the Navy will lose the war.

 

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