Key West The Newspaper

by Arnaud and Naja Girard…….

Roger Bernstein had his chance last Tuesday to convince a federal judge that his company, FEB Corporation, not the US Government, owns Wisteria Island.

“Well, I remember when, as a young man in the Navy stationed in Key West,” said Judge Jose Martinez, “our guys used to go swim out by Wisteria Island. I thought it was ours.” That remark probably caused some serious stomach rumbling in Bernstein’s group of white-haired lawyers.

At stake is the fate of the last desert island in Key West harbor.  For more than 40 years Bernstein’s family has claimed to be the owner, even paying County property taxes. But three years ago, when they tried to develop it into a luxury resort, the Federal Government threw a wrench into those plans by claiming the United States owned the island, not the Bernsteins.

Bernstein hired well-known attorney Barry Richard [George Bush’s attorney in the tussle with Al Gore over the Presidency] and filed suit in federal court under the Quiet Title Act [QTA].

There are two issues before the court:  The QTA’s 12-year statute of limitations and the actual ownership dispute, which apparently depends on whether the island was “built-up by the US Government for its own use.”

According to Richard, the 12-year statue of limitations has not expired because it only starts running from the moment an owner [or his predecessor in interest] knew or should have known of the Federal Government’s claim and, as Richard points out, a notice from the Bureau of Land Management claiming the island is dated November 2011.

There are of course the other letters:  The infamous letters unearthed by The Blue Paper back in 2010, which kicked off this whole controversy.  That’s the September 1951 letter from the US Navy to the State of Florida telling the state not to sell the island and the letter from the State Attorney General recommending that State Representative Bernie Papy Sr., the first purchaser of Wisteria Island, be warned of the United States’ claim to Wisteria and that he would be buying the island without warranty and “at his own risk”.

Bernstein and his lawyers now concede that the State of Florida didn’t own the island when it was sold to Papy in 1952.  But they say that it doesn’t matter because, in 1953 the US Congress granted all nearshore submerged land to the State. That grant included spoil islands like Wisteria and, according to Richard, that validates the original sale and Bernstein’s title.

The Government argues that, first of all, Bernstein’s action under the QTA is invalid. Anthony Erickson-Pogorzelski, the Assistant US Attorney, says the QTA was adopted in 1972 and has a 12-year statute of limitations – which means that the QTA was not intended to allow litigation of any claims that accrued prior to 1960.

According to Erickson-Pogorzelski, even if a QTA action could somehow be heard, under the law, Bernstein’s title could only be validated by a “clear and unequivocal” conveyance of ownership from the United States to the state. But the Act of Congress that Bernstein is referring to, The Submerged Lands Act of 1953 [SLA], he says, has many built-in exceptions.

What the Government is saying is that Wisteria Island fits into one of the core exceptions to the 1953 grant to the state:  “property built-up by the United States for its own use” and therefore the Act was not so unequivocal as to mislead Papy or his successors into believing that the 1951 Navy claim had been erased.

Bernstein, of course, claims that the island was not built-up for the Government’s use, so there was no reason why anyone who purchased the island after 1953 should have thought the exception applied.  He maintains Wisteria was never anything more than a place to dump spoil.  Apparently Bernstien’s lawyers even filed the deposition of Paul Topino, the Key West construction contractor who Richard tells us, remembers following his father around, who was busy with Navy dredging projects, and was dumping spoil on Wisteria Island during World War II.  But that is when the Judge asks him:  “But, isn’t that a ‘use’ by the United States?  If the Navy built-up the island to dump spoil – isn’t that a ‘use’ by the Government?”

There was a moment of silence before Erickson-Pogorzelski jumped on the bandwagon.  “Absolutely,” he says, happy with his good fortune, “dumping spoil is a Government use.”

At this point it seems possible that Roger Bernstein’s case could be dismissed on the basis of the 12-year statute of limitations.

Then comes the second part of the hearing:  “The merits ”

Since the Government gave all submerged land and spoil islands out three miles to the state in 1953, but excluded islands built-up for its own use, the only question is whether or not Wisteria Island was built by the Government for its own use prior to the enactment of the SLA in 1953.

Bernstein’s lawyers offered into evidence an August 1956 letter from the Chief of the Bureau of Yards and Docks to the Chief of Naval Operations which states, “It would appear that … the Navy would have a difficult time in proving that this island was built up for Federal use, inasmuch as the records indicate that the only reason for the establishment of the island in 1943 was a site for the deposit of spoil.  It appears, therefore, that it will be necessary to acquire this island by condemnation proceedings.”

“I am sure you were delighted to find that letter,” said the Judge, “I am not necessarily going to give it as much weight as you would wish.”  The Government is made up of many people, he explains. Apparently a statement by a bureaucrat doesn’t serve to bind the United States government.  It is totally possible that, as the Judge put it,  “the Government took the path of least resistance,” even though the United States actually owned the Island.

Bernstein’s lawyer claims that there is absolutely no proof that the Government ever intended to use Wisteria Island.  This causes a bit of a stir over in our section of the courtroom, since we have personally done extensive research on this subject, including several trips to various National Archives.

In 1908 there is evidence that the Navy was contemplating putting a coal shed in the area of Frankford Bank.

Then in 1917 there was a plan to extend the Naval Base onto Frankford Bank. Plans were for the creation of a large island that would include dry docks and even an airstrip.

Around 1920, following the dry dock/airstrip plan, a large amount of spoil was dumped onto Frankford Bank where Wisteria Island would eventually lie.

Another blueprint dated 1927 shows a 3-acre spoil island 25 feet high at its peak with a shack and small docking area.  It would later be leveled and eventually became what is now Wisteria Island.  The state would try to sell it to local developers in 1924, triggering strong opposition from the Navy.  Within months the Secretary of the Navy actually obtained an order from the US president himself, Calvin Coolidge, who issued  Executive Order 4060 reserving the new island and surrounding area for Naval use.

The Navy also had another reason for creating Wisteria Island.  As early as 1912, the Navy pushed for an  extensive breakwater northwest of Frankford Bank to create a much larger Man-O-War Harbor.  The Army Corp of Engineers found the project was too expensive, but agreed that the Navy docks needed more protection.  In fact, Roger Bernstein himself testified under oath before the Monroe County planning Commission that the island was built as a buffer against winds and waves out of the west.

But when it comes to evidence of the Government’s intended use, the ‘hot tamale’ is a plan dated August 1952, the summer before the Submerged Lands Act was enacted, when Wisteria Island appears in the Navy’s Master Shore Station Development Plan as the new fuel depot.  Detailed plans later show the island was to be connected by a network of underwater pipelines to the Seaplane Basin, the Trumbo Docks and the Submarine Base at Truman Harbor.

This plan however was derailed by the intrigues of State Representative Bernie Papy, Sr.,“King of The Keys.”  Bernie Pay is reported in the newspapers of the time as someone who discussed large scale improvements with top Navy brass in Washington DC.  He could have known what was in store for Wisteria Island, positioned himself and persuaded the State of Florida to sell him the island ahead of the Navy development. In 1956, the Navy was apparently ready to settle the dispute for $ 12,000 (more than four times what Papy had paid) but Papy was asking over $ 100,000.  The Navy ignored him and eventually built-up Tank Island [now Sunset Key] instead — what the Judge called the “path of least resistance.”

It would seem that the Government could easily establish that Wisteria Island was created to be “used” as both a buffer for the Trumbo docks and as the basis for Naval Base expansion.

Judge Martinez may throw the case out due to the statute of limitations, decide on ownership, or he could set the case for trial.

Stay tuned.

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