Florida Keys News
Wednesday, June 4, 2014
Wisteria was 'site for spoil'
Judge can issue summary judgement

The Key West-based FEB Corp. and the federal government have made their last attempts to have a judge rule in their favor over the ownership of Wisteria Island before the issue goes to trial later this month.

The federal Bureau of Land Management and FEB Corp. have submitted motions for what is known as summary judgement, which would result in federal Judge Jose E. Martinez ruling in favor of either party without having to go to trial.

FEB Corp. has long maintained that the Bernstein family legally purchased the island in 1967, and has never hid the fact that it owned it and wanted to develop it. The family has paid taxes on the roughly 22-acre island for decades, and the Navy in the past has asked the family's permission to train on it.

In its latest motion, FEB included a 1956 letter between Naval officials that FEB officials argue bolsters their case. The letter is from the Navy's chief of yards and docks and is written to the chief of naval operations.

The Navy appeared interested in taking back Wisteria Island and possibly other spoil islands that it created when dredging the channels and harbors around Key West. The Navy, at that time, claimed the "island is strategic in the operations of the subject facility (the local base)," according to the letter.

"The Navy would have a difficult time in proving that this island was built up for federal use, in so much as the records indicate that the only reason for the establishment of the island in 1943 was a site for the deposit of spoil," the letter states.

The chief of yards and docks, whose signature is not readable on the copy of the document FEB submitted, recommended the Navy buy the island for $12,000 if the government agency was still interested in obtaining it.

FEB obtained the letter two months ago after having its researcher review Naval archives in Washington, D.C. It filed a public records requests with the Bureau of Land Management and Navy in the past two years for such pertinent documents and never received this letter, FEB Corp. President Roger Bernstein said.

"This goes to the heart of the case," Bernstein said. "It's not a collateral document. ... It did not take too long for our researcher to find this document."

Bernstein did not fault the U.S. Attorney's Office, which is handling the case for the Bureau of Land Management, calling that government agency "nothing but professional," he said.

In its motion, the Bureau of Land Management has reiterated its claim that state of Florida did not have the right to sell the island to its first private owner because the Navy never gave the land to the state.

The government's attorney, Assistant U.S. Attorney Anthony Erickson-Pogorzelski, has continually cited a Sept. 27, 1951, letter from then-Florida Attorney General Richard Ervin. The letter shows that the original owner, former Rep. Bernie Papy, was aware that the military was still claiming ownership of the island when he bought it from the state.

Ervin questioned whether the Navy, or any other federal agency, deeded the land to the state and whether the state can sell something it didn't actually own.

"The United States acquired title to the subject property from Spain under the terms of the Adams-Onis Treaty," Erickson-Pogorzelski wrote in is motion for summary judgement. "This claim to title is undisputed and is superior to any claim asserted by the plaintiff."

If Judge Martinez does not issue a summary judgment, the case could go to trial as early as the week of June 23, according to the federal court docket. The judge will rule either way, as it is not a jury trial but a bench trial.

The Bureau of Land Management ruled in 2011 that the federal government owned the property, which sparked FEB Corp. to file its lawsuit.


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