The legal battle over ownership of Wisteria Island continued this week, with F.E.B. Corp. refuting the government's request to dismiss the company's lawsuit and argued that the government's ownership claim has produced a "cloud on the title of several" islands off the Florida Keys that are now in private hands.
A year ago this month, the federal Bureau of Land Management ruled that F.E.B. Corp. did not own, and never had owned, Wisteria Island, because the federal government never deeded the island to the state, which sold it to the first private owners of the island in 1952.
The bureau states the island is the possession of the U.S. Fish Wildlife Service, which oversees all the islands in the Key West and Great White Heron national wildlife refuges. In response, F.E.B. filed a lawsuit in federal court earlier this year claiming ownership of the island.
The government requested the judge dismiss the case because the statute of limitations has run out and the court "lacks jurisdiction." F.E.B. filed its response with the court Monday, arguing the United States had never acquired title to the island and that F.E.B.'s ownership was confirmed by the Submerged Lands Act in 1953.
"The United States had not, over the last 60 years, seen fit to exert any interest or exercise any ownership rights in the Island," F.E.B. wrote in a press release issued Wednesday. "FEB also informed the court that recent actions of the United States had thrown a cloud on the ownership of various islands and submerged lands in and around Key West, which the court should not allow to continue ... . Many of these parcels are now in private ownership, and the United States recent actions could cloud all private title to the same."
There are several privately owned islands inside the boundaries of the Key West National Wildlife Refuge, which include Ballast Key, owned by David Wolkowsky, and Sunset Key, owned by the Walsh family. The Walsh and Bernstein families are co-owners of Wisteria Island and have partnered to develop the island. The government has not issued formal reviews of those islands to see if they are owned by the government.
The first private owner, Bernie Papy, knew when he purchased Wisteria Island in 1951 that the Navy was still claiming ownership, according to a Sept. 27, 1951, letter from then-Florida Attorney General Richard Ervin.
When the late Papy, a former state representative who later sold the island to the Bernsteins, was attempting to purchase the island from the state of Florida, Ervin questioned whether the Navy or any other federal agency had deeded the land to the state, or whether the state was selling something it didn't actually own. At the time, the Navy was still claiming ownership, but the state sold the property anyway.
"I am unable to state definitely whether or not the Navy's claim is valid," Ervin wrote to the Department of Agriculture in 1951.
"However, I do think the claim is debatable enough and so shrouded in antiquity that I think the best course would be for the (State Board of) Trustees to complete the sale and explain the Navy's claim to Mr. Papy and allow him to accept the trustees' deed at his own risk."
Ervin's letter is the backbone of the federal government's case and part of the justification for reclaiming Wisteria Island.