Federal judge rules the government owns an undeveloped island off Key West — not a developer

Gwen Filosa

Who owns this raw and undeveloped man-made 39-acre island just off Key West called Wisteria Island?

The federal government does, a U.S. District Court judge has ruled, and not a local developer.

Judge Jose Martinez granted the U.S. government summary judgment in a 2011 lawsuit brought by developer Roger Bernstein who lay claim that the island belonged to his corporation, F.E.B.

The government’s interest in the case, however, only arose after two Key West journalists, Naja and Arnaud Girard, dove into the history of Wisteria Island after seeing Bernstein’s plans to develop it.

“My husband and I had a lot to do with it,” Naja Girard said. “All the research convinced the government.”

Wisteria Island ruling, July 31, 2020. by Gwen Filosa on Scribd

In 2011, the Girards, who own a Key West marine assistance and boat salvage company, made three trips to the National Archives in Washington, D.C., and pored through records.

“It was sort of a passion,” Naja Girard said. “We asked for what you have about the Navy and the Key West area and they brought out all these boxes. We sat there for days.”

They hit the jackpot: documents that suggested the Bernsteins could not own the island because the Navy had not given up title to Wisteria until 1982. And when it did, it transferred it to the U.S. Department of the Interior, not the state of Florida.

By the time the couple had compiled their evidence that Wisteria belonged to the government, they had persuaded the U.S. Bureau of Land Management to write to them in November 2011 that, because Wisteria was built by the Navy, it was public land.

The lead attorney for F.E.B. did not respond to a request for comment on Thursday. The corporation could still appeal Martinez’s decision.

Wisteria Island in Key West Harbor has so far been left undeveloped as the city has become a major tourist destination.
Wisteria Island in Key West Harbor has so far been left undeveloped as the city has become a major tourist destination.

The Bernstein family in 2012 said they were stunned the feds disregarded the warranty deed their late father, Ben, obtained for $155,000 in 1967, the four decades worth of property taxes they’ve paid, and the Submerged Lands Act of 1953, which they believe confirms their ownership.

“This is a land grab by the federal government of epic proportions,” Roger Bernstein told the Miami Herald in 2012.

Wisteria sits across from another island, the ultra-developed luxury community of Sunset Key.

Wisteria, which some Key Westers call Christmas Tree Island, sits in the Gulf of Mexico. Over the years it’s been home to hippies, outcasts, the homeless and even at times thieves who used it as a chop shop.

Naja Girard guesses that about 20 people call it home today. She has led various cleanups of the island over the years and says that before Hurricane Irma, Wisteria was pristine.

But Irma trashed lots of boats people called home in the harbor and some people built camps on Wisteria, she said.

Sometimes tourists venture out to it. Violence happens every once in a while. In 2018, a couple said they were assaulted by people who live on Wisteria who didn’t take to outsiders.

A man was stabbed in the stomach last month, but police haven’t found the culprit.

Wisteria is not a natural island. It was formed as a result of dredging done under the Navy in nearby Key West Harbor during the first half of the 19th century.

A significant dredging project in 1943 made the island what it is today, according to undisputed facts listed in the case records.

In 1951, the state decided to sell Wisteria. That drew an objection from the federal government, which said it was their property. But a year later, Florida sold it to a private party through a quitclaim deed that included no warranties of title.

The title passed from private owner to private owner until F.E.B. bought it in 1967. The federal government appeared to defer to F.E.B. and entered into licensing agreements with the corporation to use Wisteria as a Navy training ground from 2004 to 2006.

Martinez quoted some case law on the legal dispute: “Wisteria Island’s origin is undisputed: It was built up by Navy contractors, who used the land for the government’s purpose and benefit of storing fill accumulated from nearby dredging operations.”

Then Martinez wrote, “Creation was not the use. Dredging was the use.”

The Girards were pleased with the decision, of course. They hope the property can remain development-free and perhaps become a recreational area for locals.

“It was pretty amazing the government took it on,” Naja Girard said. “You have this personal advocacy for something and the U.S. government takes on your battle, and then you win. That doesn’t happen every day. “