Item J2 J2
BOARD OF COUNTY COMMISSIONERS
COUNTY of MONROE �� i Mayor Holly Merrill Raschein,District 5
The Florida Keys Mayor Pro Tern James K.Scholl,District 3
Craig Cates,District 1
Michelle Lincoln,District 2
David Rice,District 4
Board of County Commissioners Meeting
September 11, 2024
Agenda Item Number: J2
2023-2922
BULK ITEM: Yes DEPARTMENT: Planning & Environmental Resources
TIME APPROXIMATE: STAFF CONTACT: Brittany Burtner
N/A
AGENDA ITEM WORDING: Approval of an Interlocal Agreement with the City of Key West to
Partner to Provide Shoreside Facility Services for the Man of War Harbor Mooring Field.
ITEM BACKGROUND:
The Monroe County Board of County Commissioners ("BOCC") has long recognized that unmanaged
anchorages with historically high numbers of vessels in the waters surrounding Key West are
significant sources of abandoned and derelict vessels. Monroe County has the greatest number of
derelict vessels in Florida, a problem which causes significant environmental damage, navigational
hazards,public safety issues, and costs local taxpayers over $800,000 a year.
To address, mitigate, and reduce the significant negative impacts on navigation,public safety, and the
environment associated with such unregulated anchorage in Monroe County, in 2021, the Florida
Legislature enacted and the Governor approved Florida Statute § 327.4108(3)(a), designating Monroe
County as an "anchoring limitation area" and establishing a 90-day time limit for vessels anchored in
waters throughout the Florida Keys. This legislation included a requirement that two hundred fifty(250)
new public mooring balls be placed within one(1) mile of the Key West Bight City Dock and fifty(50)
additional moorings be placed within the existing Key West Garrison Bight Mooring Field, to ensure
that an alternative for the existing liveaboard community in this area was available prior to
implementing a ninety-day(90-day) time limit for vessels anchored in waters surrounding Key West.
In 2022, the Florida Legislature enacted and the Governor approved Florida Statute § 327.4108(3)(d),
which requires that one-hundred (100) new public mooring balls must be placed within one (1) mile of
the Key West Bight City Dock in order to generally apply the Monroe County anchoring limitation
area's 90-day anchoring time limit. Data collected by professional staff of the City of Key West,
Monroe County, and the Florida Fish and Wildlife Conservation Commission found that only 137
occupied liveaboard vessels were anchored in the vicinity of the Key West Bight City Dock. The
remaining vessels were either being stored and/or already in derelict condition. Therefore, it was
determined that 300 new moorings would exceed the needs of the existing liveaboard community in this
area. In addition, it was determined that installing 300 new moorings was not feasible due to
insufficient suitable space. This would create significant state and federal regulatory hurdles, likely
resulting in the inability to implement the 90-day anchoring time limit.
The BOCC subsequently approved Resolution No. 038-2022 at its January 21st meeting, directing
professional staff to begin the necessary steps toward achieving and expediting the implementation of at
least 100 new moorings, and to partner with the City of Key West to accomplish this goal and
associated management of this location. Monroe County hired Metric Engineering Inc. ("Metric
Engineering") in early 2022 to complete a Feasibility Study(the "Study") to acquire preliminary site-
specific data to assist in evaluating and determining the best location for the required 100 moorings.
Metric Engineering also conducted a shoreside facility analysis at the Key West Bight Marina, the
intended shoreside access and service location. Metric Engineering presented the results of the Study at
the BOCC's regular September 2022 public meeting, after which the BOCC directed professional staff
to pursue permitting a mooring field in the highest-ranked location surrounding Wisteria Island in Man
of War Harbor.
At its regular January 2023 public meeting, the BOCC directed professional staff to advertise a Request
for Proposals ("RFP") to hire a consultant to plan and permit the mooring fields in both Boca Chica
Basin and Man of War Harbor. At its May 2023 public meeting, the BOCC approved the selection of
Geosyntec Consultants Inc. d/b/a Applied Technology and Management("Geosyntec") to perform
mooring field design and permitting services and approved execution of a contract with Geosyntec at
the BOCC's regular June 2023 public meeting.
PREVIOUS RELEVANT BOCC ACTION:
January 2022—Direction to professional staff to pursue installing at least 100 new moorings within one
mile of the City of Key West's Key West Bight City Dock and to partner with the City of Key West to
accomplish this goal.
September 2022 —Direction to professional staff to pursue permitting a mooring field in the highest-
ranked location surrounding Wisteria Island in Man of War Harbor.
January 2023 —Approval to advertise a Request for Proposals ("RFP") for a consultant to provide
mooring field design and permitting services for the mooring fields in Boca Chica Basin and Man of
War Harbor.
May 2023 -Approval of the selection of Geosyntec Consultants Inc. d/b/a Applied Technology and
Management to perform mooring field design and permitting services.
June 2023 - Contract execution with Geosyntec to perform mooring field design and permitting
services.
INSURANCE REQUIRED:
No
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
Interlocal Agreement -_Monroe—County_and City_of Key_West.pdf
County Resolution 038-2022.pdf
United States of America v. F.E.B. Corp., 2024 WL 3635990, Case No. 18-10203-CIV-MARTINEZ (S.
D. Fla. May 30, 2024).pdf
FINANCIAL IMPACT:
Effective Date: upon execution
Expiration Date: ten years after execution
Total Dollar Value of Contract: N/A
Total Cost to County: N/A
Current Year Portion: N/A
Budgeted: N/A
Source of Funds: N/A
CPI: N/A
Indirect Costs: N/A
Estimated Ongoing Costs Not Included in above dollar amounts: N/A
Revenue Producing: N/A If yes, amount: N/A
Grant: N/A
County Match: N/A
Insurance Required: no
Additional Details: N/A
INTERLOCAL AGREEMENT
THIS INTERLOCAL AGREEMENT ("Agreement") is entered into this day
of , 2024, by and between the Monroe County Board of County
Commissioners ("Monroe County", the "County", or the "BOCC"), a political subdivision of
the State of Florida, and the City of Key West, a municipal corporation organized and existing
under the laws of the State of Florida ("City"), who shall hereafter be cumulatively referred to
as "the parties".
WITNESSETH:
WHEREAS,Monroe County has the highest number of derelict vessels in the state; and
WHEREAS,the issue of derelict vessels in Monroe County generates substantial public
health, safety, and welfare concerns regarding navigation, public safety, and the health of the
environment and imposes considerable financial burdens and resource costs on both the
residents of and visitors to the Florida Keys; and
WHEREAS,the unregulated anchorage west and east of Wisteria Island constitutes one
of the worst areas contributing to these very serious navigation,public safety,and environmental
problems; and
WHEREAS, the United States District Court for the Southern District of Florida
determined, by final judgment rendered in United States ofAmerica v. F.E.B. Corp., 2024 WL
3635990, Case No. 18-10203-CIV-MARTINEZ (S. D. Fla. May 30, 2024), that the United
States of America(the "Federal Government") owns Wisteria Island; and
WHEREAS, the waters of the Florida Keys of Monroe County, Florida, are situated
within the boundaries of the Florida Keys National Marine Sanctuary and have since July 26,
2001, been designated a federal No Discharge Zone by the United States Environmental
Protection Agency pursuant to Section 140.4(b)(1)(ii), Part 140, Subchapter D, Chapter I, Title
40, United States Code, as may be amended from time to time; and
WHEREAS, to address, mitigate, and reduce the significant negative impacts on
navigation, public safety, and the environment associated with such unregulated anchorage in
Monroe County, including but not limited to vessel abandonment, improper vessel storage, and
neglect leading to vessels becoming derelict, the Florida Legislature enacted and the Governor
approved Fla. Stat. § 327.4108(3)(a), designating Monroe County as an anchoring limitation
area and establishing a ninety-day (90-day) vessel anchoring time limit; and
WHEREAS, the Florida Legislature enacted and the Governor approved Fla. Stat. §
327.4108(3)(d),which requires that one-hundred(100)new public mooring balls must be placed
within one (1) mile of the Key West Bight City Dock in order to generally apply the Monroe
County anchoring limitation area's ninety-day (90-day) anchoring time limit; and
WHEREAS, Monroe County and the City of Key West find and conclude that
installation and establishment of the Man of War Harbor Mooring Field will significantly reduce
the number of derelict vessels in the Florida Keys,will ensure compliance with the federal Clean
Vessel Act, will decrease and minimize benthic damage, and will provide a reliably safe and
secure harbor for our local long-term liveaboard community; and
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WHEREAS, the City of Key West, via the Key West Bight City Dock, currently
provides, maintains, and manages paid shoreside dinghy dockage and bathhouse services for,
including but not limited to, vessels anchored in the currently unregulated anchorage west and
east of Wisteria Island; and
WHEREAS, the City of Key West, via the Key West Bight Marina at the Key West
Historic Seaport, currently provides a shoreside trash disposal location for, including but not
limited to, vessels anchored in the currently unregulated anchorage west and east of Wisteria
Island; and
WHEREAS,the City of Key West currently provides up to twenty (20)gallons of water
per day at its Key West Bight City Dock shoreside dinghy dockage for, including but not limited
to,vessels anchored in the currently unregulated anchorage west and east of Wisteria Island; and
WHEREAS, Monroe County and the City of Key West find and conclude that
establishment of the Man of War Harbor Mooring Field will address and meaningfully reduce
the serious negative navigational, safety, and environmental externalities associated with the
unregulated anchorage west and east of Wisteria Island; and
WHEREAS, Monroe County and the City of Key West find and conclude that
establishment of the Man of War Harbor Mooring Field shall permit general application of the
State of Florida's ninety-day (90-day) anchoring time limit; and
WHEREAS, for all of these reasons the parties desire to partner to implement public
moorings and associated management in this location known as the Man of War Harbor Mooring
Field; and
WHEREAS,the parties desire to enter into this Interlocal Agreement to mutually agree
in writing that Monroe County shall provide, manage, and maintain the Man of War Harbor
Mooring Field proper and that the City of Key West shall provide, manage, and maintain the
upland shoreside facility and associated services for Man of War Harbor Mooring Field tenants;
NOW, THEREFORE, in consideration of the mutual promises and covenants herein,
it is agreed by and between MONROE COUNTY and the CITY OF KEY WEST as follows:
SECTION 1. PUBLIC BENEFITS OF THIS INTERLOCAL AGREEMENT.
1.1 INCORPORATION OF RECITALS. The foregoing findings and conclusions
are hereby incorporated as if fully stated herein.
1.2 Monroe County and the City of Key West recognize the importance of this
Interlocal Agreement in providing both parties' local support to address the
anchorage and mooring of vessels and to address the serious negative navigation,
public safety, and environmental problems associated with such unregulated
anchorage in Monroe County, including but not limited to vessel abandonment,
vessel storage, and neglect leading to vessels becoming derelict.
1.3 Partnering to provide shoreside facility services for the Man of War Harbor
Mooring Field shall provide tremendous mutual benefits for the public at-large
whom Monroe County and the City of Key West represent and serve by providing
the public benefits of, including but not limited to, increased public safety and
orderly navigation, protection of the marine environment, and deterrence,
discouragement, and reduction of improperly stored, abandoned, and/or derelict
vessels.
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SECTION 2. GENERAL COORDINATION.
2.1 MONROE COUNTY shall be the permittee and holder of all permits for the Man
of War Harbor Mooring Field,the COUNTY shall be the permitted property owner,
via sovereignty submerged lands lease, associated with the Man of War Harbor
Mooring Field, and the COUNTY shall act as the liaison between and among all
permitting agencies regarding the Man of War Harbor Mooring Field.
2.2 The CITY shall remain the permit holder for and owner of the Key West Bight Marina
and all associated structures thereof,including the Man of War Harbor Mooring Field
shoreside facility.
2.3 MONROE COUNTY and the CITY shall work cooperatively to provide safe,
secure mooring and shoreside access for Man of War Harbor Mooring Field tenants.
SECTION 3. COUNTY'S RESPONSIBILITIES.
3.1 MONROE COUNTY shall provide, maintain, and manage the Man of War Harbor
Mooring Field proper.
3.2 The COUNTY shall require all Man of War Harbor Mooring Field tenants to
purchase and maintain a monthly dinghy dockage pass from the CITY.
3.3 The COUNTY shall monitor for compliance with and enforce the Man of War
Harbor Mooring Field Management Plan and all Mooring Field tenant agreements.
3.4 The COUNTY shall provide mobile vessel pumpout services for the Man of War
Harbor Mooring Field.
3.5 In coordination with the CITY, the COUNTY shall monitor dinghy dock usage
and swipe-card bathroom occupancy counter documenting usage of the shoreside
bathhouse and, in the event that such data evidences occupancy exceeding
reasonable capacity, the COUNTY agrees to assist the CITY in the upgrade or
replacement of the facility as necessary.
SECTION 4. CITY'S RESPONSIBILITIES.
4.1 The CITY shall continue to provide, maintain, and manage the aforesaid paid
shoreside dinghy dockage and bathhouse services, for Man of War Harbor Mooring
Field tenants.
4.2 The CITY shall continue to provide a shoreside trash disposal location at or similar to
the Key West Bight Marina at the Key West Historic Seaport location referenced
above.
4.3 The CITY shall continue to provide up to twenty (20) gallons of water per day at its
aforesaid shoreside dinghy dockage.
SECTION 5. TERM OF INTERLOCAL AGREEMENT.
5.1 This Agreement shall become effective upon execution by both parties and continue
in force for ten (10) years unless terminated by either party by providing the other
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parry written notice of termination, which must be given at least one hundred eighty
(180)days in advance of the effective date of termination. The parties may otherwise
agree to extend the term of this Agreement by a fully executed amendment to this
Agreement made by each party's duly authorized representative or governing body.
SECTION 6. INDEMNIFICATION.
6.1 To the extent permitted by law and subject to the provisions and monetary
limitations of Section 768.28, Florida Statutes, the CITY, as a state agency or
subdivision defined in Section 768.28, Florida Statutes, to the extent of the
COUNTY'S potential liability pursuant to section 768.28, Florida Statutes, does
hereby agree to defend, indemnify and hold the COUNTY, its officers, agents,or
employees, harmless from and against any and all liability, damages, costs or
expenses (including reasonable attorneys' fees, costs, and expenses at both the trial
and appellate levels)arising from the acts or omissions of the CITY or any third party
vendor contracted by the CITY in connection with this Agreement, up to the limits
set forth in such statute for its (the CITY'S) own negligent acts or omissions, or
intentional tortious actions,which result in claims or suits against either the CITY or
the COUNTY, and agrees to be liable to the statutory limits for any damages
proximately caused by said acts or omissions, or intentional tortious acts..
To the extent permitted by law and subject to the provisions and monetary limitations
of Section 768.28, Florida Statutes, the COUNTY, as a state agency of subdivision
defined in Section 768.28, Florida Statutes, to the extent of the CITY'S potential
liability pursuant to Section 768.28, Florida Statutes, does hereby agree to defend,
indemnify and hold the CITY, its officers, agents, or employees, harmless from and
against any and all liability, damages, costs or expenses (including reasonable
attorneys' fees, costs, and expenses at both the trial and appellate levels) arising from
the acts or omissions of the COUNTY or any third party vendor contracted by the
COUNTY in connection with this Agreement,up to the limits set forth in such statute
for its (the COUNTY'S) own negligent acts or omissions, or intentional tortious
actions,which result in claims or suits against either the COUNTY or the CITY, and
agrees to be liable to the statutory limits for any damages proximately caused by said
acts or omissions, or intentional tortious acts.
Nothing contained in this Section shall be construed to be a waiver by either party
of any protections under sovereign immunity, Section 768.28 Florida Statutes, or
any other similar provision of law. Nothing contained herein shall be construed
to be a consent by either party to be sued by third parties in any matter arising out
of this or any other Agreement.
SECTION 7. NOTICES.
7.1 All notices, requests, demands, elections, consents, approvals and other
communications hereunder must be in writing and addressed as follows, or to any
other address which either parry may designate to the other parry by mail:
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If to Monroe County: Acting County Administrator Kevin Wilson
Monroe County Historic Gato Building
1100 Simonton Street
Key West, Florida 33040
With a copy to: Robert B. Shillinger, Esq.
Monroe County Attorney's Office
1111 12th Street, Suite 408
P.O. Box 1026
Key West, Florida 33041-1026
If to Ci : City Manager
City of Key West
P.O. Box 1409
Key West, FL 33041
With a copy to: Ronald J. Ramsingh,Esq.
City of Key West City Attorney
P.O. Box 1409
Key West, FL 33041
Any Notice required by this Agreementto be given or made within a specified period
of time, or on or before a date certain, shall be deemed to have been duly given if
sent by certified mail, return receipt requested, postage and fees prepaid; hand
delivered; or sent by overnight delivery service.
SECTION 8. REGULATORY POWERS.
8.1 Nothing contained herein shall be construed as waiving either party's regulatory
approval or enforcement rights or obligations as it may relate to regulations of
general applicability, which may govern the Agreement.
8.2 Nothing herein shall be deemed to create an affirmative duty of either party to
abrogate its sovereign right to exercise its police powers and governmental powers
by approving or disapproving or taking any other action in accordance with
ordinances, rules and regulations, federal laws and regulations and state laws and
regulations.
SECTION 9. WAIVER OF ATTORNEYS' FEES AND RIGHT TO JURY TRIAL.
9.1 In the event of any litigation arising out of, in connection with, or relating to this
Agreement,the prevailing party is entitled to a reasonable attorney's fee and costs
subject to the limitations of Section 768.28 Florida Statutes.
9.2 In the event of any litigation arising out of, in connection with, or relating to this
Agreement, each party hereby knowingly, irrevocably, voluntarily and
intentionally waives its right to trial by jury.
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SECTION 10. GOVERNING LAW.
10.1 This Agreement shall be construed in accordance with and governed by the laws
of the State of Florida. Exclusive venue for any litigation or mediation arising out
of this Agreement shall be in the 161h Judicial Circuit in and for Monroe County,
Florida. This Agreement is not subject to arbitration.
SECTION 11. ACCESS TO RECORDS AND AUDITS.
11.1 The CITY shall comply with all public records and records retention requirements
mandated by Section 24, Article I, of the Florida Constitution, and Chapter 119,
Florida Statutes, and shall keep such records as are necessary to document the
performance of the Agreement and expenses as incurred, and give access to these
records at the request of COUNTY, the State of Florida, the Federal Government,
or authorized agents and representatives of said government bodies. CITY shall
also provide access to the personal property reports, permits, and equipment
purchased or utilized under this Agreement. It is the responsibility of CITY to
maintain appropriate records in accordance with generally accepted accounting
principles consistently applied to insure a proper accounting of all funds and
expenditures. Records shall be kept for a period of five (5) years following
execution of this Agreement. Each party, its officers, employees, agents and
auditors shall have access to the other parties' books, records, and documents,
related to this Agreement upon request. The access to and inspection of such
books,records, and documents by the parties shall occur during the regular office
hours as mutually agreed to by the parties. However, COUNTY warrants and
represents that it has full authority to fund the Project under the terms and
conditions specified herein. The COUNTY and CITY shall allow and permit
reasonable access to, and inspection of, all documents, papers, letters or other
materials in its possession or under its control subject to the provisions of Chapter
119, Florida Statutes, and made or received by the COUNTY and CITY in
conjunction with this Agreement; and the COUNTY shall have the right to
unilaterally cancel this Agreement upon violation of this provision by CITY.
11.2 The COUNTY may cancel this Agreement for refusal by the CITY, or the CITY's
subcontractor,to allow access by the County Administrator or his designee to any
Records pertaining to work performed under this Agreement that are subject to
the provisions of Chapter 119, Florida Statutes.
11.3 The term "public records" and "records" shall be the same as such term has been
defined in Chapter 119, Florida Statutes, including but not limited to any
documents,books, data(electronic or hard copy),papers and financial records that
result from the CITY or its subcontractors performance of the Services provided
in this Agreement.
11.4 If the inspection or audit discloses that COUNTY funds paid to the CITY under this
Agreement were used for a purpose not authorized by this Agreement, then the
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CITY must refund the funds improperly spent with interest calculated pursuant to
Section 55.03, Florida Statutes,with interest running from the date the COUNTY
paid the improperly spent funds to the CITY. This paragraph will survive the
termination of this Agreement.
11.5 The COUNTY and CITY shall allow and permit reasonable access to, and
inspection of, all documents, records, papers, letters, or other "public record"
materials in its possession or under its control subject to the provisions of Chapter
119, Florida Statutes, and made or received by the COUNTY and CITY in
conjunction with and in connection with this Agreement and related to Agreement
performance. The COUNTY shall have the right to unilaterally cancel this
Agreement upon violation of this provision by the CITY. Failure of the CITY to
abide by the terms of this provision shall be deemed a material breach of this
Agreement and the COUNTY may enforce the terms of this provision in the form
of a court proceeding and shall, as a prevailing party,be entitled to reimbursement
of all attorney's fees and costs associated with that proceeding. This provision
shall survive any termination or expiration of the Agreement.
11.6 The CITY is encouraged to consult with its advisors about Florida Public Records
Law in order to comply with this provision. Pursuant to F.S. 119.0701 and the
terms and conditions of this Agreement,the CITY is required to:
(1) Keep and maintain public records that would be required by the COUNTY to
perform the service.
(2) Upon receipt from the COUNTY's custodian of records, provide the
COUNTY with a copy of the requested records or allow the records to be
inspected or copied within a reasonable time at a cost that does not exceed the
cost provided in this chapter or as otherwise provided by law.
(3) Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as authorized
by law for the duration of the Agreement term and following completion of
the Agreement if the CITY does not transfer the records to the COUNTY.
(4) Upon completion of the Agreement, transfer, at no cost, to the COUNTY all
public records in possession of the CITY or keep and maintain public records
that would be required by the COUNTY to perform the service. If the CITY
transfers all public records to the COUNTY upon completion of the
Agreement, the CITY shall destroy any duplicate public records that are
exempt or confidential and exempt from public records disclosure
requirements. If the CITY keeps and maintains public records upon
completion of the Agreement,the CITY shall meet all applicable requirements
for retaining public records. All records stored electronically must be provided
to the COUNTY, upon request from the COUNTY's custodian of records, in
a format that is compatible with the information technology systems of the
COUNTY.
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(5) A request to inspect or copy public records relating to a COUNTY Agreement
must be made directly to the COUNTY,but if the COUNTY does not possess
the requested records,the COUNTY shall immediately notify the CITY of the
request, and the CITY must provide the records to the COUNTY or allow the
records to be inspected or copied within a reasonable time.
If the CITY does not comply with the COUNTY's request for records, the
COUNTY shall enforce the public records Agreement provisions in accordance
with the Agreement, notwithstanding the COUNTY's option and right to
unilaterally cancel this Agreement upon violation of this provision by the CITY. A
CITY who fails to provide the public records to the COUNTY or pursuant to a
valid public records request within a reasonable time may be subject to penalties
under Chapter 119, Florida Statutes.
The CITY shall not transfer custody, release, alter, destroy or otherwise dispose
of any public records unless or otherwise provided in this provision or as otherwise
provided by law.
IF THE CITY HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES,
TO THE CITY'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS AGREEMENT, CONTACT THE
CUSTODIAN OF PUBLIC RECORDS, BRIAN BRADLEY AT
PHONE# 305-292-3470 BRADLEY-
BRIANkMONROECOUNTY-FL.GOV, MONROE COUNTY
ATTORNEY'S OFFICE 1111 12TH Street, SUITE 408, KEY
WEST, FL 33040.
SECTION 12. NON-ASSIGNABILITY.
12.1 This Agreement shall not be assignable by either parry unless such assignment is
first approved by both parties.
SECTION 13. NO THIRD-PARTY RIGHTS/NO THIRD-PARTY BENEFICIARIES.
13.1 Nothing contained herein shall create any relationship, contractual or otherwise,
with or any rights in favor of, any third parry. No person or entity shall be entitled
to rely upon the terms, or any of them, of this Agreement to enforce or attempt to
enforce any third-parry claim or entitlement to or benefit of any service or program
contemplated hereunder, and the CITY and the COUNTY agree that neither the
CITY nor the COUNTY or any agent, officer, or employee of either shall have the
authority to inform, counsel, orotherwise indicate that any particular individual or
group of individuals, entity or entities, have entitlements or benefits under this
Agreement separate and apart,inferior to, or superior to the community in general
or for the purposes contemplated in this Agreement.
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SECTION 14. NON-WAIVER OF IMMUNITY.
14.1 Notwithstanding the provisions of Section 768.28, Florida Statutes, the
participation of the CITY and the COUNTY in this Agreement and the acquisition
of any commercial liability insurance coverage, self-insurance coverage, or local
government liability insurance pool coverage shall not be deemed a waiver of
immunity to the extent of liability coverage,nor shall any contract entered into by
the CITY or COUNTY be required to contain any provision for waiver.
SECTION 15. PRIVILEGES AND IMMUNITIES.
15.1 All of the privileges and immunities from liability, exemptions from laws,
ordinances, and rules and pensions and relief, disability, workers' compensation,
and other benefits which apply to the activity of officers, agents, or employees of
any public agents or employees of the COUNTY, when performing their
respective functions under this Agreement within the territorial limits of the
COUNTY shall apply to the same degree and extent to the performance of such
functions and duties of such officers, agents,volunteers, or employees outside the
territorial limits of the COUNTY.
SECTION 16. INDEPENDENT CONTRACTOR.
16.1 The CITY and its employees,volunteers, agents,vendors and subcontractors shall
be and remain independent contractor and not agents or employees of the
COUNTY with respect to all of the acts and services performed by and under the
terms of this Agreement. This Agreement shall not in any way be construed to
create a partnership, association or any other kind of joint undertaking, enterprise
or venture between the parties.
SECTION 17. SEVERABILITY.
17.1 If any term, covenant, condition or provision of this Agreement(or the application
thereof to any circumstance or person) shall be declared invalid or unenforceable
to any extent by a court of competent jurisdiction,the remaining terms, covenants,
conditions and provisions of this Agreement, shall not be affected thereby; and
each remaining term, covenant, condition and provision of this Agreement shall
be valid and shall be enforceable to the fullest extent permitted by law unless the
enforcement of the remaining terms, covenants, conditions and provisions of this
Agreement would prevent the accomplishment of the original intent of this
Agreement. The COUNTY and CITY agree to reform the Agreement to replace
any stricken provision with a valid provision that comes as close as possible to the
intent of the stricken provision.
SECTION 18. SURVIVAL OF PROVISIONS.
18.1 Any terms or conditions of either this Agreement that require acts beyond the date
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of the term of the Agreement, shall survive termination of the Agreement, shall
remain in full force and effect unless and until the terms or conditions are
completed and shall be fully enforceable by either parry.
SECTION 19. WAIVER.
19.1 The failure of either party to this Agreement to object to or to take affirmative
action with respect to any conduct of the other which is in violation of the terms
of this Agreement shall not be construed as a waiver of the violation or breach, or
of any future violation, breach or wrongful conduct.
SECTION 20. AUTHORITY.
20.1 Each parry represents and warrants to the other that the execution, delivery and
performance of this Agreement have been duly authorized by all necessary County
and corporate action, as required by law.
SECTION 21. SECTION HEADINGS.
21.1 Section headings have been inserted in this Agreement as a matter of convenience
of reference only, and it is agreed that such section headings are not a part of this
Agreement and will not be used in the interpretation of any provision of this
Agreement.
SECTION 22. EXECUTION IN COUNTERPARTS.
22.1 This Agreement may be executed in any number of counterparts, each of which
shall be regarded as an original,all of which taken together shall constitute one and
the same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart.
SECTION 23. ENTIRE AGREEMENT/MODIFICATION/AMENDMENT.
23.1 This writing contains the entire Agreement of the parties and supersedes any prior
oral or written representations. No representations were made or relied upon by
either parry, other than those that are expressly set forth herein.
23.2 No agent, employee, or other representative of either parry is empowered to
modify or amend the terms of this Agreement, unless executed with the same
formality as the parties' preceding duly-executed Agreement.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement as indicated
below.
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BOARD OF COUNTY
COMMISSIONERS OF MONROE
COUNTY, FLORIDA
By:
Mayor Holly Merrill Raschein
(SEAL)
ATTEST: Kevin Madok, Clerk APPROVED AS TO FORM
AND LEGAL SUFFICIENCY
BY:
cNnO ArrOnNEY
APPIROV�,Dl%TO FORM
BY: ,w, _..._ .....
As Deputy Clerk �� �-
lOr
PE ISIS
ASSISTANT UNTY ATTORNEY
.� . Date: 8/27/24
Assistant Monroe County Attorney
CITY OF KEY WEST, FLORIDA
Mayor
Date:
APPROVED AS TO FORM AND
(SEAL) LEGALITY FOR THE USE AND
RELIANCE OF CITY OF KEY WEST,
ATTEST: Keri O'Brien, City Clerk FLORIDA ONLY:
BY:
Clerk
BY:
Printed Name:
BY:
Printed Name:
11 of 11
2 �
3
5 ,
6 -_
7 MONROE COUNTY,FLORIDA
8 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
9 RESOLUTION NO. 038 -2022
10
11 A RESOLUTION OF THE MONROE COUNTY BOARD OF COUNTY
12 COMMISSIONERS SUPPORTING ENACTMENT AND APPROVAL OF
13 HOUSE BILL 1065 / SENATE BILL 1432 ("ANCHORING BILL") TO
14 FACILITATE A REDUCTION IN THE NUMBER OF DERELICT
15 VESSELS IN THE WATERS OF THE FLORIDA KEYS AND DIRECTING
16 THE MONROE COUNTY MARINE RESOURCES OFFICE TO PURSUE
17 NECESSARY STEPS TO IMPLEMENT NEW MOORINGS AS REQUIRED
18 BY LAW AND TO PARTNER WITH THE CITY OF KEY WEST IN THE
19 EFFORT TO ACHIEVE IMPLEMENTATION OF ADDITIONAL
20 MOORINGS AND ASSOCIATED LOCAL MANAGEMENT.
21
22 WHEREAS,the Board of County Commissioners of Monroe County,Florida (hereinafter
23 `BOCC", "Board", or"Monroe County") is the governing body of Monroe County, Florida; and
24
25 WHEREAS, the State of Florida has designated unincorporated Monroe County and the
26 City of Key West("City") as Areas of Critical State Concern; and
27
28 WHEREAS, the waters surrounding the Florida Keys are situated within the boundaries
29 of the Florida Keys National Marine Sanctuary and have, since July 26, 2001, been designated a
30 federal No Discharge Zone by the United States Environmental Protection Agency pursuant to
31 Title 40, Chapter I, Subchapter D, Part 140, Section 140.4(b)(1)(ii), as may be amended from time
32 to time; and
33
34 WHEREAS, the wise stewardship of our natural resources involves the protection of the
35 marine environment for generations to come; and
. 36
37 WHEREAS, Monroe County has the highest number of derelict vessels in the state,
38 creating significant navigational safety issues, environmental impacts, and unnecessary financial
39 burdens for the residents of and visitors to the Florida Keys; and
40
41 WHEREAS, in 2021, the Florida Legislature enacted Senate Bill 1086,presently codified
42 at Florida Statute Section 327.4108(3)(a), which provides for a 90-day time limit for vessels
43 anchored in waters of the Florida Keys so as to address long-term anchoring issues including but
44 not limited to neglect, storage and abandonment of vessels, which frequently lead(s) to vessels
45 becoming derelict; and
46
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47 WHEREAS,Florida Statute Section 327.4108(3)(c)currently requires that 250 new public
48 mooring balls be placed within one(1)mile of the Key West Bight City Dock and for 50 additional
49 moorings to be placed within the existing Key West Garrison Bight Mooring Field before a new
50 such limit may be utilized and/or applied; and
51
52 WHEREAS, 300 new moorings are not appropriate in these locations due to insufficient
53 physical space and significant regulatory hurdles including but not limited to state and federal
54 permitting requirements, likely resulting in the inability to implement the above-referenced 90-
55 day anchoring time limit; and
56
57 WHEREAS, the City recently prohibited stored vessels from mooring in the Garrison
58 Bight Mooring Field,which will open up at least 30 existing moorings to local live-aboard vessels;
59 and
60
61 WHEREAS, in the 2022 session of the Florida Legislature, two bills, House Bill
62 1065/Senate Bill 1432, have been filed which propose lowering the number of required new
63 moorings to at least 100 in order to ensure the successful implementation of this 90-day anchoring
64 time limit; and
65
66 WHEREAS, the "2002 Keys-Wide Mooring Field System Preliminary Planning
67 Document",prepared by the professional staff of the Monroe County Planning and Environmental
68 Resources Department's Marine Resources Office, determined that the Wisteria Island/Fleming
69 Key anchorages in the vicinity of Key West Bight City Dock were the most problematic large
70 anchorages in dire need of management in the Florida Keys; and
71
72 WHEREAS, installation of a managed mooring field will reduce the number of derelict
73 vessels in the Florida Keys, ensure compliance with the federal Clean Vessel Act, minimize
74 benthic damage, and provide a safe and secure harbor for our local long-term live-aboard
75 community; and
76
77 WHEREAS, the BOCC desires to expeditiously move toward implementation of new
78 moorings within one (1) mile of the Key West Bight City Dock, and directs the professional staff
79 of the Planning and Environmental Resources Department's Marine Resources Office to begin the
80 necessary steps toward achieving such implementation, including professional evaluation of
81 mooring potential in the area by conducting a feasibility study including but not limited to benthic
82 resource surveys, water depth surveys, and regulatory guidance for the Board's further
83 consideration and input on subsequent steps toward implementation; and
84
85 WHEREAS, Monroe County desires to partner with the City of Key West in the effort to
86 achieve implementation of additional moorings and associated management in this location;
87
88 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
89 COMMISSIONERS OF MONROE COUNTY, FLORIDA,THAT:
90
2 of 3
91 Section 1. Recitals and Legislative Intent. The foregoing recitals and statements of
92 legislative intent are true and correct and are hereby incorporated as if fully
93 stated herein.
94
95 Section 2. The BOCC strongly encourages legislative efforts to effectively and
96 expeditiously reduce the number of derelict vessels and their associated
97 impacts on our community.
98
99 Section 3. The BOCC supports the goals of HB 1065/SB 1432 through the installation
100 of at least 100 moorings within one (1) mile of the Key West Bight City
101 Dock as an appropriate strategy to address the management needs in this
102 area.
103
104 Section 4. The BOCC directs the professional staff of the Planning and Environmental
105 Resources Department's Marine Resources Office to pursue the necessary
106 steps toward implementing the 100 new moorings required by law and to
107 partner with the City of Key West to accomplish this goal and associated
108 management in this location.
109
110 Section 5. The Clerk of Court for this Board shall furnish copies of this resolution to
III state representative James "Jim" Mooney, state senator Ana Maria
112 Rodriguez, and Florida Fish and Wildlife Conservation Commission
113 commissioner Robert A. Spottswood, as soon as reasonably possible.
114
115 Section 6. This Resolution shall take effect immediately upon adoption.
116
117 PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
118 Florida, at a regular meeting held on the 21"day of January, 2022.
119
120 Mayor David Rice Yes
121 Mayor Pro Tem Craig Cates Yes
122M .� Commissioner Michelle Coldiron Yes
12E; d County Commissioner District Three VACANT
12 ?i Commissioner Holly Merrill Raschein Yes
1251:�
12Cr BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY,
127— i D,=s,-= FLORIDA
/Ow12R .1 By:
A
130— Mayor David Rice
131 (SEAL)
132 Attest: KEVIN MADOK, CLERK
I Digitally signed by Robert B.Shillinger
133 ,i DN:cn=Robert B.Shillinger,o=Monroe County
�,,,i,,,�,Q� Robert B. Shillinger,$D«ou=Monroe County Attorney,
134 Jt -email=shillinger-bob@monroecounty-fl.gov,c=US
135 20 Date: 22.01.31 12.41:24.OS-00-
136 AS DEPUTY CLERK Approved as to form and legal sufficiency
Robert B. Shillinger, County Attorney
3 of 3
�I GOUgr4
0p2 °e�Q Kevin Madok, cPA
O p
.E
Oi ..
.. Clerk of the Circuit Court&Comptroller—Monroe County, Florida
ROE C01�
February 1, 2022
Honorable Representative Jim Mooney
1102 The Capitol
402 S Monroe Street
Tallahassee FL 32399-1300
Honorable Representative Mooney,
AUaclied is a copy of'Resolution No. 037-2022 supporting the designation of the Cow Key
Channel Bridge on U.S.1/S.R. 5 in Monroe County, Florida as die "Cheiyl H. Cales Mcmolial
B.tidge"and requesting the Florida Department of•Transportation erect the appropriate signage
reflecting die designation.
Also attached is a copy of Resolution No. 038-2022 supporting enactment and approval of
House Bill 1065/Senate Bill 1432 ("Anchoring Bill") to facilitate a reduction in die number of
derelict vessels in the waters of the Florida Keys and directing die Monroe County Marine
Resources Office to pursue necessary steps to implement new moorings as required by law and to
partner with die City of Key West in die effort to achieve implementation of additional moorings
and associated local management.
These Resolutions were adopted by the Monroe County Board of County Commissioners
at a regular meeting,held in formal session, on January 21, 2022. Should you have any
questions please feel free to contact me at(305) 292-3550.
Respectfully Submitted,
Kevin Madok, CPA, Clerk of
the Circuit Court& Comptroller&
ex-officio to the Monroe County
Board of County Commissioners
by:Pamela G. Hancock, D.C.
cc: File
KEY WEST MARATHON PLANTATION KEY PK/ROTH BUILDING
500 Whitehead Street 3117 Overseas Highway 88820 Overseas Highway 50 High Point Road
Key West,Florida 33040 Marathon,Florida 33050 Plantation Key,Florida 33070 Plantation Key,Florida 33070
305-294-4641 305-289-6027 305-852-7145 305-852-7145
opt cougre -
4�`5°°�� Kevin Madok, CPA
�: _
��ROEco;,�` Clerk of the Circuit Court&Comptroller Monroe County, Florida
February 1, 2022
Honorable Senator Ana Maria Rodriguez
318 Senate Building
404 S Monroe Street
Tallahassee FL 32399-1100
Honorable Senator Rodriguez,
Attached is a copy of Resolution No. 037-2022 supporting die designation of'the Cow Key
Channel Bridge on U.S.1/S.R. 5 in Monroe County, Florida as the "Chciyl H. Cates Memorial
Bridge"and requesting the Florida Department of Transportation erect die appropriate signage
reflecting die designation.
Also attached is a copy of Resolution No. 038-2022 supporting enactment and approval of
House Bill 1065/Senate Bill 1432 ("Anchoring Bill") to facilitate a reduction in the number of
derelict vessels in the waters of die Florida Keys and directing the Monroe County Marine
Resources Office to pursue necessary steps to implement new moorings as required by law and to
partner with the City of Key West in the effort to achieve implementation of additional moorings
and associated local management.
These Resolutions were adopted by the Monroe County Board of County Commissioners
at a regular meeting,held in formal session, on January 21, 2022. Should you have any
questions please feel free to contact me at(305) 292-3550.
Respectfully Submitted,
Kevin Madok, CPA, Clerk of
the Circuit Court& Comptroller&
ex-officio to the Monroe County
Board of County Commissioners
by:Pamela G. Hancock, D.C.
cc: File
KEY WEST MARATHON PLANTATION KEY PK/ROTH BUILDING
500 Whitehead Street 3117 Overseas Highway 88820 Overseas Highway 50 High Point Road
Key West,Florida 33040 Marathon,Florida 33050 Plantation Key,Florida 33070 Plantation Key,Florida 38070
3057294-4641 305-289-6027 305-852-7145 305-852-7145
Gpt�COURT
o Q'�Q u cuio�F:�yq� Kevin Madok, cPA
0
.. Clerk of the Circuit Court&Comptroller—Monroe County, Florida.
o ..
~ROE COUN`
February 1, 2022
Chairman Robert A. Spottswood
Florida Fish and Wildlife Conservation Commission
620 Soutli Meridian Street
Tallahassee, FL 32399-1600
Dear Mr. Spottswood,
Attaclied is a copy of Resolution No. 038-2022 supporting enactment and approval of
House Bill 1065/Senate Bill 1432 ("Anchoring Bill") to facilitate a reduction in die number of
derelict vessels in the waters of the Florida Keys and directing die Monroe County Marine
Resources Office to pursue necessary steps to implement new moorings as required by law and to
partner wide die City of Key West in die effort to achieve implementation of additional moorings
and associated local management.
This Resolution was adopted by die Monroe County Board of County Commissioners at a
regular meeting, held in formal session, on January 21, 2022. Should you have any questions
please feel free to contact me at(305) 292-3550.
Respectfully Submitted,
Kevin Madok, CPA, Clerk of die
Circuit Court and ex-oflicio to the
Monroe County Board of County
Commissioners
By. Pamela G. Hancock, D.C.
cc: File
KEY WEST MARATHON PLANTATION KEY PK/ROTH BUILDING
500 Whitehead Street 3117 Overseas Highway 88820 Overseas Highway 50 High Point Road
Key West,Florida 33040 Marathon,Florida 33050 Plantation Key,Florida 33070 Plantation Key,Florida 33070
305-294-4641 305-289-6027 305-852-7145 305-852-7145
Case 4,18-cv-10203-JEM Document 155 Entered on FLU D Docket 05/30/2024 Page I of 26
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA
KEY WEST DIVISION
CASE NO. 18-10203-CIV-MARTINEZ
UNITED STATES OF AMERICA,
Plaintiff,
vs.
REB. CORP.,
Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
THIS CAUSE came before this Court on the non jury trial held in this case from January
16,2024, to January 17,2024. During and after the bench trial,this Court reviewed the evidence
admitted and considered applicable law and arguments presented by counsel. After careful
consideration of the Parties' submissions, the following findings of fact and conclusions of law
are made pursuant to the requirements set forth in Federal Rule of Civil Procedure 52.
1. INTRODUCTION
In 2011,Plaintiff,the United States of America("United States") asserted ownership over
the Subject Property, Wisteria Island. In response, Defendant, F.E.B. Corp. ('FEB") sued under
the Quiet Title Act,28 U.S.C. §209 ,arguing that it owned the island pursuant to the Submerged
Lands Act ("SLA"), 43 U.S.C. §§ 1301-1315. F.E.B. Corp. v. United States, Case No. 12-cv-
10072-JEM, 2015 WL 3653162 (S.D. Fla. Mar. 25, 2015). The district court held that FEB.'s
action was time-barred and dismissed the case for lack of subject-matter jurisdiction. The district
court did not reach the merits of FEB's SLA claim in its quiet title action. On appeal, the 11 th
Circuit affirmed, F.EB, Corp. v. United States, 818 F.3d 681 (1 Ith Cir. 2016) ("FEB T'). The
Cass 4,,18-cv-10203-JEM Document 155 Entered on FLSDDocket 5/3 2 of 26
Court abstained from resolving the merits question: whether Wisteria Island was "filled in, built
up,or otherwise reclaimed by the United States for its own use."Id. at 693. Rather,the Court said,
"only that, given the undisputed and well-known facts of Wisteria Island's creation, the plain
language of the [Act's] exception for lands `built up by the United States for its own use,' gave
rise to an open and obvious question as to whether the [Act] applied in this case." Id. (citation
omitted). "The title dispute remains unresolved."Id. at 694 (citations omitted).
Thereafter, the United States brought this instant action on October 11, 2018, seeking a
declaratory judgment that the United States, not FEB, held title to the thirty-nine acres—twenty
acres above sea level and nineteen below—that made up Wisteria Island. This court entered
summary judgment for the United States. (ECF No. 67). The I Ith Circuit vacated this Court's
entry of summary judgment and remanded for trial because "there is a genuine dispute of fact
about whether the United States created Wisteria Island for its own use or whether Wisteria
Island's creation was an accident." United States v. F.E.B. Corp., 52 FAth 916, 931 (11 th Cir.
2022) ("FEB IT').
II. FINDINGS OF FACT
A. History of the Subject Property.
1. Plaintiff, the United States sued FEB, seeking declaratory judgment to resolve a
long-standing title dispute between the two parties over the Subject Property.
2. The "Subject Property" is 39 acres of land off the coast of Key West, Florida and
is legally described as:
Commencing at the Northwesterly end of Simonton Street at the intersection of the
Southwesterly right-of-way line of Simonton Street and the waters of the Bay of
Florida, run North 60' West for a distance of 2150 feet, more or less, to the point
of beginning of the property hereafter described. From said pint of beginning
continue North 60°West for 1000 feet,thence run North 30'East for a distance of
2
Case 4-,18-cv-10203-JEM Document 155 Entered on FLSD Docket 05130/2024 Page 3 of 26
1700 feet, thence run South 60' East for a distance of 1000 feet, thence run South
301 West for a distance of 1700 feet back to the point of beginning.
3. The Subject Property is located at the southern end of Frankford Bank, which is
referred to as both"Frankford Bank"and"Frankfort Bank"in historic records.
4. The United States' claim to the Subject Property dates to the early 1800s when
"[t]he United States received the land that became Florida—then known as 'La Florida... from
Spain in the 1818 Adams-Onis Treaty." United States v. FEB. Corp., 52 FAth 916, 919 (1 Ith
Cir. 2022) (FEB II) (citing Treaty of Amity, Settlement,and Limits, Between the United States of
America and His Catholic Majesty, Spain-U.S., Feb. 22, 1819, 8 Stat. 252).
B. The Navy's Repeated Reservation and Use of the Subject Property From 1845-
1908.
5. The Navy considered the Subject Property to be reserved for naval and military use
since as early as 1908.
6. On September 17, 1845, President Polk issued an Executive Order (Executive
Order 1845),which set aside and reserved from sale public lands described therein per the request
by the War Department.
7. The Subject Property is included in the area reserved under the Executive Order
issued on September 17, 1845.
8. On January 11, 1854, the United States reserved the "shoals" of Key West and
Flemings Key for"military purposes."The Subject Property was a shoal prior to being filled in.
9. By correspondence dated March 9, 1855, the United States notified the State of
Florida that "Flem[]ingo Key . . . and the shoals of Key West . . . were reserved for military
purposes"at the request of the Secretary of War,and that"Flem[]ing Key has been selected by the
Secretary of the Navy for a Naval Depot."
3
Case 4e -cv® 3- t 05/30/2024 Pageof 26
10. On March 26, 1908, Commandant William H. Beehler, on behalf of the Secretary
of the Navy, sent a letter explaining that the Navy was "under the impression that the locality of
`Frankford Bank' is a part of the Naval Reservation at Key West, being included in the title that
reserves Fleming Key, and its adjacent shoals, and Man-of-War Harbor for a Naval Depot," and
that Man-of-War Harbor, and "its adjacent shoals,"belong to the Navy.
11. By correspondence dated April 14, 1908, Commandant Beehler made a formal
request to the Secretary of the Navy,Victor H.Metcalf, asking for"cognizance and supervision of
the dredging of the material for the Army from `Frankford Bank' for filling at Fort Taylor,Fla., as
he understands that `Frankford Bank' is a part of the Naval Reservation."
12. In his letter, Commandant Beehler also stated that the Land Office's letter dated
March 9, 1855, showed that "the shoals [of Frankford Bank] . . . are reserved for Military and
Naval purposes.Fleming Key and its adjacent shoals,and Man-of-War Harbor are reserved for the
Naval Depot."
13. As of 1908,the Navy believed it had a"definite claim"to Frankford Bank.
14. Commandant Beehler sought supervisory authority over the Army's Fort Taylor
dredge project to protect the Navy's interests in Fleming Key, Frankford Bank, and the adjacent
shoals:
Frankford Bank forms the Western edge of Man-of-War Harbor and
channel, and its removal by dredgers may deprive that harbor of
shelter. Man-of-War-Harbor is also designated as "Hurricane
Harbor," because it is a smooth basin that affords perfect shelter
during storms.
[]The indiscriminate removal of Frankford Bank by contractors will
be likely to seriously impair the value of Man-of-War Harbor and
Fleming Key as a torpedo depot.
15. The April 14, 1908 correspondence also establishes that "the Department had
contemplated erecting a coal shed on Frankford Bank, for the Navy."
4
Case 4:18-cv-10203-JEM Document 155 Entered on FLSD Docket 05130/2024 Page 5 of 26
C. The Navy Expresses its Intent to Fill in and Use the Subject Property.
16. A letter from Commander Warren Terhune, Beehler's successor at Naval Station
Key West, dated October 9, 1916, and included in House Documents, vol. 32, part 4, report no. 6
of Commission on Navy Yards and Naval Stations,Report of Navy Yard Commission(U.S.Naval
Station, Key West, Florida, 1918), explains"fflhe advantages of Key West arise from its strategic
location at the southern most continental limits to the Nation . . . the ownership by the United
States (Navy Department) of an existing plant, with Fleming [Key], Fr ford Bank, and other
partially submerged [keys] and shoals capable of development; and the existence of fortifications
which should be improved."
17. To that end, Commandant Terhune submitted a "[p]lan of station as of July 1,
1916,"which included "[b]lue prints [that] show possibilities at Fleming [Key], Fr ford Bank,
etc."
18. Commandant Terhune added: "The erection of a breakwater to afford a harbor of
refuge at the naval station would be justified and would be a wise expenditure in insuring against
hurricanes, at the same time affording wharfage for many small vessels."
19. it regard to the reclaiming of land by filling, for the purpose of erecting a
magazine on Fr ford Bank"the Commandant added he "is most strongly convinced that these
acquisitions, fronting on deep water,will be worth the money".
20. Finally, Commandant Terhune made clear that "[flhe Navy Department owns
Fleming [Key and] Frankford Bank,"and they both"should be enlarged by fill and utilized".
21. These correspondences establish that the Navy used and intended to use the Subject
Property in two ways—as a protective feature and for development for future opera Lions—,,-and,
therefore,the Subject Property was filled in for the Navy's use.
5
Case 4:18-cv-10203-JEM Document 155 Enteredon FLSD Docket 05/30/2024 Page 6 of 2
22. A 1917 correspondence from J.M. Helm, Rear Admiral of the United States Navy,
establishes the following: "To obtain a station development [in Key West]the station authority are
agreed that it will be necessary to fill in over present shoal waters at Frankford Bank or Fleming
Key, or both. All are agreed that a plan similar to K-1, Appendix G-2, would afford the best
development, the only objection being that it is the most expensive. It is suggested that the
breakwaters shown by this plan are unnecessary and that if any protection is required from this
direction it can be obtained by a slight filling in on Frankford Bank and the planting of mangroves
in the fill to insure permanency."
23. Rear Admiral Helm's correspondence establishes that the Navy used Frankford
Bank, and more specifically the Subject Property, as a natural breakwater or protective feature.
24. Shortly after authoring the October 9, 1916 letter referenced above, Commander
Terhune signed a blueprint, titled "Proposed Development for Submarine Base, U.S. Naval
Station, Key West"depicting the Subject Property and dated May 11, 1917.
25. The 1917 Blueprint includes the following note: "Development unanimously
favored by Naval Station Officers . . . adding thereto Magazine Site on Fleming Key and secure
and safe wharfage on Frankford Bank,with ideal aviation site,and unlimited room for a dry-dock
and other naval expansion."
26. Labeled "Enclosure F," the 1917 Blueprint clearly shows the delineation of this
"secure and safe wharfage"on the Subject Property at the southern end of Frankford Bank. Above
the delineated wharfage and in the same script as"Enclosure F,"a label denotes"Frankford Bank."
27. In a February 25, 1918 letter from the House of Representatives Committee on
Education to the Secretary of War, the author, W. J. Sears, advocates for the then contemplated
Key West Harbor improvement project on behalf of the Navy and states: "From conversations 1
6
Case 4-18-cv-10203-JEM Document 155 Entered on FLU D Docket 05/3012024 Page 7 of 26
have had with military naval men, I believe I can safely say without fear of contradiction there is
no more important harbor in the United States from a strategic standpoint than Key West."
28. On March 25, 1918,then U.S. Senator Duncan U.Fletcher,sent a letter to the Army
Corps of Engineers, regarding the contemplated improvement of Key West Harbor and arguing
that"this improvement ought to be regarded as a war emergency matter" and "this improvement
should be made now."
29. In an April 12, 1918, letter from the Commandant Naval Station Key West to the
Superintendent, U.S. Engineer Office, the Navy made clear that"an increase in the width of[Key
West] harbor,particularly in the space immediately abreast the Naval Station, is considered to be
a military necessity"and "recommended that the harbor immediately abreast of the Naval Station
wharves be dredged to a depth of thirty feet at mean low water."
D. The United States Fills in the Subject Property for the Navy's Use During a
Project Conducted In Key West Harbor in the Early 1920s.
30. Coast and Geodetic Survey (C&GS) charts of the area(Chart No. 584) from 1919
and 1923 establish that the Subject Property had water depths of 3 to 12 feet at that time.
31. "[D]uring a hurricane in 1919, a 150-foot ship called the Wisteria sank near the
shallow ocean floor [or shoal] upon which Wisteria Island was later built. In recognition of that
event,the island that the United States created in that area was called Wisteria Island." FEB H, 52
FAth at 920.
32. The Wisteria ran aground on the Subject Property due to a navigational hazard or
shoal.
33. "[I]n the early 1920s,the United States 'dredged'---or removed soil from the ocean
floor - -in Key West Harbor,piling the dredged oceanic soil (also called 'spoils' or 'spoilage')up
until it became an island." FEB A 52 F.4th at 920.
7
Case 4:18-cv-10203-JEM Document 155 Entered on FLSD Docket 05/30/2024 Page 8 of 26
34. Army Corps of Engineers conducted the dredge and fill project.
35. Before the project began, "[t]he northwest entrance [of Key West Harbor] was
obstructed by a sand shoal, over which the controlling depth was 10.5 feet at mean low water."
36. According to the Army Corps' Annual Report of the Chief of Engineers, Report
Upon the Improvement of Rivers and Harbors in the Jacksonville, Fla., District, the scope of the
1920s dredge and fill project was as follows:
This provides for the removal of coral heads and reefs from the main
ship channel and anchorage, so as to give a clear depth of 30 feet at
mean low water and a width in the channel of 300 feet; and for a
northwest entrance channel with depth of 17 feet at mean low water
and of sufficient width for navigation, to be obtained by the
construction of a stone jetty on each side of the entrance and by
dredging;removing the middle ground to the extent of widening the
channel opposite the wharves to a width of 800 feet and a depth of
26 feet at mean low water.
37. The Army Corps' Reports explicitly found that the improvements "are of great
value to the smaller vessels of the United States Navy, enabling them to reach the naval station at
Key West without difficulty or danger."
38. In 1923, during the Key West dredge project, spoil was placed on the Subject
Property.
39. The project was completed by December 15, 1923.
40. Spoil was deliberately placed on the Subject Property, given the utilitarian,
protective, and strategic location of the Subject Property on the shoals of Frankford Bank.
41. The Subject Property offered a shallow base for piling up dredged material, and it
was close to the dredging operations that maintain the main ship channel,which made the Subject
Property (at the southern end of Frankford Bank) a practical location for the deposit of spoil.
Case 4:18-cv-10203-JEM Document155 Entered on FLSD Docket 05/30/2024 Page 0 of 26
42. On April 25, 1924, the Department of Commerce Lighthouse Service sent
a letter notifying C&GS of the appearance of the"spoil bank"on the Subject Property.
3. The letter includes a map with "spoil bank" written in, pointing to the crescent-
shaped island on the Subject Property.
4 . On the map, another note "southerly crescent 15' high" appears to the west of the
island, and "North end 3 feet high" is written above the island.
4 . The intentional placement of spoil on the Subject Property for the Navy's use in
123 created the "spoil bank" island, which had over 2 acres of land above the mean low water
line.
FloridaE. tt s to Sell the Island Created forte a 's Use on the Subject
Property; the Navy Objects; and, in response to Florida's Attempted Sale of
the Island, the President Executes a NewExecutive Order Reserving the
Subject Property forte 's Use.
46. "After the [1920s] dredging was complete, two men applied to buy the island for
00." FEBII, 52 F.4th at 920.
47. "The Florida Trustees of Internal Improvement Fund [( II )] published a notice
that it intended to sell the island." I .
48. On or about April 5, 1924, TIIF published the following Notice:
NOTICE is hereby given that the Trustees of the Internal
Improvement Fund of the State of Florida,will hold a meeting at 11
o'clock A. M., Tuesday, May 20th, 1924, for the purpose of
considering the sale of a submerged tract of land in Monroe County,
described as follows,to-wit:
An island in the vicinity of Key West Island, caused by the deposit
of excavated material from the Ship Channel.
The deposit lies 1800 feet,more or less,in a Northwesterly direction
from the Porter Docks, which are at the end of Fitzpatrick Street,
City of Key West. It extends 400 feet, more or less, in
Northeasterly direction, 300 feet, more or less, in a Northwesterly
direction, and contains approximately 2.8 acres. All in Section 6,
Township 68 South, Range 25 East.
9
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Exact description to be furnished with deed.
49. The island TIIF noticed for sale in 1924 is located within the Subject Property.
50. After Notice was published in the Key West Citizen, "the Navy Department
objected that the island belonged to the United States and therefore was not Florida's to sell." FEB
11, 52 F.4th at 921.
51. Specifically, by letter dated May 8, 1924,the Judge Advocate General of the Navy
sent a letter to TIIF objecting to the sale and asserting title in the United States.
52. In response to the Navy's objection, TIIF "withdrew the notice and rejected the
application." FEB 11, 52 FAth at 201.
53. Thereafter, and in response to Florida's attempt to sell the island on the Subject
Property in 1924, the Navy took immediate action to expressly reserve the Subject Property for
naval and military use.
54. By letter dated May 17, 1924, the Chief of the Bureau of Yards and Docks sent a
letter to the Chief of Naval Operations seeking"Reservation of Keys,Harbor,and Shoals adjacent
to and in the vicinity of the Island of Key West, Florida, for Naval and Military purposes."
55. In the May 17, 1924 letter,the Navy explained that"the island the state of Florida
proposes to sell" is part of Frankford Bank; in the Navy's "development of the harbor, Frankford
Bank formed the principal protection from wave action from the westward";and the Navy,through
the Navy Yard Commission, "contemplated the enlarging of Frankford Bank by depositing the
dredged material from the harbor along the edge of the bank," which constitutes the Subject
Property.
56. In a letter dated May 24, 1924, from the Chief of Naval Operations to the Judge
Advocate General, the Chief of Naval Operations advocates for the express reservation of
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"Frankford Bank and the artificial island thereon for possible naval use" because Frankford Bank
forms a breakwater used by the Navy to protect nearby naval operations and future expansion of
those operations.
57. In July of 1924,the Secretary of the Navy, Curtis D. Wilbur,wrote to the Secretary
of the Interior regarding "a proposed draft of an executive order reserving for naval purposes
certain islands, keys, harbors and shoals adjacent to and in the vicinity of the Island of Key West,
Florida."
58. On August 9, 1924, Secretary Wilbur sent President Calvin Coolidge a formal
request for entry of an executive order reserving the Subject Property for Navy use.
59. In this letter, the Secretary of the Navy expressly stated that "[tlhe Navy
Department has for over thirty years held undisputed possession of Fleming Key and the adjacent
shoals including Frankford Bank . . . together with all of the islands and shoals to the westward of
Key West to and including the Marquesas."
60. The Secretary of the Navy also stressed that these islands and shoals should not be
allowed to come under private ownership because of their strategic location: "If privately owned
and developed, this location might become a constant expense on account of claims by private
parties for damages incidental to gun fire."
61. The Secretary further explained: "If in the future Key West defenses are to be
modernized,these areas would be of great value in connection with outer defense works."
62. The Secretary expressly requested the reservation of the islands and shoals"in view
of their strategic location for naval purposes."
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63. "Indicative of the request's urgency, two days later on August 11, 1924, President
Coolidge issued Executive Order 4060 that reiterated the reservation, for naval purposes, of this
area of Key West's waters that included the spoil island Wisteria."
64. Executive Order 4060 reserves "all the islands, keys, harbors and shoals adjacent
to and in the vicinity of the Island of Key West, Florida" "for use of the Navy Department for
naval purposes."
65. The Subject Property is included in the geographic area covered by Executive Order
4060: the coverage area extends southward in a peninsula specifically to include the southern end
of Frankford Bank where the Subject Property is located.
F. The Navy Used the Subject Property for Repeated Deposits of Spoil and for
Additional Purposes.
66. A 1927 blueprint created by the U.S. Naval Station, Key West depicts a kidney
shaped island on the Subject Property with an elevated southern crest. A note on the 1927 blueprint
identifies that the above sea level land area was almost three acres: "Approx. Acreage of Land
above ordinary high tide: 2.95 A."
67. The 1927 blueprint illustrates that the majority of the land is three feet above mean
low water (MLW), with text notes about the formation of the island from dredge spoil material:
"Filled by hydraulic dredge, El. Roughly 3' above MLW."
68. The shape of the island in the 1927 blueprint establishes that the Navy planned to
continue using this island for deposit of spoil and developing it for proposed plans as a building
site. Spoil islands are typically built from the outside inward. Initial deposits create an external
ring and subsequent spoil deposits are placed in the center.
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69. The island depicted on the 1927 blueprint is the same island that the United States
filled in for the Navy's use; the Lighthouse Service identified as a "spoil bank" in the April 23,
1924, letter; and TIIF intended to sell in 1924.
70. As an example of the Navy exercising control and ownership over the Subject
Property after it was filled in,the United States,by and through the Secretary of the Navy,entered
into a Revocable License with Lowe Fish Company on August 17, 1928, for use of the "exposed
spoil bank" (i.e., the Subject Property), "for the purpose of carrying on certain processes of
preparation of hides in connection with the shark fishing industry."
G. The United States Fills in and Builds up the Subject Property Again in the
1940s for the Navy's Use.
71. "[A],fter World War Il broke out,the United States began a huge dredging contract
to provide adequate seaplane landing and take-off areas, moving some 5.4 million cubic yards of
spoils over two years. The project also deepened the submarine basin to twenty-two feet and the
main ship channel to thirty feet." FEB H, 52 F.4th at 921 (internal quotations marks omitted).
72. "During that period,the United States again dumped the dredge spoils where it had
in the 1920s.As a result,Wisteria Island expanded to its current size,about twenty-one acres above
water and eighteen below, for a total of thirty-nine acres." Id. at 921.
73. In October of 1942, the Army Corps of Engineers conducted a pre-dredge survey
of the Subject Property for the channel and turn basin project.
74. By that time,much of the other dredge work(i.e.,seaplane landing and take off and
submarine basin) was complete and spoil locations already filled in.
75. The 1943 channel and turn basin project had specific areas designated for spoil
placement.
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76. The Subject Property was specifically designated as, and intentionally used as,
"spoil area B" during the 1943 channel and turn basin project.
77. At the commencement of the 1943 channel and turn basin project, spoil area B
included the spoil island created during the 1920s Key West Harbor project.
78. During the 1943 channel and turn basin project additional spoil was placed on top
of the spoil placed on the Subject Property during the 1920s Key West Harbor project.
79. By June of 1943,at the completion of the 1943 channel and turn basin project,there
were almost 25 acres of land above the mean low water line on the Subject Property.
80. The 1943 channel and turn basin project was conducted for the Navy and with Navy
funds.
81. In July 1943, after the completion of the 1943 channel and turn basin project, the
Army Corps conducted a survey of the Subject Property. The last page of the post-dredge survey
clearly shows the increased land mass on the Subject Property.
82. A comparison of the pre and post dredge surveys establishes that all of the Subject
Property had fill placed upon it.
83. For example, the pre-dredge survey shows water depths of 7.3-8 feet on the
northwest border, with depths of 7.3 feet at the intersection of the"E 230000" line and"N86000"
line, while the post-dredge survey shows depths of 4.1-7.7 feet on the northwest border, with
depths of half a foot above water to 6 feet below water at the intersection of the "E 230000" line
and"N86000"line.
84. A comparison of the 1941 and 1943 nautical charts clearly shows the expanded land
mass on the Subject Property.
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85. These charts also depict the Wisteria shipwreck, which provides a stationary point
to compare the development of the Subject Property and fill placed across the entirety of the
Subject Property.
86. In a letter dated December 7, 1945, the Aide to the Base Command for Naval
Station Key West responded to an inquiry by Shark Industries wherein the Navy denied Shark
Industries request to use the spoil island and explained the following-. "Under Executive Order No.
4060, the Navy has jurisdiction over these spoil areas. The past policy of the Navy in this regard
has been for no operations by private enterprise to be set up on these areas, and the Commander
of this Base does not want to deviate from precedence so established."
H. Florida Issues a Quitclaim Deed tote Subject Property Over the Objection
of the United States Even Though It Did Not of a Colorable Claim tot
Subject Property.
87. "[I]n 1951, Florida again noticed its intent to sell Wisteria Island --this time via a
quitclaim deed(one with no warranties of title)to a private buyer." FEB 11, 52 FAth at 923 (citing
F.E.B. Corp. v. United States, 818 F.3d 681, 684(1 Ith Cir. 2016)(FEB 1)).
88. A July 11, 1951 "Plat" shows "proposed bay bottom land and spoil area to be
acquired from State I. I. Board by Mr. Paul Sawyer."
89. Sawyer served as an agent for Bernie Papy in acquiring the Subject Property, and
at that time, Papy was serving in the Florida House of Representatives.
90. The Plat depicts the Subject Property as the"proposed area to be acquired," labels
Wisteria Island "Spoil Island," and clearly delineates that it is encompassed within the boundary
of"Frankford Bank."
91. The southern boundary of Frankford Bank depicted on the Plat matches the
boundary of Executive Order 4060.
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92. On July 21, 1951, Sawyer sent the Florida Department of Agriculture an
"application"for the purchase of the"Spoil Area,"and described the Spoil Area as land that"was
dredged up out of the channel by the United States Government during World War I and is an
island now sitting above sea level."
93. On August 15, 1951, the Navy sent a "Navy Speed Letter" to the Chief of the
Bureau of Yards and Docks seeking authority to object to the TIIF's intended sale of the Subject
Property.
94. The Navy Speed Letter makes clear that the Spoil Area proposed for sale by Florida
was a"result of dredging in the main ship channel at Key West, Florida, which was accomplished
with the use of Navy funds in 1943", and was reserved for naval use under Executive Order 4060
when it was filled in.
95. In the Navy Speed Letter, the Commandant of the Sixth Naval District calls
attention to the subject property's immediacy and its strategic value:
Due to the proximity of this spoil area to highly classified Naval
activities . . . it is considered a dangerous security risk to allow this
property to fall in the hands of private developers . . . the strategic
location of this spoil area makes its use for military purposes highly
possible, and its use for a fuel storage area is now under
consideration.
96. The map attached to the Navy Speed Letter clearly identifies the Subject Property
as the"spoil area"in question.
97. "The United States objected to the sale, claiming that the federal government, not
the state of Florida, owned Wisteria Island." FEB H, 52 FAth at 923 (citing FEB I, 818 F.3d at
684).
98. On September 27, 1951, Admiral J. F. Jelley, Chief Bureau of Yards and Docks,
Department of Navy, sent a letter to TIIF objecting to the proposed sale of the Subject Property,
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making clear that the Navy understood that the"spoil area proposed for sale by the State of Florida
is located in Frankfort Bank;" that the island was "created by deposits of dredged material from
the main ship channel at Key West, Florida and was accomplished by the use of Department of
Navy funds;" and that "the Navy considers Frankfort Bank, the shoals adjacent thereto and the
spoil area in question as being the property of the United States."
99. On January 7, 152, Florida Attorney General Richard W. Ervin sent a letter to the
Florida Department of Agriculture in which Ervin stated the following: "I am unable to state
definitely whether or not the Navy's claim is valid. However,I do think that the claim is debatable
enough and so shrouded in antiquity that I think the best course would be for the 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."
100. The January 8, 1952 TIIF meeting minutes establish that TIIF decided to proceed
with issuing the quitclaim deed to Sawyer,who was acting "on behalf of Mr. Bernie Papy,"even
though the Navy made a"claim of ownership"; this is in direct contrast to how TI1F proceeded in
1924 under similar circumstances.
101. On January 9, 1952,TIIF issued a quitclaim deed for the Subject Property to FEB's
predecessor in interest, Sawyer.
102. Florida did not have a colorable claim to the Subject Property on January 9, 1952,
when it issued the quitclaim deed.
1. Congress Passes the SLA Only After it Adds the Exception Requested by the
Navy to Exclude the Subject Property from Operation of the SLA.
103. In United States v. California,332 U.S. 19(1947)(California]),the Supreme Court
ruled that the federal government, not the states, held "paramount rights and power over" the
submerged lands within the three-mile belt off the coasts of coastal states; prior to California 1,
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there was a dispute between the federal government and the states over who owned these
submerged lands.
104. "In response,Congress considered ceding some of the near-offshore undersea floor
to the coastal states, the question was how much." FEB 11, 52 FAth at 922 (citing FEB I, 818
F.3d at 687).
105. "During the legislative process, Secretary of the Navy Robert Anderson testified
before Congress that. . .the military had bases and other improvements on near-offshore islands."
Id.
106. "He expressed concern that `in some of the proposed bills[,] title of the United
States would be relinquished to all lands beneath navigable waters within State boundaries[,]
which is defined to include filled in,made or reclaimed lands."' FEB 11, 52 FAth at 922.
107. And clarified that"Title to this land has never been granted to the United States."
108. He explained the Navy's concern over the proposed legislation, and need for
amendment of the proposed legislation, which at the time already made an exception for lands to
which title had been acquired,as follows:
Practically all of these improvements, as well as the greater portion
of other naval waterfront improvement, are constructed on lands
which now are or were formerly beneath navigable waters and
include filled-in and reclaimed areas. Title to this land has never
been granted to the United States. Therefore, it is considered
essential that any legislation which would affect lands or
installations of the nature described herein should contain
appropriate provisions confirming title to and reserving title in the
United States to such lands and improvements.
Id.
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109. "One Senator asked Secretary Anderson whether he had a list of the places that
should be excluded because they had such improvements." I . In response, "Rear Admiral Ira
Nunn,the Judge Advocate General of the Navy, submitted a partial list of such places." Id.
110. "Key West(naval station), Fla"was identified as one of the locations where title to
land had not been acquired but improvements had been made, and "Fill" was identified as one of
the"improvements" at Key West Naval Station where title needed to be reserved.
Ill. "Attorney General Herbert Brownell, Jr., also testified[, and] [i]n his opening
statement, he emphasized that the Department of Justice hoped the eventual law would 'make
certain that all installations ... on submerged, reclaimed, or filled or other lands' by 'the Federal
Government' 'belong[ed] to [the Federal Government]."' FEB 11, 52 F.4th at 922-23.
112. Pursuant to Attorney General Brownell's testimony, the filled in, built up, or
otherwise reclaimed land exception was added to the legislation in order to "make certain that all
installations by the States on submerged,reclaimed,or filled or other lands inside the line, belong
to the States subject to the navigation servitude; also that all installations and acquisitions of the
Federal Government within such area belong to it."
113. Rear Admiral Ira Nunn also appeared before the Senate Committee on behalf of
Secretary Anderson. At that time,Admiral Nunn stressed the need to reserve title to lands that the
Department of Navy had"improved by the erection of permanent buildings,quay walls,piers,and
other structures, including filling in, at a cost to the Government of many millions of dollars."
114. "In 1953, Congress passed the [SLA], 43 U.S.C, §§ 1301-15, et seq., which
transferred to states the title and ownership of 'lands beneath navigable waters' within the
boundaries of states and all lands beneath navigable waters within three geographical miles of the
state's coast." FEB 11, 52 F.4th at 923 (quoting 43 U.S.C. §§ 1301(a)(1)-(2), 1311).
19
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115. "But Congress expressly excepted from this grant `all lands filled in, built up, or
otherwise reclaimed by the United States for its own use."' Id. (quoting 43 U.S.C. § 1313(a)).
116. On May 22, 1953, President Eisenhower signed the SLA into law, with the
inclusion of the filled in,built up,or otherwise reclaimed lands exception(i.e.,the"use"exception)
required by the Navy and added to the legislation shortly before it was passed. 43 U.S.C. §§ 1301-,
15,et seq.
J. The Navy Continues to Assert its Claim of Ownership Over the Subject
Property After Passage of the SLA.
117. On September 15, 1953, Admiral Jelley sent a letter to the Bureau of Land
Management(BLM)asking BLM to investigate ownership of the Subject Property and advise the
Navy"on the validity of the Federal Government's claim to ownership of the area."
118. In the letter, Admiral Jelley explained the following: "Due to the proximity of the
spoil area of the bank to highly classified Naval activities at Key West,this Department considers
it a security risk to allow the island to fall into the hands of private individuals"and that due to its
"strategy military value"the Subject Property"should be reserved to Navy use."
119. On October 27, 1954, David W. Agnew,by direction of Admiral JelIey, sent BLM
another letter addressing the"question . . . raised as to ownership of the . . . island[] . . . embraced
within Executive Order 4060 . . . and reserved thereby for use of the Navy."
120. In the October 27, 1954 letter, the Navy stated the following: "prior to 1953, no
action had been taken by the United States to relinquish [] ownership;""the subject area has been
successively reserved for Government purposes since the establishment of the Territory of Florida
in 1822;" and that "[i]nasmuch as the area is within the purview of the Submerged Lands Act of
1953,this Department is prepared to show that. . . it is excepted by Section 5 of that Act from any
proprietary rights inuring to the State by reason of that Act."
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121. "In 1954, the Navy asked the Bureau of Land Management about its claim to
Wisteria Island, explaining that Wisteria Island and the area around Frankfort Bank were of great
strategic importance. The Navy asserted that Wisteria Island was close to highly classified Naval
activities, and it would be a security risk to allow the island to fall into the hands of private
individuals." FEB H, 52 F. at 923 (internal quotation marks omitted).
K. Additional Uses and Plans to Fill the Subject Property After 1960.
122. In 1966,the Army Corps conducted a dredging project at Key West Bight.
123. For the 1966 Key West it project, "[m]aterials excavated during construction
will be placed on the existing spoil island as show on plate 2. It is proposed to utilize this spoil
island both for initial construction and subsequent maintenances."
124. Plate 2 clearly identifies the southern portion of Wisteria Island as the proposed
"spoil area" to be used in 1966 and for subsequent maintenances.
125. The Army Corps has a practice of placing spoil on existing spoil islands and would
use those locations repeatedly over long periods of time.
126. The Army Corps currently has a maintenance dredge project for the Key West
channel in the planning phase,and the Subject Property is one of several locations being considered
for the placement of spoil during that dredge project.
127. The Subject Property provides strategic value and benefit to the Navy currently.
L. The United States Filled in the Subject Property for its Own Use.
128. Dredge spoil was placed on the Subject Property for utility: the Subject Property is
located adjacent to the shipping channel and harbor and constitutes a shoal with shallow waters,
making it a useful location for the recurrent placement of spoil.
2 i%
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129. Dredge spoil was placed on the Subject Property to augment the protection the
Subject Property provided for navy operations from both natural and manmade incursions.
130. Dredge spoil was placed on the Subject Property given its strategic location, not
only in proximity to naval operations, but for future development in furtherance of those
operations.
131. The United States placed spoil on the Subject Property with federal use in mind,
including non-use as a protective feature.
132. Accordingly, the evidence establishes that when the United States placed spoil on
the Subject Property in the 1920s and again in the 1940s,it did so with the intent to use the Subject
Property in the following ways: non-use (or non-development by private parties); a protective
feature,protecting nearby naval facilities; and as a site for possible future physical improvements
in support of military defenses.
133. The United States filled in the Subject Property for its own use.
III. CONCLUSIONS OF LAW
I. The United States can only dispose of property by an express act of Congress. U.S.
CONST.art. IV, § 3,cl. 2 ("The Congress shall have Power to dispose of. . .the Territory or other
Property belonging to the United States; and nothing in this Constitution shall be so construed as
to Prejudice any Claims of the United States"). See also Royal Indem. Co. v. United States, 313
U.S. 289, 294 (1941); Intl Aircraft Recovery LLC v. Unidentified, Wrecked and Abandoned
Aircraft, 218 F.3d 1255, 1258 (11th Cir. 2000).
2. "The Government,which holds its interests [in property] in trust for all the people,
is not to be deprived of those interests by the ordinary court rules designed particularly for private
disputes over individually owned pieces of property." California I, 332 U.S. at 40.
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3. Reservations of land for public use,including military use,are made on public lands
(i.e.,lands the United States has a claim of ownership over). See United States v. Midwest Oil Co.,
236 U.S. 459, 470-71 (1915) (explaining that historically the President has, by executive order,
reserve public lands for military and other public uses: "This right of the President to make
reser[v]ations-and thus withdraw land from private acquisition-was expressly recognized in Grisar
v. McDowell,6 all. 364(9), 381, 18 L. ed. 863, 868,where(1867)it was said that'from an early
period in the history of the government it has been the practice of the President to order from time
to time, as the exigencies of the public service required, parcels of land belonging to the United
States,to be reserved from sale and set apart for public uses."').
4. Under the SLA, "Congress ceded title to all lands within three miles of the United
States' coast to the states, except for lands that were (1) 'built up,' 'filled in,' 'or otherwise
reclaimed' (2) by the United States (3) for the United States' use." FEB 11, 52 FAth at 919.
5. Accordingly, this case comes down to a question of whether the United States
disposed of its interest in the Subject Property by operation of the SLA or whether the Subject
Property is excepted frorn'the SLA under the provision of the SLA that excepts"all lands filled in,
built up, or otherwise reclaimed by the United States for its own use." 43 U.S.C. § 1313(a).
6. There is no dispute that the United States filled in the Subject Property when it
placed dredge spoils on the subject property in 1923 and again in 1943.
7. Accordingly, the Court must determine if the United did so"for its own use."
8. "Foe' as used in the SLA exception requires some intent on the part of the United
States in filling in or building up the Subject Prope ......in other words not accidentally." FEB
11, 52 FAth at 926.
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9. "Use," as used in the SLA exception, means "any utility, any way in which the
filled in land is converted to the United States' service." Id. at 926-27 (internal quotation marks
omitted and alterations accepted).
10. "Applying those definitions here, we derive three principles. First, because of the
presence of the word `for,' the filling in or building up must have some intentionality to it—it
cannot be accidental. The United States does not `build up' an island for its own use accidentally.
Second, `use' is a broad term--converting to service or employing (again, for a purpose). And
third, we note that the Act does not require actual use. That is, the text does not demand that the
use be employed. As long as the land was created to be used, it doesn't matter whether the United
States actually used the land." Id. at 927 (internal citations omitted and emphasis added).
11. Accordingly,the question in this case, as framed by the Eleventh Circuit in FEB II,
is "whether the United States had an intended use for Wisteria Island when the United States
created it." Id.
12. "[A] parry's state of mind(such as knowledge or intent)is a question of fact for the
factfinder, to be determined after trial." Id. (quoting Chanel, Inc. v. Italian Activewear of Fla.,
Inc., 931 F.2d 1472, 1476 (11th Cir. 1991)).
13. This Court holds that the greater weight of the evidence establishes that the United
States filled in the Subject Property for its own use; therefore, the Subject Property did not pass
from Federal ownership by operation of the SLA.
14. First,the United States repeatedly used the Subject Property in the 1920s and 1940s
as a place to store spoil intentionally and deliberately given its utilitarian location: spoil was not
merely discarded on the Subject Property.
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15. As the Eleventh Circuit recognized in FEB II,"[s1torage is a use." FEB H, 52 F.4th
at 927 (internal quotation marks omitted).
16. Second, the Subject Property was deliberately filled in to be used as a protective
feature protecting naval operations from natural and manmade incursions.
17. The Subject Property was, and remains, valuable to the Navy because of its
proximity to naval operations and its usefulness as a barrier against hurricane and tidal threats to
the naval operations and against possible private development of the area.
18. Third, not only was the Subject Property used to store spoil repeatedly and as a
protective feature, but the Subject Property was also filled in because of its strategic location.
19. This is not a case where the United States randomly disposed of spoil. Nor is it a
case where spoil was intentionally placed in a random area that was otherwise not being used.
Rather, this is a case where the United States intentionally placed spoil on a location that had
strategic value to the Navy and that the United States reserved for the Navy's use.
20. Fourth, the Navy had additional plans to develop the Subject Property and place
physical structures on the property.
21. When the Subject Property was filled in the 1920s, the Navy had plans to use the
Subject Property for wharfage and as a magazine(i.e.,a place to store ammunitions).
22. At various time, the Navy also had plans to use the Subject Property as a Navy
depot,a coal shed, an aviation site, dry-dock, fuel storage, and other military purposes.
23. Accordingly,the Court resolves the dispute of fact identified in FEB II---�'whether
the United States created Wisteria Island for its own use or whether Wisteria Island's creation was
an accident'•FEB 11, 52 FAth at 931--in favor of the United States.
24. The United States holds superior title to the Subject Property over FEB.
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IV. CONCLUSION
1. The United States is entitled to judgment in its favor and against FEB as to Count
I of the Complaint, (ECF No. 1).
2. Title is quieted in favor of the United States and against FEB as to the Subject
Property.
3. Accordingly, as between the United States and FEB, the United States owns the
Subject Property, and FEB holds no ownership interest.
4. Final Judgment shall enter by separate order.
5. The Clerk is DIRECTED to CLOSE this case and DENY all pending motions as
MOOT.
DONE AND ORDERED in Chambers at Miami, Florida, this, day of May 2024.
Copies provided to: JOSE E. ARTINEZ
All Counsel of Record UNITE TATES DISTRICT JUDGE
2