Feds unsure whether they own island at center of long-running Fla. dispute

Across from Key West's famous Mallory Square, a few hundred yards past mile marker zero, sits an uninhabited island known to locals as "Christmas Tree Island," a pile of coral and sand that has come to represent the last of the Florida city's laid-back, marauder roots.

While Key West became a tourist destination, Christmas Tree Island remained a locals' hangout -- where partiers rolled out kegs, the homeless set up lean-to tents and live-aboard boaters anchored for free. Likewise, the debate over the island's future -- and whether developers can turn it into a residential community -- has stayed local and in the confines of heated city commission meetings.

That is, until the federal government announced in November that it owned the island, after more than a half-century of bureaucratic amnesia.

The Bureau of Land Management has since tempered that announcement, recently calling it a "preliminary decision." Though officials say a final ruling is forthcoming, a spokesman said the agency has not set a deadline.

In the meantime, the local controversy over the island continues with the added uncertainty of federal intervention.


Vocal residents have waged a yearslong war against plans to put houses on the island, arguing that it would destroy a natural area the federal government once intended as a wildlife refuge. But Roger Bernstein, whose company has paid taxes on it since 1967, maintains that he owns the property and should be able to develop it.

"I'm more than a little bit annoyed that this thing comes up at this point in this posture," Bernstein said in a recent interview. "Out of the blue, BLM writes this in November without ever contacting the person who has been paying taxes on it. ... That's a pretty bizarre way for a government agency to act."

But if the government's actions are unexpected, they fit in with the story of Christmas Tree Island, which can sound as absurd as a tale told by south Florida novelist Carl Hiaasen.

As Floridian as Key lime pie

The island -- officially named Wisteria Island -- didn't exist before the late 19th century. At that time, the Navy began dredging Key West Harbor to make a channel for ships traveling to what was then a prosperous port. The leftover sediment eventually created two islands: Wisteria and what is now known as Sunset Key.

Sunset Key is now home to a few dozen houses, but Wisteria Island was never developed. Instead, it became a convenient spot for a string of makeshift businesses, including -- according to local legend -- a company that skinned sharks, cured their hides and sold them to China.

In 1951, the state of Florida sold the property to Bernie Papy Jr., a state representative known as the "King of the Florida Keys." The lawmaker -- who served in the state Legislature for 26 years -- is most often mentioned today for introducing (unsuccessful) legislation that would have levied a $100 fine on anyone advertising Key lime pies not made from Key limes.

Papy sold the island a few years later, and in 1967 it ended up in the hands of F.E.B. Corp., the company owned by Bernstein.

But did the state have the right to sell the island in the first place?

Naja Girard, who has led opposition to the island's development, doesn't think so. Passionate about keeping Wisteria Island undeveloped, she spent hours researching how Papy came to own the island -- going as far as to travel to Washington, D.C., on her own dime. At the National Archives, she found documents indicating that the federal government never relinquished its ownership of the island.

In one letter -- dated Sept. 27, 1951 -- the chief of the Navy's Bureau of Yards and Docks objects to the state's imminent sale of Wisteria Island, concluding that it still belongs to the United States.

The Navy's objection also is noted in minutes for the meeting where the sale of the island was approved. But the trustees of Florida's Internal Improvement Trust Fund voted to confirm the sale anyway, as long as Papy was willing "to take the risk of condemnation by the Government."

Papy paid $2,769 for 39 acres, with the agreement that the trustees would return the money if the federal government took the land back. Girard contends that was an insider deal for a lawmaker who knew all the right people.

"Nobody would tell Papy what to do," she said. "You can't sell something you don't own. They did it anyway."

The Interior Department seems to agree. In a November news release titled "Wisteria Island Found to be in Federal Ownership," BLM refers to a series of presidential executive orders that included the island as part of the federal real estate portfolio.

The first, in 1908, reserved the island's use for the Navy. The last, in 1982, transferred the property from the Navy to the Fish and Wildlife Service.

But Bernstein, a lawyer, argues that BLM jumped the gun, neglecting to look at other events in what he described as a "long, complex chain of title."

The Submerged Lands Act of 1952, for example, gave coastal states ownership of submerged lands within 3 nautical miles of their shores. He also pointed to the fact that his company, F.E.B. Corp., has paid taxes on Wisteria Island for the past 45 years.

Once Interior fully vets the issue, he said, "we are certain that this bureaucratic ownership issue will be resolved in our favor."

Down the rabbit hole

Whatever the outcome, it is unlikely to temper what has become a passionate war behind Key West's touristy facade.

It began in 2007, when Bernstein petitioned the city to annex the island, then believed to be part of unincorporated Monroe County.

He wanted to build a residential community, complete with a bar and restaurant. The development, he argued, would put to good use an island that had become a trespasser's paradise.

But county zoning laws meant he could build only a few houses on the property; Key West, however, allows much denser development. Any utilities also would have to come from the city.

The effort sparked a large campaign against the move. Girard -- and the local group Last Stand, for which she is vice president -- issued hundreds of documents and photos aiming to prove that Wisteria Island is home to varied wildlife. They solicited advice from naturalists, captured videos of nesting turtles and painstakingly recorded every native plant.

Bernstein's tactics also became a target. Last year, Girard accused Bernstein of asking a Key West street performer to collect dirt on her and her husband. The performer -- Dennis Walsh -- is known in the city as the "dirty jokes guy," charging tourists a dollar for each crude crack.

In a letter to Walsh in September 2010, Bernstein asks what he knows about the "activities" of Girard and her husband, Arnaud. Walsh responds with ways to "discredit" Arnaud Girard, whose business includes salvaging boat wrecks and responding to marine emergencies.

The letters -- provided by Girard to Greenwire with the understanding that the unredacted versions not be released -- proved an unflattering connection.

A few months after the correspondence ended, Walsh was arrested over accusations that he brutally beat his girlfriend on the sailboat he anchored off Wisteria Island.

According to a news release from the Monroe County Sheriff's Office, the woman told police that Walsh choked her, tied her up and then passed out from drinking. She said she managed to escape into the water, swimming to a nearby boat for help.

In a recent interview, Bernstein said his relationship with Walsh was specifically about Walsh volunteering to notify the authorities of illegal activity and trespassers. Walsh, he said, had asked permission to walk his dog on the island -- a courtesy he said was rare.

Indeed, Bernstein described an island that saw so many trespassers, it became piled with lean-to tents, marine batteries, debris and human waste.

How that has been cleaned up has become another point of contention. Girard says residents periodically volunteered to do it, until Bernstein put up a no trespassing sign. Bernstein says he paid thousands of dollars to cart the stuff away, though he admits it was done after he was ordered to do so by code enforcement.

Federal indecision

Bernstein has since dropped his bid for annexation and now argues that Wisteria Island is not on the county zoning map. His company, he said, hopes to get the "appropriate zoning category so we can make use of the island."

But first, the federal government must decide whether it owns the island.

It's changed its mind before. Prior to the November decision, BLM ruled the property was not under federal ownership because it was not a naturally occurring island. But officials later decided that it was built upon a pre-existing shoal, and thus the executive orders applied.

Federal agencies also don't seem to be jumping at the chance to take over the island's management. The Fish and Wildlife Service -- which appears to be where the federal paper trail ends -- has said the island is not within the boundaries of the Florida Keys National Wildlife Refuge. But that was before BLM made its November announcement.

Girard said she hopes that Fish and Wildlife will make Wisteria part of a refuge -- or that the city or county will take it over as a park.

"It's a really cool place," said Girard, who lived on a boat anchored off the island when her two children were younger. "Let's not take this last little thing that's actual natural forest and turn it into that same old houses for people that have second homes who don't even live here."

But would the city or county even want it? The price, at least, would be cheap: Since the controversy began in 2007, the Monroe County property appraiser has dropped the island's market value from about $235,000 to just $17,980.

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