United States v. F.E.B. Corp.

• Docket Number: 20-14047
• Decision Date: 01 November 2022
• Citation: 52 F.4th 916
• Parties: UNITED STATES of America, Plaintiff-counter Defendant-appellee, v. F.E.B. CORP., a Florida Corporation, Defendant-Counter Claimant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

52 F.4th 916

UNITED STATES of America, Plaintiff-counter Defendant-appellee,

v.F.E.B. CORP., a Florida Corporation, Defendant-Counter Claimant-Appellant.

No. 20-14047

United States Court of Appeals, Eleventh Circuit.

Filed November 1, 2022

Anthony Erickson-Pogorzelski, U.S. Attorney Service - Southern District of Florida, Miami, FL, Michael Thomas Gray, US Army Corps of Engineers, Office of Counsel, Jacksonville, FL, Scott Dion, Emily M. Smachetti, U.S. Attorney's Office, Miami, FL, for Plaintiff-Appellee.

Bruce Stephen Rogow, Bruce S. Rogow, PA, Cedar Mountain, NC, Tara A. Campion, Bruce S. Rogow, PA, Boca Raton, FL, for Defendant-Appellant.

Before Wilson and Rosenbaum, Circuit Judges, and Conway,^* District Judge.

Rosenbaum, Circuit Judge:

A small island lies just off Key West, Florida. It was not born in the usual way. No volcanic lava plumes rose from the sea and created it. Rather, about a hundred years ago, the United States labored to dredge oceanic soil from Key West Harbor, which it piled up on the ocean floor. Later, during World War II, the United States conducted further dredging operations in the area and again dumped the soil it collected in the same area in Key West Harbor. At some point during these operations, Wisteria Island was born.

After Wisteria Island's birth, Congress ceded title to all lands within three miles of the United States's 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's use. We must determine whether Wisteria Island satisfies this exception. Only the third requirement is at issue in this appeal: whether the United States created Wisteria Island for its "use."

Plaintiff-Counterdefendant-Appellee United States says that it created Wisteria Island to store dredged soil. Defendant-Counterclaimant-Appellant F.E.B., which claims to own the island, rejects the United States's assertion that it built Wisteria Island for its "use." According to F.E.B., the island arose simply as a result of the United States's discarding of the soil it dredged from the channel. After all, F.E.B. says, merely dumping soil in a pile isn't using it.

We agree with the United States that, if it created Wisteria Island as a place to store dredged soil, then the United States built up or filled in Wisteria Island for the United States's use. But on this record, we find a genuine issue of material fact exists as to why the United States created the island. So after a thorough review of the record and with the benefit of oral argument, we affirm in part and vacate in part the district court's grant of summary judgment to the United States and denial of summary judgment to F.E.B., and we remand this case for a factual determination of why the United States created Wisteria Island.

I. FACTUAL BACKGROUND

A. The Creation of Wisteria Island

The United States received the land that became Florida—then known as "La Florida"—from Spain in the 1818 Adams-Onis Treaty. See 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.

Just over twenty-five years later, in 1845, Florida officially became a state. An Act for the Admission of the States of Iowa and Florida into the Union , Pub. L. 28-48, 5 Stat. 742 (Mar. 3, 1845). The Florida Keys, a chain of islands south of mainland Florida, is a part of the state of Florida. Key West lies at the southwest end of the Keys. The same year that Florida became a state, President Polk reserved the "shoals" of Key West for "military purposes."

Eventually, in 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.¹ Just before that, during a hurricane in 1919, a 150-foot ship called the Wisteria sank near the shallow ocean floor 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.

After the dredging was complete, two men applied to buy the island for $500. The Florida Trustees of Internal Improvement Fund published a notice that it intended to sell the island. But the Navy Department objected that the island belonged to the United States and therefore was not Florida's to sell. The Trustees withdrew the notice and rejected the application. In the meantime, the Navy Department asked the Secretary of the Interior for an executive order reserving the island for military use because the island was "directly under the guns of Fort Taylor" and, if privately developed, might "become a constant source of expense on account of claims by private parties for damages incidental to gun fire." In addition, it said, "[i]f in the future Key West defenses are to be modernized, these areas would be of great value in connection with outer defense works .... In view of their strategic location for naval purposes ... it is desired to have them formally reserved for naval purposes." Just a month later, President Coolidge issued an executive order reserving, for naval purposes, this area near Key West, including Wisteria Island.

This is a map depicting Wisteria Island in relation to Key West. A red arrow points to Wisteria Island.

The record is silent about what happened to Wisteria Island between the 1920s and 1940s. But after World War II 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. 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,² about twenty-one acres above water and eighteen below, for a total of thirty-nine acres.

The United States intended the maximum fill height—meaning how tall the island would be—to be five feet over the mean high-water line. But if the available material on the island were leveled, Wisteria Island's flattened elevation would be only three feet over the mean high-water line.

One of F.E.B.’s expert witnesses, geotechnical engineer Mr. Roberto Balbis, submitted a report stating that "[i]t appears that the discharge area was not walled off to help contain the discharge and maximize the amount of fill retained" and that the filling of Wisteria Island was "haphazard." In his view, "the haphazard manner of filling suggests that Wisteria [Island] was simply a place to discard excess spoil not needed for any purpose."

B. Legal Developments

Shortly after Wisteria Island reached its current size, oil was discovered in the undersea floor just off the West Coast of the United States. United States v. California , 332 U.S. 19, 23, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947) (" California I "). Unsurprisingly, both the United States and the coastal states claimed ownership of the oil. Id. In 1947, the Supreme Court settled the dispute by holding that the near-offshore undersea floor belonged to the United States. Id. at 40, 67 S.Ct. 1658. In response, Congress considered ceding some of the near-offshore undersea floor to the coastal states—the question was how much. See F.E.B. Corp. v. United States , 818 F.3d 681, 687 (11th Cir. 2016) (" F.E.B. I ").

During the legislative process, Secretary of the Navy Robert Anderson testified before Congress that petroleum was crucial to the military and also that the military had bases and other improvements on near-offshore islands. Submerged Lands: Hearings on S.J. Res. 13, S. 294, S. 107, S. 107 Amendment, and S.J. Res. 18 Before the S. Comm. on Interior & Insular Affs. , 83rd Cong. 545 (1953) (statement of Robert B. Anderson, Secretary of the Navy). 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." Id. at 546. The problem, Secretary Anderson said, was that a "substantial number of military and naval installations are located on filled in lands and have been improved by the erection of permanent buildings and other structures at a cost to the Government of many millions of dollars." Id. So, he concluded, it was "essential that any legislation that 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. In Secretary Anderson's view, then, "[t]hese lands with their structures are truly property which has been developed by the Federal Government and bear no immediate relation to the matter you now have under consideration." Id.

One Senator asked Secretary Anderson whether he had a list of the places that should be excluded because they had such improvements. Id. at 547. Secretary Anderson responded that he would prefer that "the title to military shore installations could be protected by a general provision." Id. But, he said, "[i]f ... Congress found that it could not properly be so protected, we would be glad to submit such descriptions as you would think appropriate." Id. Rear Admiral Ira Nunn, the Judge Advocate General of the Navy, submitted a partial list of such places. Id. at 550; see Bills to Promote the Exploration, Development, and Conservation of Certain Resources in the Submerged Lands and to Provide for the Use, Control, and Disposition of the Lands and Resources of the Lands Beneath Inland Waters and In the Continental Shelf: Hearings on H.R. 2948 and Similar Bills Before the Subcomm. No. 1 of the H. Comm. on the Judiciary , 83rd Cong. 201 (1953)) (Statement of Ira Nunn, Judge Advocate General of the Navy). Among those listed was Naval Base Key West.

...