United States v. F.E.B. Corp. ( 2022 )

USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 1 of 33
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14047
____________________
UNITED STATES OF AMERICA,
Plaintiff-Counter Defendant-Appellee,
versus
F.E.B. CORP.,
a Florida Corporation,
Defendant-Counter Claimant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 4:18-cv-10203-JEM
____________________
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 2 of 33
2 Opinion of the Court 20-14047
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 re-
claimed” (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-Coun-
terclaimant-Appellant F.E.B., which claims to own the island,
* The Honorable Anne C. Conway, United States District Judge for the Middle
District of Florida, sitting by designation.
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 3 of 33
20-14047 Opinion of the Court 3
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 chan-
nel. 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).
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 4 of 33
4 Opinion of the Court 20-14047
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 with-
drew the notice and rejected the application. In the meantime, the
Navy Department asked the Secretary of the Interior for an execu-
tive order reserving the island for military use because the island
was “directly under the guns of Fort Taylor” and, if privately de-
veloped, might “become a constant source of expense on account
of claims by private parties for damages incidental to gun fire.” In
1 The parties dispute whether the spoils location was above or below the wa-
ter line, but that distinction is irrelevant for purposes of this appeal.
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 5 of 33
20-14047 Opinion of the Court 5
addition, it said, “[i]f in the future Key West defenses are to be mod-
ernized, 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.
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 6 of 33
6 Opinion of the Court 20-14047
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 ad-
equate seaplane landing and take-off areas,” moving some 5.4 mil-
lion cubic yards of spoils over two years. The project also deep-
ened 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 Wiste-
ria Island was “haphazard.” In his view, “the haphazard manner of
2 It’s possible that the island was originally larger and shrank because of ero-
sion over time. And while that fact may be relevant at trial, the precise details
aren’t relevant to this appeal.
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 7 of 33
20-14047 Opinion of the Court 7
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 (1947)
(“California I”). Unsurprisingly, both the United States and the
coastal states claimed ownership of the oil. Id. In 1947, the Su-
preme Court settled the dispute by holding that the near-offshore
undersea floor belonged to the United States. Id. at 40. In re-
sponse, Congress considered ceding some of the near-offshore un-
dersea 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 improve-
ments on near-offshore islands. Submerged Lands: Hearings on
S.J. Res. 13, S. 294, S. 107, S. 107 Amendment, and S.J. Res. 18 Be-
fore 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 navi-
gable waters within State boundaries[,] which is defined to include
filled in, made or reclaimed lands.” Id. at 546. The problem, Sec-
retary Anderson said, was that a “substantial number of military
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 8 of 33
8 Opinion of the Court 20-14047
and naval installations are located on filled in lands and have been
improved by the erection of permanent buildings and other struc-
tures 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 ti-
tle in the United States to such lands and improvements. In Secre-
tary Anderson’s view, then, “[t]hese lands with their structures are
truly property which has been developed by the Federal Govern-
ment 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 im-
provements. 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 . . . Con-
gress found that it could not properly be so protected, we would
be glad to submit such descriptions as you would think appropri-
ate.” 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: Hear-
ings on H.R. 2948 and Similar Bills Before the Subcomm. No. 1 of
the H. Comm. on the Judiciary, 83rd Cong. 201 (1953)) (Statement
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 9 of 33
20-14047 Opinion of the Court 9
of Ira Nunn, Judge Advocate General of the Navy). Among those
listed was Naval Base Key West.
Attorney General Herbert Brownell, Jr., also testified. Sub-
merged 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. 925 (1953) (Statement of Herbert
Brownell, Attorney General). In his opening statement, he empha-
sized 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].” Id. at 926.
In 1953, Congress passed the Submerged Lands Act (the
“Act”), 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. Id. §§ 1301(a)(1)–(2),
1311. 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. § 1313(a).
C. Selling Wisteria Island
Meanwhile, two years earlier, in 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. F.E.B. I., 818 F.3d at
684. The United States objected to the sale, claiming that the fed-
eral government, not the state of Florida, owned Wisteria Island.
Id. The sale went through, anyway. Id.
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 10 of 33
10 Opinion of the Court 20-14047
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 im-
portance.” 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.”
Nonetheless, in 1967, F.E.B. acquired the title to Wisteria Is-
land. Id. Wisteria Island experienced (legally speaking) a still
breeze until 2011. And then the legal clouds began to gather.
II. PROCEDURAL HISTORY
A. F.E.B. I
In 2011, the United States asserted ownership over Wisteria
Island. Id. In response, F.E.B. sued under the Quiet Title Act, 28
U.S.C. § 2409a, arguing that it owned the island. Id. at 684–85. The
district court held that F.E.B.’s action was time-barred and dis-
missed the case for lack of subject-matter jurisdiction. Id. at 685.
On appeal, we affirmed. Under the Quiet Title Act, a cause
of action accrues when “the plaintiff or his predecessor in interest
knew or should have known of the claim of the United States” to
the real property. Id. (citing 24 U.S.C. § 2409a(g)). Florida—
F.E.B.’s predecessor in interest—knew of the United States’s claim
in 1951 because the United States had objected to the sale and
claimed ownership at that time. Id. So, we said, the twelve-year
statute of limitations began in 1951 and ran in 1963, nearly fifty
years before F.E.B.’s 2011 lawsuit. Id.
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 11 of 33
20-14047 Opinion of the Court 11
We rejected F.E.B.’s argument that the United States had ac-
quiesced in F.E.B.’s ownership or, through the 1953 passage of the
Act, abandoned the 1951 claim of ownership so as to reset the stat-
ute of limitations. Id. at 687. We reasoned that the United States
couldn’t abandon property without an affirmative congressional
act, which needed to be “clear and unequivocal,” and the Act did
not rise to that level. Id. at 688. This was so, we said, because the
Act released only some submerged lands and excepted those that
were filled in, built up, or otherwise reclaimed by the United States
for its own use. Id. As we explained, the Act wasn’t a clear and
unequivocal retraction of the United States’s claim to Wisteria Is-
land because it wasn’t apparent whether Wisteria Island satisfied
the filled-in land exception. Id.
We 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, we said “only
that, given the undisputed and well-known facts of Wisteria Is-
land’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,” we concluded, “remains
unresolved.” Id. at 694 (citations omitted).
B. The Proceedings in District Court in this Case
Following F.E.B.’s lawsuit, in 2018, the United States sued
F.E.B., seeking a declaratory judgment that the United States, not
F.E.B., held title to the thirty-nine acres—twenty acres above sea
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 12 of 33
12 Opinion of the Court 20-14047
level and nineteen below—that made up Wisteria Island. In its an-
swer, F.E.B. disputed that the property at issue was thirty-nine
acres, arguing that a little over seventeen acres were not subject to
the Act’s exception.
The parties filed cross motions for summary judgment. For
its part, the United States—seeking summary judgment as to all
thirty-nine acres—submitted evidence that the United States had
used Wisteria Island “[a]t various times before 1953 . . . as a protec-
tive barrier for naval operations . . . ; as a spoil area; and for opera-
tional purposes.” It argued that there was no factual dispute that
the island was created by dredging and used as a spoils location.
Wisteria Island, the United States said, was built up by the United
States for the United States’s use. The United States also said that
F.E.B. I’s holding—that the United States hadn’t clearly and une-
quivocally conveyed title to Wisteria Island to Florida—required
the court to find for the government. Finally, the United States
pointed out that the Navy had explicitly referenced Key West Na-
val Base as a location it wanted protected in a report to Congress
while Congress was writing the Act.
F.E.B. responded that Wisteria Island didn’t fit in the Act’s
exception for lands “filled in, built up, or otherwise reclaimed by
the United States for its own use” because the Navy had simply
discarded the dredged soil there and hadn’t done anything on Wis-
teria Island—flattened the top, built anything on it, or even pro-
tected it from erosion. F.E.B. pointed to a 1956 report from the
Commander of the Key West Naval Base explaining that “the
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 13 of 33
20-14047 Opinion of the Court 13
deposit of spoil that created Wisteria was ‘incidental to the deepen-
ing of the ship channel’ and that ‘there [was] nothing on record lo-
cally as to the intention of the Navy to use the Island after it was
created.” It also relied on testimony from Secretary Anderson,
Rear Admiral Nunn, and Attorney General Brownell, Jr., to sup-
port its claim that Congress never intended to reserve its claim to
Wisteria Island because the executive officers were concerned with
retaining lands that the United States had improved, and the United
States didn’t improve Wisteria Island.
Second, F.E.B. said our decision in F.E.B. I didn’t control the
outcome because we had explicitly left open whether Wisteria Is-
land fit within the Act’s exception. F.E.B. also attached numerous
expert reports, including an expert report from grammarian Mr.
Bryan Garner, linguist Dr. Barry Schein, and surveyor Mr. Michael
Finkbeiner. Mr. Garner’s and Dr. Schein’s reports—as well as parts
of Mr. Finkbeiner’s report—concluded that the phrase “for its own
use” in the Act must have independent meaning from “built up or
filled in” because the language would otherwise be surplusage.
F.E.B. didn’t argue that summary judgment was improper for all
thirty-nine acres because part of Wisteria Island wasn’t subject to
the Act’s exception, as it wasn’t made of dredge spoils.
The United States moved to exclude the expert reports as
improper expert opinions because they purported to analyze and
interpret statutes. Thus, the United States argued, the reports in-
vaded the province of the judge. For its part, F.E.B. asserted that
the expert-witness testimony wasn’t excludable because it was
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 14 of 33
14 Opinion of the Court 20-14047
helpful in analyzing the grammatical structure of the statute, even
if it went to the ultimate issue.
The district court entered summary judgment for the
United States. It began by defining the question at summary judg-
ment: whether the “incidental but deliberate creation” of Wisteria
Island was “for [the United States’s] own use.” Next, the district
court concluded that F.E.B. I was persuasive, but not binding, au-
thority that Wisteria Island was created for a distinct purpose. That
Wisteria Island had no future use, the district court reasoned,
wasn’t relevant because the word “future” was not in the statute.
The district court declined to rely on the grammarian expert re-
ports because, it said, statutory interpretation is the exclusive prov-
ince of the court and, if there were any ambiguity, the district court
was required here to construe the statute in favor of the United
States.
After the district court granted the United States’s summary-
judgment motion, the United States submitted a proposed judg-
ment decreeing that the United States owned all thirty-nine acres
of Wisteria Island. F.E.B. objected. In its view, only the twenty
acres above sea level could be characterized as “filled in” under the
Act’s exception. The district court entered judgment against
F.E.B., awarding all thirty-nine acres of Wisteria Island to the
United States.
F.E.B. reiterated its argument that some of the land wasn’t
“filled in” in Rule 59(e), Fed. R. Civ. P., and Rule 60, Fed. R. Civ.
P., motions. The district court ordered the parties to address
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 15 of 33
20-14047 Opinion of the Court 15
whether F.E.B. abandoned or waived the argument in its Rule 59(e)
and Rule 60 motions when it failed to make it in response to the
United States’s motion for summary judgment.
In response, the United States said that F.E.B. had waived
the argument because it had agreed that the “Subject Property”
was thirty-nine acres and that the relevant question was whether
the Act applied to those thirty-nine acres. F.E.B. took the opposite
position. It reasoned that it had preserved its argument through its
expert reports showing that not all of the thirty-nine acres were
made of dredged soil. The district court denied F.E.B.’s Rule 59(e)
and Rule 60 motions for three reasons. It concluded that F.E.B.
hadn’t preserved the argument through references in some expert
reports, that F.E.B. had invited the error in framing its summary-
judgment briefing, and, that, on the merits, the Act applied to land
in question.
F.E.B. now appeals both the entry of summary judgment
and the denial of its post-judgment motions.
III. STANDARD OF REVIEW
We review the grant or denial of summary judgment de
novo. B&G Enters., Ltd. v. United States, 220 F.3d 1318, 1322 (11th
Cir. 2000).
As for the district court’s decisions about “the admissibility
of expert testimony and the reliability of an expert opinion,” we
review them for abuse of discretion. United States v. Frazier, 387
F.3d 1244, 1258 (11th Cir. 2004) (en banc). Under this standard,
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 16 of 33
16 Opinion of the Court 20-14047
“we must affirm unless we find that the district court has made a
clear error of judgment, or has applied the wrong legal standard.”
Id. at 1259.
We likewise review for abuse of discretion the district
court’s denial of a Rule 60(b) motion for relief from a judgment or
order. Arthur v. Thomas, 739 F.3d 611, 628 (11th Cir. 2014). The
same is true of our review of the district court’s denial of a Rule
59(e) motion to alter or amend a judgment. Stone v. Wall, 135 F.3d
1438, 1442 (11th Cir. 1998).
IV. DISCUSSION
F.E.B. makes three arguments on appeal. First, F.E.B. as-
serts that the district court erred in entering summary judgment
for the United States because Wisteria Island wasn’t created for the
United States’s “own use.” Second, F.E.B. claims that the district
court erred in disregarding F.E.B.’s expert witnesses’ reports on the
statutory interpretation of the Act. And third, F.E.B. contends that
the district court erred in denying its post-judgment motions to
amend or otherwise relieve F.E.B. of the district court’s judgment
here.
A. Submerged Lands Act
We first must decide whether the Submerged Land Act’s ex-
ception for land “created for [the United States’s] own use” applies
to Wisteria Island.
Because this is a case about the meaning of a statute, we
begin “with the statutory text, and end[] there as well if the text is
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 17 of 33
20-14047 Opinion of the Court 17
unambiguous.” BedRoc Ltd., LLC v. United States, 541 U.S. 176,
183 (2004). The Supreme Court has instructed that we should gen-
erally construe words “as taking their ordinary meaning at the time
Congress enacted the statute.” New Prime Inc. v. Oliveira, 139 S.
Ct. 532, 539 (2019) (alterations adopted and internal citations omit-
ted). Here, Congress passed the Act in 1953, so we consult con-
temporaneous dictionaries. Id.We begin with the word “for.” “For” in this context requires
intent. The fourth edition of Black’s Law Dictionary—published
in 1951—defined “for” at least in part as “[t]he cause, motive or oc-
casion of an act, state[,] or condition.” For, Black’s Law Dictionary
(4th ed. 1951). And the New International Dictionary of the same
era described it similarly. For, New International Dictionary (1952)
(“having as goal or object; in order to be, become, or act as”). Cf.
Textron Lycoming Reciprocating Engine Div., Avco Corp. v.
United Auto. Aerospace & Agric. Implement Workers Loc. 787,
523 U.S. 653, 656 (1998) (“It is true enough . . . that one of the nu-
merous definitions of the word ‘for’ is . . . ‘[w]ith the purpose or
object of.’”) (citation omitted). The contemporaneous dictionaries
then, establish that land is filled in “for” the United States’s use
when the land is filled in “with the purpose or object” that the
United States will use it—in other words, not accidentally.
The other key word is “use.” “Use,” in the 1950s, had a
broad definition. The fourth edition of Black’s Law Dictionary de-
fined “use” as “to make use of, to convert to one’s service, to avail
one’s self of, to employ” and as the “act of employing everything,
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 18 of 33
18 Opinion of the Court 20-14047
or state of being employed, application; employment, as the use of
a pen, or his machines are in use. Also the fact of being used or
employed habitually[.]” Use, Black’s Law Dictionary (4th ed.
1951). The 1952 New International Dictionary defined “use” as “to
convert to one’s service, to avail oneself of”; to “engage in, carry
one, indulge in” and “function.” Use, New International Diction-
ary (1952). “Use” then, can really mean any utility, any way in
which the filled in land is “convert[ed]” to the United States’s “ser-
vice.”
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 acci-
dental. Id. 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.
The question, then, is whether the United States had an in-
tended use for Wisteria Island when the United States created it.
“As a general rule, a party’s state of mind (such as knowledge or
intent) is a question of fact for the factfinder, to be determined after
trial.” Chanel, Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472,
1476 (11th Cir. 1991). Both parties have submitted evidence sup-
porting their positions. On this record, we cannot say that
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 19 of 33
20-14047 Opinion of the Court 19
evidence necessarily resolves the question in one party’s favor. So
we hold that a factfinder must determine the United States’s intent
in creating Wisteria Island.
The United States argues that Wisteria Island was created
for the “use” of storing dredged soil. As the United States explains
the island’s history, the United States completed a dredging project
in the 1920s, dumping spoils in the area that became known as Wis-
teria Island. But that wasn’t the only time the United States depos-
ited spoils there. Twenty years later, the United States carried out
another dredging project and again dumped the spoils in the same
area—this time on top of the older spoils. The United States sug-
gests that, when Wisteria Island was created, it served as a desig-
nated storage site for dredging spoils extracted from the Key West
area.
We agree that, if true, this purpose could fit within the Act’s
“for its own use” exception. “Storage” is a use. So if that was the
United States’s intent in creating Wisteria Island—to establish a
storage location for spoils from the Key West area at the time of
the original buildup in the 1920s and also beyond—the United
States “convert[ed] [the soil] to [its] service.” Use, New Interna-
tional Dictionary (1952).
But uncritically accepting the premise that the concept of
“storage” fits within “use” would eviscerate the meaning of the lat-
ter term. That is, the United States could argue that anytime it put
dredge spoils (or even trash) in a spot, and those deposits created
land, it was “storing” the spoils or trash there. Under that theory,
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 20 of 33
20 Opinion of the Court 20-14047
all filled-in or built-up lands would be created for the “use” of stor-
ing dredged spoils. The phrase “for its own use” would be surplus-
age—a result we strive to avoid. See A. Scalia & B. Garner, Reading
Law: The Interpretation of Legal Texts 174 (2012) (“[No words]
should needlessly be given an interpretation that causes it to dupli-
cate another provision or to have no consequence.”).
So how do we draw the line between storage that is “use”
and simple dumping? Speaking in normal parlance, when we put
soil (or anything else) in a particular place, sometimes we are stor-
ing it and other times we are disposing of it. The difference be-
tween storage and discarding is, in our view, an intent of future
use. 3 For instance, when we put unwanted trash in the trashcan,
we are disposing of it because we don’t want it anymore and don’t
intend to use it; we aren’t “storing” it there. On the other hand,
when we leave the car in the garage, we are storing it (not disposing
of it) because we are going to use it in the future.
Applying that logic here, we consider the United States’s in-
tentions when it built up what became known as Wisteria Island.
If, at that time, the United States intended to use it not just then
but also in the future as a designated place to put dredge spoils from
the Key West area, then it created Wisteria Island for its own use—
namely as a location to store dredging spoils. But if the United
States just dumped the spoils in the area with no intention of ever
3 Still, as we have noted, there is no requirement that the United States actu-
ally use the land in the future.
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 21 of 33
20-14047 Opinion of the Court 21
depositing further dredge spoils (or otherwise using Wisteria Is-
land), then the United States did not create Wisteria Island “for its
own use.” Rather, it just discarded the spoils in a pile that became
known as Wisteria Island. And that does not qualify as “for its own
use.”
The Supreme Court’s decision interpreting the Act, Califor-
nia ex rel. State Lands Commission v. United States, 457 U.S. 273(1982) (“California II”), reinforces this analysis. In California II, the
United States had built protective barriers at the entrance of Hum-
boldt Bay. Over time, as the bay’s tides moved sand, that water
movement caused sand to build up around the barriers, creating
dry land. Id. at 275. The United States and California debated who
owned land that had accreted around the jetties. 4 Id. at 276. The
Supreme Court resolved the case on choice-of-law and riparian-law
grounds. It concluded that, under applicable federal law, accreted
lands belonged to the upland owner, the United States. Id. at 285–
86.
But California also made a second, independent argument.
It contended that, even if the accreted land belonged to the United
4 “Accretion” occurs when water “gradual[ly] and imperceptibl[y]” deposits
silt, sand, soil, or sediment on an existing structure “so as to create new dry
land in an area that was previously covered by water.” Proof of Accretion or
Avulsion in Title and Boundary Disputes Over Additions to Riparian Land, 73
Am. Jur. Proof of Facts 3d 167 (Sept. 2022 Update), I.B., § 6.
A jetty is a barrier projecting into the sea or other body of water to protect a
harbor. Webster’s Universal College Dictionary (1st ed. 1997).
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 22 of 33
22 Opinion of the Court 20-14047
States, the Act constituted an express surrender of the title. Id. at
286. The Supreme Court rejected this argument because the Act
didn’t apply to accreted land. Id. at 287 (“We do not read this pro-
vision of the Act as applying to the gradual process by which sand
accumulated along the shore, although caused by a jetty affecting
the action of the sea.”). And even if the Act had applied, the Su-
preme Court said, the accretions fit the exception for “all lands
filled in, built up, or otherwise reclaimed by the United States for
its own use.” Id. at 287.
While this final statement is dicta, 5 it is Supreme Court
dicta. So we apply it as much as the text of the statute allows. See
Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006) (“[T]here is
dicta and then there is dicta, and then there is Supreme Court
dicta.”). Applying those facts here, if the unintentional accretion of
5 That statement is dicta for two reasons. First, we so characterized it in our
prior appellate decision interpreting this statute. See F.E.B. I , 818 F.3d at 689
(“In California II, the Supreme Court stated in dicta that the SLA exception for
land built up by the United States ‘for its own use’ would apply to coastline
that had slowly accreted after the United States constructed jetties nearby[.]”).
We are bound by that determination here. Smith v. GTE Corp., 236 F.3d 1292,
1304 (11th Cir. 2001) (explaining that the prior panel precedent rule applies to
the earlier case’s “reasoning and result”). Second, because the Supreme Court
held that the Act didn’t apply, its statement that an exception to the Act would
apply wasn’t necessary to decide the case. Jordan v. Hamlett, 312 F.2d 121,
124 (5th Cir. 1963) (“In any event, what was said there in this regard was not
necessary to the holding[] and was dictum.”). The Supreme Court’s decision
would be unchanged if the sentence about the Act’s exception were eliminated
because the Supreme Court held that the Act didn’t apply at all.
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 23 of 33
20-14047 Opinion of the Court 23
land around a jetty that the government built for its own use could
qualify for the Act’s “use” exception, then if the United States in-
tended what eventually became Wisteria Island to serve as a loca-
tion for dredging-spoil deposits, that land purposefully piled into a
particular place would also qualify.6
6 Some might suggest that California II could be read as creating a rule that
the Act does not require an intended use for the land at all. After all, the land
accreted around the jetties in California II inadvertently—the United States
did not fill it in for its own use (though, of course, the United States did build
for its own use the jetties around which the land accreted). But we don’t read
California II this way because it would cause the language in the Act—“filled
in for the [United States’s] use”—to be surplusage. That is so because, if inad-
vertently created land were land created “for the United States’s use,” then all
land would qualify under the exception, and the “for its own use” phrase
would be meaningless.
The Supreme Court in California II had no occasion to consider whether the
Act included a use requirement because it held the Act didn’t apply at all to
the land in question and devoted only a paragraph to the topic. See Schwab,
451 F.3d at 1325 (following dicta because “[t]his is not subordinate clause, neg-
ative pregnant, devoid-of-analysis, throw-away kind of dicta. It is well thought
out, thoroughly reasoned, and carefully articulated analysis by the Supreme
Court describing the scope of one of its own decisions”).
We are duty-bound to follow the Supreme Court’s decisions but we don’t un-
necessarily follow dicta to the point at which the result would conflict with
the express text of a statute. See, e.g., Oklahoma v. Castro-Huerta, 142 S. Ct.
2486, 2498 (2022) (“Dicta that does not analyze the relevant statutory provi-
sion cannot be said to have resolved the statute’s meaning. . . . [T]he Court’s
dicta, even if repeated, does not constitute precedent and does not alter the
plain text of the General Crimes Act[.]”).
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 24 of 33
24 Opinion of the Court 20-14047
F.E.B. rejects this conclusion, relying on an expert witness
(Mr. Balbis) who said 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.” Mr. Balbis continued that “the haphazard manner of
filling suggests that Wisteria [Island] was simply a place to discard
excess spoil not needed for any purpose.” Maybe so. But even if it
was, that does not necessarily mean that the United States did not
create Wisteria Island “for its own use.” As we’ve explained, if the
United States created the land with the intent of designating a
dredge-spoils dumping ground (or a place to “store” the dredge
spoils, as the United States describes it)—not just for the original
dredging project in the 1920s but for other dredging projects in Key
West Harbor in the future—then it created the island “for its own
use.”
On this record, we can’t tell. To be sure, the United States
argues that it built Wisteria Island for the purpose of storing dredge
spoils. And the United States did, in fact, later use Wisteria Island
for the dumping of additional dredge spoils. But as we’ve noted,
F.E.B. has also presented evidence from its experts that a factfinder
could find supports the notion that the United States had no plan
for future use of Wisteria Island when it created the land. So on
this record, it’s not clear to us what the United States’s intent was
at the time it built up what became known as Wisteria Island. For
that reason, a factfinder must determine what the United States’s
intent was. Williams v. Obstfeld, 314 F.3d 1270, 1277 (11th Cir.
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 25 of 33
20-14047 Opinion of the Court 25
2002) (“[T]he existence of knowledge or intent is a question of fact
for the factfinder, to be determined after trial.”). 7
The parties argue instead that each is entitled to full sum-
mary judgment. We are not persuaded.
First, we reject the United States’s argument that we are
bound by F.E.B. I ‘s statement that “Wisteria Island’s origin is un-
disputed: It was built up by Navy contractors, who used the land
for the government's purpose and benefit of storing fill accumu-
lated from nearby dredging operations.” F.E.B. I, 818 F.3d at 688.
To the contrary, F.E.B. I explicitly declined to decide whether the
Act’s exception applied to Wisteria Island. Id. at 693 (holding that
the facts of Wisteria Island’s creation “gave rise to an open and ob-
vious question as to whether the [Act] applied” leaving “further ex-
plication of these issues to future cases”).
Second, we find unpersuasive the United States’s appeal to
the presumption that “grants of federal property are construed
strictly in favor of the United States.” F.E.B. I, 818 F.3d at 689. The
presumption is that “nothing passes except what is conveyed in
7 The trial will be a bench trial because neither side demanded a jury trial. See
Fed. R. Civ. P. 38 (d) (“A party waives a jury trial unless its demand is properly
served and filed.”); cf. United States v. Florida, 482 F.2d 205, 207 (5th Cir. 1973)
(holding non-jury trial where United States filed a declaratory judgment action
to quiet title). In addition, F.E.B. was not entitled to a jury trial because it
counterclaimed against the United States. See 28 U.S.C. § 2409a (“A civil ac-
tion against the United States under this section shall be tried by the court
without a jury.”).
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 26 of 33
26 Opinion of the Court 20-14047
clear language.” United States v. Union Pac. R.R. Co., 353 U.S. 112,
116 (1957). But here, the Act is an explicit textual grant of federal
property. The only question is whether Wisteria Island fits within
an exception to that clear grant. That answer turns not on the clar-
ity of the textual grant but on the facts about the purpose (or lack
thereof) underlying Wisteria Island’s creation.
And third, the United States points out that, when asked for
a list of “filled in” lands, Rear Admiral Nunn submitted a list to
Congress that included the naval station at Key West. That fact
might well be evidence that the factfinder could consider. But Rear
Admiral Nunn’s submission—as a member of the executive
branch—is evidence of executive intent, not legislative intent. The
United States hasn’t directed us to—nor have we found—a con-
gressional report or committee report that Congress specifically in-
tended to retain title to Wisteria Island—only that the executive
branch wanted Congress to do so. See Demby v. Schweiker, 671
F.2d 507, 511 (D.C. Cir. 1981) (rejecting “the contention that the
views of an officer of the Executive Branch . . . constitute evidence
probative of congressional intent under the circumstances here”).
In short, the United States has submitted only enough evi-
dence that it created Wisteria Island for its own use to get to a
trial—not for judgment as a matter of law.
F.E.B.’s arguments fare no better. First, F.E.B. contends that
“dredging is not a use.” This is so, F.E.B. says, because all dredged
lands are filled-in lands. So F.E.B. posits that if dredged lands were
“lands filled in, built up, or otherwise reclaimed by the United
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 27 of 33
20-14047 Opinion of the Court 27
States for its own use,”43 U.S.C. § 1313(a) (emphasis added),
merely because the United States had dredged them, then “for its
own use” would be redundant of “lands filled in, built up, or other-
wise reclaimed by the United States.” Put simply, F.E.B. reasons,
the phrase would lack meaning.
We agree that, if the United States’s discarding of spoils—
never intended for any future purpose—constituted use, then the
word “use” would be surplusage. But as we’ve explained, if the
United States intended to use what became Wisteria Island as a des-
ignated dumping location for future dredge spoils, that’s a “use” in
the same way that a garbage dump is a “use” of the land on which
it is located.
Second, F.E.B. emphasizes that the United States never used
Wisteria Island in a more traditional sense. That is, the military
never built a structure on it and the United States never otherwise
improved it in any way. But because our focus must center on why
the land was built, post-creation use (or lack thereof) isn’t disposi-
tive. What matters is why (at the time of filing in or building up)
the land was reclaimed. Was it accidental or was it for a reason?
To be sure, that the United States never built an installation on the
island may be probative of the fact that the United States didn’t “fill
in” Wisteria Island for use as a military base. But it isn’t probative
of whether the United States built Wisteria Island at the time for a
purpose. Besides, the record shows that the United States did de-
posit additional dredge spoils about twenty years after it originally
filled in the area. So again, if the United States created the island as
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 28 of 33
28 Opinion of the Court 20-14047
place for contemporaneous and future dredge-spoil deposits, that
still would be “for its own use.”
Third, F.E.B. relies on legislative history to show that Con-
gress never intended for the Act to cover Wisteria Island. It cites
the testimony of Secretary of the Navy Robert Anderson, Rear Ad-
miral Ira Nunn, and Attorney General Herbert Brownell, Jr. But
none of the three were members of the legislative branch, so their
views can tell us little about what Congress intended. See Demby,
671 F.2d at 511.
As the District of Columbia Circuit has put it, “[executive
officials’] views are binding neither upon Congress nor the courts
in determining the meaning of this congressional enactment. They
are, in essence, no more than free advice on the subject of how
Congress might, if it chose, achieve a particular end.” Id. Rather,
“Congress’ acceptance or rejection of such counsel suggests little
about its true legislative intent. The only value of such comment
is as an interpretation by an administrative official.” Id. We agree.
On this record, 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. Given that
a genuine dispute of material fact exists, we must vacate the district
court’s entry of summary judgment and remand for trial.
B. Expert Witnesses
F.E.B. also raises some arguments about its experts. First, it
asserts that the district court abused its discretion in excluding
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 29 of 33
20-14047 Opinion of the Court 29
F.E.B.’s expert witnesses’ testimony on the meaning of “for its own
use.” And second, F.E.B. contends that the district court abused its
discretion when it excluded the report of Mr. Finkbeiner, its expert
surveyor, because, in F.E.B.’s view, the report would have been
helpful. We disagree.
Under Federal Rule of Evidence 702, a witness with particu-
lar “knowledge, skill, experience, training, or education” may offer
opinion testimony if that witness’s knowledge “will help the trier
of fact to understand the evidence or to determine a fact in issue[.]”
Fed. R. Evid. 702 (emphasis added).
The district court did not abuse its discretion in excluding
F.E.B.’s experts because statutory interpretation is a legal question
for a judge, not a factual question for the trier of fact. Commodores
Ent. Corp. v. McClary, 879 F.3d 1114, 1129 (11th Cir. 2018). And
at summary judgment, there is no trier of fact. Rather, the district
court answers legal questions and determines whether enough ev-
idence allows for a rational trier of fact to find for the non-moving
party. See Fed. R. Civ. P. 56; Fernandez v. Bankers Nat’l Life Ins.
Co., 906 F.2d 559, 569 (11th Cir. 1990) (“[T]he district court inap-
propriately acted as the trier of fact and erred in granting summary
judgment to Bankers.”). While expert witnesses may offer opin-
ions on an “ultimate issue” in a case, they may not offer “legal con-
clusions.” Commodores, 879 F.3d at 1128–29. In Commodores
Entertainment Corporation, for instance, the excluded expert re-
port opined that the “original members ‘owned the underlying
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 30 of 33
30 Opinion of the Court 20-14047
marks jointly as tenants in common.’” Id. at 1129. We said this
legal conclusion was “properly struck.” Id.
Assuming without deciding that legal-conclusion expert re-
ports may be admissible in limited circumstances, 8 the district
court didn’t abuse its discretion in excluding the reports here.
Mr. Garner’s expert report was explicitly a legal opinion. He
acknowledged that, “[a]s a textualist, [he] abstain[ed] from using
legislative history.” Then he told the district court that he “be-
lieve[d]” his opinions “accord[ed] with sound principles of textual
interpretation, and in [his] opinion the provision in question is un-
ambiguous.” Given that which interpretive sources to use and the
ambiguity of a statutory provision are unquestionably matters of
statutory interpretation, the district court did not abuse its discre-
tion in excluding the report.
Dr. Schein’s report is perhaps a slightly closer call (but not
much). Dr. Schein offered background principles of English gram-
mar, explaining how causative verbs function. But Dr. Schein also
characterized his retention as an expert as being “to interpret sec-
tions of the Submerged Lands Act.” As we have discussed, though,
statutory interpretation is a matter for a judge. So we cannot say
8 We can imagine circumstances in which such testimony—say, about foreign
law or about the historical underpinnings of a term or phrase—might be help-
ful. See, e.g., District of Columbia v. Heller, 554 U.S. 570, 605 (2008) (analyz-
ing the original public meaning of the Second Amendment).
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 31 of 33
20-14047 Opinion of the Court 31
that the district court exceeded the bounds of its discretion in ex-
cluding Dr. Schein’s report.
Finally, F.E.B. asserts that the district court abused its discre-
tion when it struck parts of the report of F.E.B.’s expert surveyor,
Michael Finkbeiner.9 We disagree.
The district court did not err in striking the parts of the re-
port that it excluded because Finkbeiner (1) defined legal terms; (2)
opined on whether the United States in fact “filled in” the subject
property or (3) explained the legal history of Wisteria Island. The
district court did not need any assistance in finding or applying legal
definitions. See Commodores, 879 F.3d at 1128–29. It therefore
did not abuse its discretion in excluding parts of the surveyor’s re-
port.
C. Reconsideration
Finally, F.E.B. argues that the district court erred in award-
ing all thirty-nine acres of Wisteria Island to the United States be-
cause the land below the water line is not “filled in” land. It says
that the only competent evidence—a surveyor’s report—described
the submerged land as “non-filled seabed.” F.E.B. also claims that
9 We aren’t sure whether the district court actually excluded the report. The
district court did not reference Finkbeiner’s report. Nor did it describe the
surveyor Finkbeiner in the excluding language of its order—referring to only
“[l]inguists, legal lexicographers, and grammarians.” But it granted the United
States’s motion—which sought to exclude parts of Finkbeiner’s report—in
full. So we proceed as if the district court excluded the requested portions of
Finkbeiner’s report.
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 32 of 33
32 Opinion of the Court 20-14047
it preserved the argument when, in its answer to the United States’s
complaint, it denied that all thirty-nine acres were subject to the
Act. Because submerged land cannot be considered “filled in,”
F.E.B. reasons, the district court clearly erred in awarding the
United States title to those parts of Wisteria Island. We are not
persuaded.
The district court did not abuse its discretion in denying
F.E.B.’s motions because F.E.B. failed to preserve the issue. Liti-
gants cannot use a Rule 59(e) motion to “raise argument or present
evidence that could have been raised prior to the entry of judg-
ment.” Michael Linet, Inc. v. Vill. of Wellington, 408 F.3d 757, 763
(11th Cir. 2005). The same goes for Rule 60(b). Arthur, 739 F.3d
at 628.
Here, the United States sued for a declaration that it owned
all thirty-nine acres of Wisteria Island. It also moved for summary
judgment as to all thirty-nine acres of Wisteria Island. F.E.B. did
not respond by arguing that summary judgment as to all thirty-nine
acres would be improper; it argued only that Wisteria Island wasn’t
“filled in or built up” for the United States’s own use within the
meaning of the statute. F.E.B. never asserted that below-sea-level
spoils weren’t “built up.” Because F.E.B. didn’t develop this argu-
ment before the district court granted summary judgment, the dis-
trict court didn’t abuse its discretion in denying the motions.
To be sure, F.E.B. mentioned this distinction in three places:
(1) in one paragraph of its Answer; (2) in one sentence of its own
motion for summary judgment; (3) in one sentence of one expert
USCA11 Case: 20-14047 Date Filed: 11/01/2022 Page: 33 of 33
20-14047 Opinion of the Court 33
report. But those three snippets cannot preserve the issue. District
courts resolving summary-judgment motions are not on buried-
treasure hunts. And “[a] passing reference to an issue in a brief is
not enough[.]” Hamilton v. Southland Christian Sch., Inc., 680
F.3d 1316, 1319 (11th Cir. 2012). When the United States moved
for summary judgment as to all thirty-nine acres, F.E.B. had to
“plainly and prominently” clarify that it (thought that it) had title
to the underwater acres regardless of the status of the above-sea-
level land. United States v. Willis, 649 F.3d 1248, 1254 (11th Cir.
2011). It did not do so. For that reason, the district court did not
abuse its discretion in refusing to consider F.E.B.’s fallback posi-
tion.
V. CONCLUSION
If Wisteria Island was “filled in” or “built up” for the United
States’s “use,” then it belongs to the United States. But on this rec-
ord, we are unsure of the United States’s intent in creating Wisteria
Island. The reason the United States created Wisteria Island re-
mains the subject of a genuine question of fact that must be an-
swered by a trier of fact. So we affirm in part and vacate in part,
remanding for further proceedings consistent with this opinion.
AFFIRMED IN PART and VACATED AND REMANDED
IN PART.