. . . On April 29, 1985 the United States Court of Appeals, Eleventh Circuit, Atlanta, Georgia confirmed a lower Court finding that the Unidentified Wrecked and Abandoned Sailing Vessel, etc. which the National Park Service determined to be the H.M.S. FOWEY was the subject of a complaint filed in Admiralty by Jerald Joseph Klein in the U.S. District Court in Miami, Florida (CIV 79-4627-CCA) on October 4, 1979 belonged to the United States. At the time Klein filed his case he thought that he found a Spanish galleon.

. . . The H.M.S. FOWEY that bilged on Triumph Reef, just off Elliot Key on June 26, 1748 was listed as a 5th rate warship and designated as a 40-gun frigate. (Some references indicate 44 guns.) It is not clear whether in fact the H.M.S. FOWEY was actually carrying that many guns when it sunk. In their efforts to establish Klein's Admiralty claim, his attorneys, David F. McIntosh and David Paul Horan, filed on his behalf with the Court the coordinates of the wreck site. Klein was asserting a claim on a location within 3,000 yards from a point beginning at coordinates 25° 29'N latitude and 80° 08'W longitude, which is on the edge of Triumph Reef, an area that is within the Legare Anchorage. The Leagre Anchorage is an area that is shown on charts dating back to 1856. It is currently marked on NOAA Chart 11451, Note C, as a "CLOSED AREA"; closed to scuba diving, snorkeling, swimming, floating and any activity that involves placing persons or equipment on, in, or under the water. Use of any underwater viewing device including but not limited to face masks, glass bottom boats, glass bottom buckets or cameras is restricted.

. . . A recent ruling by the U.S. 4th Circuit Court of Appeals, Norfolk, Virginia pertaining to the wrecksites of the Spanish warships JUNO and LA GALA that sunk off the coast of Virginia over two centuries ago, confirmed ownership to these wrecks to the government of Spain notwithstanding that they were discovered by Sea Hunt, Inc., a maritime salvage company. Sea Hunt, Inc. was seeking an Admiralty claim on the wreck sites. The Court's ruling has brought to the forefront the legal concept of "Sovereign Immunity" to the marine salvage community. This legal concept has largely been ignored by both Treasure Salvors and governments alike. Under International Maritime Law, which is now being vigorously asserted on occasion, a "Sovereign" has property rights to its warships and or ships that it operates in perpetuity unless it has expressly renounced or waived these rights. What acts that may be performed by a "Sovereign" which constitutes renouncing and waiving its rights is somewhat vague and obscure. However, in the case of the JUNO and La GALA the Court affirmed that Spain held title and property rights to the remains of these vessels.

. . . A matter which has puzzled me for sometime is just who actually owns and has title to the remains of the H.M.S. FOWEY along with artifacts recovered by the National Park Service and in possession of the Southeast Archaeological Center of the National Park Service, located in Tallahassee, Florida if the concept of "Sovereign Immunity" applies? In reviewing the extensive case files relating to the Klein proceeding (CIV 79-4627-CCA) it is not apparent that the U.S. Attorney, Rebecca A. Donnellan, U.S. Department of Justice, representing the National Park Service ever brought up the subject of "Sovereign Immunity" before the Court and it is not evident whether the various District Court Judges, Hastings, King, and Atkins, ever focused on the fact that the shipwreck remains in question which ownership was being sought by Jerald Joseph Klein, and later his wife Joan after Mr. Klein's untimely death in 1982, and the National Park Service was a British warship. As such, the United Kingdom was entitled to retain its sovereign rights and continuing ownership to the H.M.S. FOWEY remains. Furthermore, it does not appear that the issue of "Sovereign Immunity" ever entered into the decision of the Eleventh Circuit Court of Appeals. Although Klein thought he had found a Spanish galleon in 1978, surely the National Park Service suspected and believed that the wreckage on the bottom, Site BISC-UW-20, was that of the H.M.S. FOWEY as determined and described by Russell K. Skowronek in his report to the National Park Service dated December 2, 1981 HIS MAJESTY'S SHIP FOWEY, HISTORICAL RESEARCH IN GREAT BRITAIN.

. . . Perusing the trial transcript I gleaned several interesting items. Apparently Klein's lawyers found out in early 1983 that National Park Service personnel were diving the FOWEY shipwreck site for several years and recovering artifacts seemingly in violation of Judge Hastings' instructions of January 10, 1980: "I caution the government and the government is hereby instructed to preserve, since we have not arrived at the merits in this matter, not only the status quo, but to do everything within its inherent power to preserve the environment."

. . . According to the transcript Klein's lawyer David McIntosh asserted that Judge King, who succeeded Judge Hastings, "admonished the government for doing so and they (the National Park Service) promised that they would not do so again in the future." It seems that the government lawyers when confronted with this revelation before the Court that National Park Service personnel were in fact diving the site and recovering artifacts responded claiming "privilege" and that somehow that the National Park Service actions were confidential and classified and that neither Klein nor the Court were to be told of these matters, giving rise to Klein's attorneys to speculate before the Court that the National Park Service was in fact merely a competing salvor, if not a "looter", under the circumstances.

. . . Even as of this date some 20 years after, the National Park Service has endeavored to hide under a veil of secrecy their activities involving the H.M.S. FOWEY site and to deny requests made under the Freedom of Information Act (FOIA) for reports including a listing of recovered objects along with permission to view and photograph them made on September 9, 2000. During the Klein Court proceedings the government attorneys stated that recovered artifacts had been properly conserved and were placed in storage at the Southeast Archaeological Center. In addition the Southeast Archaeological Center chose not to produce copies of "ALL" reports that were prepared at taxpayer expense pertaining to the H.M.S. FOWEY project as requested suggesting that they regard the information as extremely sensitive and accordingly, do not intend to make them available.

. . . In an appeal filed on November 22, 2000 the Interior Department's Freedom of Information Act Appeals Officer wrote in his letter dated December 19, 2000 that the reason for not responding to the appeal request: "the extraordinary large number of FOTA appeals that the Department has received has created a heavy workload which will delay the Department's response to your appeal." However, it is worth noting that the Appeals Officer did acknowledge that I have the right to treat the delay in responding as a final denial of the request and that I could seek judicial review in the United States District Court for the District in which I reside. In a telephone conversation with a member of the Solicitor's office of the Department of Interior and an attorney I have retained to pursue the matter further to ascertain when a response would be forthcoming, the Interior's lawyer mentioned that their office had some 282 appeals on backlog, some of which going back to 1992. (Giving one to wonder whether the delay in acting upon requests is merely divisive and a further effort to discourage and stonewall requestors.)

. . . In further researching the FOWEY matter, on page 50140, FEDERAL REGISTER, Volume 55, No. 233 of Tuesday, December 4, 1990 the National Park Service claimed that the H.M.S. FOWEY, a British "merchant vessel" is owned by the U.S. Government and it is listed in the National Register as part of an archaeological district, the Legare Anchorage, and that it is considered as nationally significant." I find it rather odd that whoever drafted this statement, supposedly knowledgeable about the background of the H.M.S. FOWEY would refer to the ship, a Royal Navy frigate, as a "merchant vessel."

. . . On page 50136 of the same issue of the FEDERAL REGISTER, paragraph (e) contains a reference to the fact that under customary International Law, access by any U.S. national to a shipwreck entitled to "Sovereign Immunity" is prohibited and that permission to access the wrecksite is required from the Sovereign and that then, it is only to individuals named by the Sovereign for specific purposes. (I have often wondered whether National Park Service personnel were ever formally granted such permission by the United Kingdom.)

. . . In communicating with officials of the United Kingdom's Ministry of Defense about the H.M.S. FOWEY, personnel of the Ministry have taken the position, which was expressed in a letter to me dated February 2, 2001:

"The policy of the UK (United Kingdom) towards the sovereignty of shipwreck warships is that the UK retains sovereign rights and continuing ownership of its warships in accordance with the International Salvage Convention"

and that requests to visit or dive such vessels need to be made directly to the Flag State, the United Kingdom in the case of the H.M.S. FOWEY.

. . . The question in my mind is who "legally" has title and ownership of the FOWEY remains including recovered artifacts? Secondly, why is the National Park Service steadfastly withholding information and denying access to the recovered artifacts, which are in storage at its Southeast Archaeological Center? Why do its personnel resist providing "ALL" reports that were produced at taxpayer expense? Why is there not a current listing of recovered artifacts available? I have been told that a listing is currently being prepared. Some of the artifacts have been recovered some 20 years ago. What is so sensitive to necessitate a cloud of secrecy being placed over the findings and activities involving the remains of the H.M.S. FOWEY to withhold from a citizen who has valid reason and expressed a strong interest in obtaining copies of reports? Moreover, why did National Park Service personnel essentially "stonewall" on two occasions in early 2000, U.S. Senator Connie Mack who made an inquiry on behalf of his constituent for the purpose of obtaining reports, a listing of recovered artifacts and permission to view and photograph them that are in storage at the Southeast Archaeological Center?

. . . The three page letter dated March 12, 2001 that I received from the FOIA Appeals Officer was the last straw. As a consequence of this "bureaucratic evasiveness" I have been made to endure I directed the lawyer I had retained to press my request by filing suit in the Federal District Court in Miami, Florida. The complaint was filed March 30, 2001, Case No. 01-l3l1-Civ-MOORE.

. . . Although the Interior Department as part of my appeal request recently sent me several reports on the H.M.S. FOWEY project, they have not provided me with copies of "ALL" the reports that were produced by its personnel. The FOIA Officer in his letter of March 12th asserted that the Interior Department has taken the position that the listing (which I have been led to believe which is not complete) is "protected" and accordingly, it will not be provided to me. I assume that permission to view the objects stored at the Southeast Archaeological Center will not be granted.

. . . It appears to me that National Park Service personnel in its Cultural Resources Unit are behaving like the Biblical Archaeological Scholars of some years back who held for some 40 years portions of the Dead Sea Scrolls secret that they were entrusted with and thwarted efforts of other interested scholars from gaining access to view and study them. This behavior is contrary to the instruction issued by former Secretary of Interior Bruce Babbitt in a statement issued on March 4, 1999 entitled "A National Strategy for Federal Archeology." Mr. Babbitt was suggesting that Archaeological Results should be shared and that managers should facilitate the use of databases and better share research results.