Vous êtes sur la page 1sur 23

Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 1 of 23 PageID 2145

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

IN ADMIRALTY

GLOBAL MARINE EXPLORATION,
INC.,

Plaintiff, CIVIL ACTION

v. CASE NO. 6:16-CV-1742-ORL-
18-KRS
THE UNIDENTIFIED WRECK AND
(FOR FINDERS RIGHT PURPOSES)
ABANDONED SAILING VESSEL, If
any, its apparel, tackle, appurtenances
and cargo located within an area
enclosed by a line running from
28.5580020 – 80.5098840 to 28.5205370
– 80.5573060 to 28.4677990 –
80.4694050 and returning to 28.4735990
– 80.5324150

In rem, Defendant(s).
________________________________/

CLAIMANT STATE OF FLORIDA’S MOTION FOR PARTIAL
SUMMARY JUDGMENT1

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, the Claimant,

State of Florida, pursuant to the Court’s Order dated January 11, 2018 (DE 86), and

1
Florida fully supports the claims of the Republic of France in this litigation. Should France
ultimately be unsuccessful, however, Florida asserts its rights and ownership over the res in
GME’s claim without reservation as set forth more fully in this combined motion.
1
Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 2 of 23 PageID 2146

February 16, 2018 (DE 89), respectfully shows the Court that there is no genuine

dispute as to any material fact and the State of Florida is entitled to a partial summary

judgement as to Florida’s claim that the defendant res was embedded in the

sovereign submerged land of the State of Florida as defined by the Abandoned

Shipwreck Act of 1987 (ASA), 43 U.S.C. 2102(a).

Background

1. On August 4, 2015, the Florida Department of State (Department)

issued Global Marine Exploration, Inc. (GME), an 1A-31 Exploration Permit

(permit number 2015.03), which allowed GME to perform non-invasive remote

sensing and diver verification in the permitted area (the site that contains the

wreckage that is the subject matter of GME’s Claim). Exh. A.

2. The permit was amended on August 19, 2015, to allow limited test

excavation and diagnostic artifact recovery for shipwreck identification. Exh. B. The

amendment also allowed the limited use of prop wash deflectors and suction dredges

of less than 10 inches in diameter to perform the limited test excavations only. Exh.

B, ¶ A.1.e. Prior to recovering any diagnostic artifacts, GME was to notify the

Division of Historical Resources. Exh. B, ¶ A.1.c. The permit stated that artifacts

recovered under the Exploration Permit are property of the State of Florida and

would be included in the pool of artifacts considered for transfer to the Permittee

(GME) if a Recovery Permit is issued in the future for the same area or historic

2
Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 3 of 23 PageID 2147

shipwreck site. Exh. B, ¶ B.

3. GME filed a Notification of Find Report on September 15, 2015, and

another one on June 3, 2016, documenting the existence of cannon, anchor, and other

material located within the boundary of Exploration Permit #2015.03. Exh. C.

4. In its September 15, 2015, “Notification of Find Report,” GME stated

that it had found shipwreck debris within the permit area, but that “limited

information was obtained due to minimal sand removal, targets still being buried

mostly under sand, and clarity of the water (very poor visibility).” Exh. C at 3.

5. In their “Archaeological Plan to Rescue Identified Targets in Peril

during Continuing Dig and Identify Operations report,” dated June 8, 2016, GME

described how it conducted its search for artifacts in the permit area. Exh. D. GME

stated that it found several square miles of scattered objects in the permit area, and

using a hand-held proton magnetometer to pinpoint objects, they were excavated

using a prop-wash deflection system. Ex. D at 10.

6. Due to the finds reported by GME, the Florida Bureau of

Archaeological Research (BAR), Division of Historical Resources conducted a site

assessment on August 15, 2016, of the area within the boundary of Exploration

Permit #2015.03. Exh. E at 3. Dr. Ryan Duggins from BAR led a combined dive

team from the State of Florida and the National Park Service, Southeast Archeology

Center (SEAC), and performed the site assessment. Id. Using coordinates provided

3
Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 4 of 23 PageID 2148

by GME, side scan sonar imagery, and diver reconnaissance, BAR identified the

presence of a large excavation pit in the area reported to contain cultural material.

Id. This excavation pit was likely created via blowers and were outside the scope of

the limited test excavations authorized under GME’s permit. Id. at 30. A fine

sediment had settled into the depression, completely covering the cultural material

that had been identified by GME. Id.

7. GME filed a verified complaint in admiralty in rem on October 5, 2016.

Global Marine Exploration, Inc., v. The Unidentified, Wrecked and Abandoned

Sailing Vessel, 16-cv-01742 (M.D.F.L.). DE 1. In the admiralty complaint, GME

alleged to have found an unknown wrecked vessel in state waters while operating

under validly issued permits form the State of Florida, U.S. Army Corp of Engineers,

and the Florida Department of Environmental Protection. Id. at ¶ 5. GME alleges the

wrecked vessel is abandoned and its “…cargo and/or artifacts are not firmly affixed

in the submerged lands nor in coralline formations such that the use of tools of

excavation is required in order to move the bottom sediments to gain access to the

shipwreck, its cargo, or any part thereof.” Id.

8. GME stated in its complaint that it intended to turn over to the United

States Marshal of the Middle District of Florida for symbolic arrest in rem 3 cannon

balls, 3 ballast stones, and one pick head recovered from the Defendant Site. Id. at ¶

8. GME stated that it was unable to identify the vessel because it has yet to find any

4
Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 5 of 23 PageID 2149

objects in the salvage area that might be used to accurately date and identify the

wreckage. Id. at ¶ 11.

9. On October 7, 2016, Dr. Timothy Parsons, the Director of the Division

of Historical Resources for the Florida Department of State, and the State Historic

Preservation Officer of Florida, notified GME of the suspension of Exploration

Permit #2015.03 for engaging in practices prohibited by Section 267.13(1)(a),

Florida Statutes. Specifically, GME – as evidenced in the verified complaint –

removed artifacts from land owned or controlled by the state without proper

permitting authority in accordance with Chapter 1A-31.085, Florida Administrative

Code. DE 27-2. The permit issued to GME did not allow the recovery of non-

diagnostic artifacts, and required GME to notify the Division prior to the recovery

of any artifacts from the permitted area. Id. As a corrective action, the Division

requested that all artifacts removed from sovereignty submerged lands be returned

to the Division by 5:00 p.m. on Friday, October 14, 2016. Id.

10. In a letter dated October 26, 2016, the Division stated that GME had

not returned the artifacts by the designated date. As such, the Division intended to

revoke Permit #2015.03. DE 27-4.

11. On December 28, 2016, this court ordered that by 5:00 p.m. on January

31, 2017, GME was to deliver to the Florida Bureau of Archeological Research, each

artifact recovered by GME from the Defendant site in this action, including, but not

5
Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 6 of 23 PageID 2150

limited to, each of the three cannon balls, three ballast stones, and one pick head

referred to in the October 5, 2016, Complaint in this case. DE 45.

12. Florida filed the Declaration of Dr. Timothy Parsons on February 8,

2017, describing the negligent manner in which GME returned the historic artifacts

it had improperly excavated from the sea floor. DE 64-1. In his declaration, Dr.

Parsons described the manner in which GME delivered the artifacts in accordance

with this court’s order: the artifacts were shipped by GME in a printer cartridge box,

with only a crumpled paper placed inside for padding. The artifacts were in three

Ziploc-type bags. One bag had three cannon balls and another had three ballast

stones, neither had any protection to prevent them from jostling against each other

in the bags during transport. The bag containing the pick head, and actual wood from

the original pick, had ripped and residue from the pick leaked into the box. Dr.

Parsons stated that the manner in which these artifacts were delivered did not meet

any manner of professional standards and such treatment could have easily led to

damage to, or loss of, the artifacts. DE 64-1.

13. A declaration from Dr. Ryan Duggins was filed in this matter on

January 18, 2017. DE 56-1. In his declaration, Dr. Ryan Duggins stated that, due

to GME’s violation of Florida law and the terms and conditions of Permit #2015.03,

and for conducting non-permitted activities that jeopardize archeological materials,

among other reasons, GME’s permit was first suspended (on October 7, 2016) and

6
Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 7 of 23 PageID 2151

then revoked (on October 26, 2016). DE 56-1 at 4, ¶ 20. Dr. Duggins also stated

that, during the site inspection, they were able to identify hard objects corresponding

to the bronze cannon and monument locations identified by the GME at 50 cm to 40

cm below the sea floor respectively. DE. 56-1 at 3, ¶ 15. No diagnostic artifacts were

exposed on the sea floor and a dredge, airlift or prop wash deflection system would

be required to remove the sediment that settled in the excavation pit. DE 56-1 at 3,

¶ 16–17. In his professional opinion, Dr. Duggins stated that the artifacts found in

the permit site are/were embedded in the seafloor. DE 56-1 at 4, ¶ 20.

Statement of Undisputed Material Facts

14. The Florida Department of State, Division of Historical Resources,

issued the Plaintiff a permit to perform non-invasive remote sensing and diver

verification in the permitted area, well within the sovereign boundaries of the State

of Florida. Exh. A.

15. The permit was amended on August 19, 2015, to allow limited test

excavation and diagnostic artifact recovery for shipwreck identification. Exh. B.

16. Plaintiff located the Defendant res within the permitted area. DE 58 at

4.

17. When the Plaintiff located the Defendant res, it could not be readily

seen as it was buried in the seafloor under a large amount of sediment. Pritchett Dep.

7
Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 8 of 23 PageID 2152

77: 3–25 (DE 91-2 at 27); 81: 1–5 (DE 91-2 at 31); 82: 18–23 (DE 91-2 at 32), and

84: 3–16 (DE 91-2 at 34)

18. Plaintiff had to undertake a series of excavations merely to observe and

identify the objects that form the basis of its claim. Seliger Declaration (DE 57 at 4,

⁋⁋ 10–11, 17 and at 3, ⁋ 7).

19. Plaintiff excavated the Defendant res using prop wash deflectors.

Seliger Dep. 21: 18–21 (DE 93-1 at 22), and 24: 14–20 (DE 93-1 at 25); Seliger

Declaration (DE 57 at 2, ⁋ 6, and at 5, ⁋ 18).

20. Prop wash deflectors are a “tool of excavation” as set forth in the

Abandoned Shipwreck Act and the guidelines as provided by the National Park

Service. Seliger Dep. 24: 5–20 (DE 93-1 at 25); Abandoned Shipwreck Act

Guidelines, 55 Fed. Reg., 50,117 and 50,121 (Dec. 4, 1990).

21. The State of Florida conducted a site assessment of the In Rem

Defendant site during the week of August 15, 2016. Through the site assessment it

was confirmed that GME used blowers (prop wash deflectors) to excavate the site,

which created holes in the sea floor of a depth between 7–8 feet. DE 95-1 at 10.

Memorandum of Law

When reviewing a motion for summary judgment, the court must apply the

standards set forth in Rule 56, Federal Rules of Civil Procedure, which states in

part:

8
Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 9 of 23 PageID 2153

The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movement is entitled to judgment as a matter
of law.

Fed. R. Civ. P. 56(a). The moving party bears the burden of showing that

there is no genuine issue of material fact. Tipton v. Bergrohr GMBH-Siegen, 965

F.2d 994, 998 (11th Cir. 1992). An issue of fact is “material” if it is a legal element

of the claim such that the presence or absence might affect the outcome of the suit

and it is “genuine” if the record as a whole would lead the trier of fact to find for the

nonmoving party. Id., 998. If the moving party meets the burden of showing the

absence of any genuine issue of material fact when all evidence is viewed in light

most favorable to nonmoving party, the court should grant a summary judgment. See

Capsalis v. Worch, 902 F. Supp. 227, 228 (M.D. Fla. 1995). The same standards

apply to motions for partial summary judgment. See Sunbeam Television Corp. v.

Nielsen Media Research, Inc., 711, F.3d 1264, 1270 (11th Cir. 2013).

In the instant matter, the State of Florida is entitled to partial summary

judgment on the issue of ‘embeddedness’ as defined by the Abandoned Shipwreck

Act as there are no genuine issues of material fact that the Defendant res claimed by

the Plaintiff was embedded in the sovereign submerged lands of the State of Florida

when it was discovered by Plaintiff.

9
Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 10 of 23 PageID 2154

Legal Standard for Embeddedness

This court is currently considering the ownership claim of the Defendant res

by the Republic of France. DE 75. Should the court find that the Defendant res is

not a sovereign ship, and therefore abandoned by its previous owner, then the State

of Florida would be the owner of the res under the Abandoned Shipwreck Act

(ASA), 43 U.S.C 2101–2106.2 “Under the ASA, the Federal Government asserts

and transfers title of any ‘abandoned shipwreck’ to the state in whose submerged

lands the wreck is embedded.” Odyssey Marine Exploration, Inc. v. Unidentified

Shipwrecked Vessel, 657 F. 3d 1159, 1180 (11th Cir.), 43 U.S.C. 2105(a), (c). If the

court rules the Defendant res is abandoned, the question of embeddedness becomes

relevant in determining who has title to the res. See Zych v. Unidentified, Wrecked,

and Abandoned Vessel, 811 F.Supp. 1300, 1317 (N.D. Illinois, 1992).

Embeddedness under the ASA means “…firmly affixed in submerged lands

or in coralline formations such that the use of tools of excavation is required in order

2
This is a motion for partial summary judgment on the issue of ‘embeddedness’
alone, as the Court is currently considering the claim of ownership of the res by the
Republic of France. Florida supports the claim of France, however, should this
Court rule that the Defendant res has been abandoned, then the question of
embeddedness is the issue that will determine the ownership of the res between the
Plaintiff and the State of Florida. As the relevant and material facts on the issue of
embeddedness have been established, Florida files this motion for partial summary
judgment in the interests of time and judicial economy so that the rights of all of the
parties may be determined at the earliest reasonable date.

10
Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 11 of 23 PageID 2155

to move the bottom sediments to gain access to the shipwreck, its cargo, and any

part thereof.” 43 U.S.C. 2102(a). The National Park Services (NPS) in its

Abandoned Shipwreck Act Final Guidelines states that tools of excavation include,

but are not limited to, hydraulic, pneumatic, or mechanical dredges; explosives;

propeller wash deflectors; air lifts; blowtorches; induction equipment; chemicals;

and mechanical tools used to remove or displace bottom sediments or coralline

formations to gain access to shipwrecks.” Abandoned Shipwreck Act Guidelines, 55

Fed. Reg., 50,117 and 50,121 (Dec. 4, 1990) [emphasis added]. Although the

guidelines are non-binding, NPS states that the U.S. Congress intends for States

shipwreck management programs to be consistent with the ASA and these

“Guidelines.” Id. at 50,120.

Objects from shipwrecks do not need to be totally embedded to meet the

definition. The court in Zych v. Unidentified, Wreck and Abandoned Vessel, believed

to be the “Seabird,” 941 F. 2d 525, 529 (7th Cir. 1991), stated that partially buried

wrecks meet the definition of embedded under the ASA, and that “embeddedness”

serves as a proxy for historic value.

The determination of whether or not an object or artifact is embedded under

the definition of the ASA is a factual question, to be established by evidence. See

Aqua Log, Inc., v. Lost and Abandoned Pre-Cut Logs and Rafts of Logs, 103

F.Supp.3d 1369, 1378 (M.D. Ga. 2015). In Aqua Log, the State of Georgia argued

11
Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 12 of 23 PageID 2156

that the logs in dispute were embedded in river bottoms and therefore were the

property of the State. The plaintiff in Aqua Log presented the court with relevant

evidence showing no tools of excavation were needed to move bottom sediments to

gain access to the logs at issue. Id. at 1379 (citing Abandoned Shipwreck Act

Guidelines, 55 Fed. Reg. 50,117 and 50,121 (Dec. 4, 1990). The plaintiff’s affidavit

in Aqua Log stated that the representative logs would be simply removed from the

river bottom using a winch and cable since the logs had very little sand or sediment

on them. Id. at 1379. The court stated that if a winch, cable, or crane are not used to

move bottom sediments to gain access to the logs they are not tools of excavation.

Id., citing Abandoned Shipwreck Act Guidelines, 55 Fed. Reg. 50,116 and 50,121

(Dec. 4, 1990).

In the present matter, the facts clearly show that the artifacts at issue in this

case meet the definition of embedded under the ASA and its guidelines as, among

other things, it is undisputed that the Plaintiff did use tools of excavation to excavate

the objects at issue, and excavation tools were required because of the amount of

sediment that covered (and still cover) the objects making up the Defendant res.

Facts Showing the Embedded Nature of the Artifacts Claimed by GME.

As it has never been disputed that the site at issue is within the sovereign

submerged territorial land of the State of Florida, the factual analysis to determine

embeddedness under the ASA definitions and guidelines is actually quite simple:

12
Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 13 of 23 PageID 2157

first, are the objects at issue under the sediment, and second, does one need a tool of

excavation to remove them? The answer to both of these relatively simple questions

is an unqualified “yes,” confirming that the res at issue is embedded in the State of

Florida pursuant to the ASA and its guidelines.

Facts showing embeddedness from GME and its witnesses

As set forth earlier in this Motion, Robert H. “Bobby” Pritchett, III (Pritchett),

is the CEO, President, and CFO of GME. Pritchett Dep. 19: 20–21 (DE 91-1 at 20).

In a letter to the Florida Secretary of State, Pritchett described the artifacts at issue

as “significantly buried.” Pritchett Dep. 77: 3–25 (DE 91-2 at 27). In

correspondence to Florida’s State Archeologist, Mary Glowacki, Pritchett

proclaimed that all of the objects were under a “huge amount of overburden.”

Pritchett Dep. 81: 1–5 (DE 91-2 at 31). Pritchett explained in his deposition that

“huge amount of overburden” means that “there was a lot of sand” and “a large

amount of debris” “on top of all of the objects …” Pritchett Dep. 81: 13–15 (DE 91-

2 at 31). In two separate pieces of correspondence sent to French archeologist

Michel L’Hour, Pritchett proclaimed that all of the wreckage “was under five to eight

feet of sand” (Pritchett Dep. 82: 18–23 (DE 91-2 at 32)) and that, until GME could

obtain a permit to remove a large amount of sand that remained over the wreckage,

“there is nothing to see but sand.” Pritchett Dep. 84: 3–16 (DE 91-2 at 34). GME’s

Chief Operating Officer, William Seliger, also confirmed that, when he first arrived

13
Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 14 of 23 PageID 2158

and dove on the wreck site, the objects were completely covered in six to eight feet

of sand. Seliger Dep. 21: 4–13 (DE 93-1 at 22).

Facts from GME witnesses showing tools of excavation were needed to excavate the
objects at issue

It is undisputed that, when they arrived at the wreckage site, GME used

blowers, also called prop wash deflectors, to remove the sediment that was over all

of the objects. Seliger Dep. 21: 18–21 (DE 93-1 at 22); and 24: 14–20 (DE 93-1 at

25). It is also undisputed that prop wash deflectors are excavation tools and were

used by GME for that purpose to uncover the objects. Seliger Dep. 24: 14–20 (DE

93-1 at 25). Even had it been possible to use a non-mechanical device, like waving

a hand paddle, to uncover the five to eight feet of sediment to get to the objects,

Seliger testified that a hand paddle is, in fact, a tool of excavation as defined by the

ASA guidelines provided by the National Park Service. Seliger Dep. 18: 12–19: 3

(DE 93-1 at 19 and 20). Regardless, Seliger also testified that he has never used

non-mechanical hand paddles to remove sediment in such conditions and, in his

experience, is not aware of anyone who has done it. Seliger Dep. 33: 3–13 (DE 93-

1 at 34). Pritchett testified that, until GME received a recovery permit that would

allow retrieval of objects with prop wash deflectors – specifically to remove sand –

nothing more could be done at the site. Pritchett Dep. 84: 3–21 (DE at 34).

Even prior to being named as an expert witness by GME, and before he was

deposed on August 17, 2017, Seliger provided this Court with a declaration clearly
14
Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 15 of 23 PageID 2159

describing a difficult salvage operation by GME requiring multiple excavations at

the subject salvage site simply to observe and identify the artifacts. DE 57. In his

declaration, Seliger provided the following facts [all emphasis added]:

- “[T]hree test excavations were made in this area in an attempt at

identification of the magnetic anomalies.” DE 57 at 4, ⁋ 11.

- “The initial excavation uncovered the stone monument and one bronze

cannon, a second excavation was made revealing a third bronze cannon.

Id. at 3, ⁋ 7.

- “To the best of my knowledge the site has not been excavated and the

artifacts have not been seen by anyone other than GME personnel. Id. at

4, ⁋ 10.

- “[A]n ‘accurate map of the artifacts’ could [not] be produced without some

excavation of the site.” Id. at 4, ⁋ 11.

- “At the time the site was discovered excavation was required to identify

the artifacts at the site.” Id., ⁋ 17.

- An excavation tool - prop wash deflectors - were employed by GME to

remove the sediment so GME could observe and identify the artifacts. Id.

at 2, ⁋ 6, and at 5, ⁋ 18.

Facts showing embeddedness from the State of Florida and National Park Service
witnesses

Florida’s Underwater Archeology Supervisor for BAR, Ryan M. Duggins,
15
Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 16 of 23 PageID 2160

Ph.D. (Dr. Duggins) served as the Principal Investigator on the permit provided to

GME in this matter. In this role, he led a dive team on an inspection of the wreckage

site during the week of August 15, 2016, after GME had located the wreckage and

used prop wash deflectors to uncover cannon and a marble column. DE 56-1. David

W. Morgan, Ph.D. (Dr. Morgan), the current Director of the Southeast Archeological

Center (SEAC) for the National Park Service, was also part of the dive team that

inspected the site.

Even though GME had used prop wash deflectors to uncover large amounts

of sand over the objects, by the time the dive team led by Dr. Duggins inspected the

site, none of the objects were visible, and were already covered by at least 40 cm of

consolidated sediment and at least 1 meter of suspended pluff mud. DE 56 at 3, ⁋

16. Dr. Duggins could tell that prop wash deflectors had been used at the site, but

as the site remained embedded within the seafloor, he observed that the use of tools

of excavation would be necessary to recover any of the artifacts. Id., ⁋ 18.

Dr. Morgan was deposed by GME’s counsel on October 31, 2017.3 He

testified that, based on his personal observations and career experience, the artifacts

he encountered in the arrest area were still buried and embedded beneath the

3
Dr. Duggins was also scheduled to be deposed that day, but his deposition
was cancelled by GME just prior to the scheduled time it was to begin and was never
rescheduled.

16
Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 17 of 23 PageID 2161

seafloor. Morgan Dep. 33: 16–21 (DE 90-2 at 3).

Expert testimony reveals the artifacts are embedded as defined by the ASA and
National Park Service guidelines and would require tools of excavation to remove4

On July 19, 2017, pursuant to this court’s scheduling order (DE 71), the State

of Florida disclosed Dr. Duggins and Dr. Morgan as expert witnesses and submitted

their reports and curriculum vitae to GME.

Dr. David Morgan

Dr. Morgan has been a practicing, professional archaeologist for 26 years. He

received his doctorate in anthropology from Tulane University in 2003, with a

specialization in archeology, and a master’s degree in anthropology from the

University of Alabama in 1994, also with a specialization in archeology. Exh. F.

His field experience, academic publications, presentations, etc., are voluminous and

contained in full in his attached curriculum vitae. Exh. G. Although the projects he

has been involved in throughout his extensive career include archeological sites on

both land and sea, he testified that, in the last ten years, he has taken part in

approximately 200 dives, all related to his work as an archeologist. Dr. Morgan

Depo. 9: 2–8 (DE 90-1 at 9).

In response to questioning from GME’s counsel, Dr. Morgan stated that

4
Plaintiff has proffered expert witness testimony that the State of Florida has
moved to strike in its entirety as unqualified and unreliable as discussed more fully
in Florida’s Amended Daubert Motion to Exclude Expert Testimony of Plaintiff’s
Witnesses. DE 96.
17
Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 18 of 23 PageID 2162

underwater archaeological features, like those at issue in this action, have stayed

roughly in the same location over the centuries. Morgan Dep. 26: 12–20 (DE 90-1

at 26). The location of these archaeological features are generally not significantly

impacted by the centuries of storms that have passed through the area, otherwise

these historic shipwrecks would have been totally lost. Morgan Dep. 26: 18 – 25 and

27: 1 – 2 (DE 90-1 at 26–27).

Based on his personal observations and career experience, Dr. Morgan stated

the artifacts he encountered in the arrest area were still buried and embedded beneath

the seafloor. Morgan Dep. 33: 16–21 (DE 90-2 at 3). In his experience as an

underwater archaeologist, a terrestrial archaeologist, and a diver of 32 years he has

never seen a historic shipwreck completely exposed sitting on the seafloor like

something out of the Pirates of the Caribbean. Morgan Dep. 36: 2–37: 2 (DE 90-2 at

6–7).

Relying on the Abandoned Shipwreck Act, National Park Service Guidelines,

and the Archaeological Resources Protection Act of 1979, Dr. Morgan defined

embeddedness as either being firmly affixed within a coralline structure or within

the submerged lands of the state and requiring mechanical means to remove

sediment to access the artifact. Morgan Dep. 37: 17–38: 15 (DE 90-2 at 7–8) and

39: 22–40: 3 (DE 90-2 at 9–10). Based on that definition of embeddedness, Dr.

Morgan believes the shipwreck in this action is clearly embedded. First, the

18
Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 19 of 23 PageID 2163

shipwreck was found within the submerged lands of the state of Florida as defined

by the Abandoned Shipwreck Act. Morgan Dep. 40: 4–9 (DE 90-2 at 10). Secondly,

based on his personal observation at the wreckage site, even after GME had already

blasted holes in the sea floor with blowers, there was no practical and feasible way

to remove or expose or document archaeological materials without using mechanical

means to remove the sediment. Morgan Dep. 40: 10–15 (DE 90-2 at 10).

The National Park Service Guidelines defines a shipwreck as being “firmly

affixed,” if tools of excavation are required to move the bottom sediments in order

to access the shipwreck, its cargo, and any part thereof. Morgan Dep. 46: 9–16 (DE

90-2 at 16). Even the use of a hand or ping-pong paddles, if it is being used to

remove sediment to gain access to the shipwreck or any part of it, would be

considered a tool of excavation under that definition. Morgan Dep. 46: 9–24 (DE

90-2 at 16). GME, of course, used prop wash deflectors as tools of excavation to

remove the bottom sediments of the embedded shipwreck, and Dr. Morgan testified

“that to me is exactly the – what I observed in August, was a shipwreck embedded

in bottom sediments.” Morgan Dep. 47: 16–21 (DE 90-2 at 17).

Dr. Ryan Duggins

Dr. Duggins currently serves as the Underwater Archeology Supervisor for

the BAR, Division of Historical Resources, Florida Department of State. Dr.

Duggins holds an undergraduate degree in Anthropology from the University of

19
Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 20 of 23 PageID 2164

Georgia, a Master’s degree in Maritime Archaeology and History from Bristol

University, and a Ph.D. in Anthropology from Florida State University. As set forth

more fully in his curriculum vitae (DE 95-1 at 12–14), Dr. Duggins has extensive

field experience in both maritime and terrestrial archaeology and has taught courses

in Underwater Archaeology and Cultural Anthropology at the college level. He has

also presented professionally on a number of occasions, the most recent in 2016 at

the Southeastern Archaeological Conference in Athens, Georgia, where he presented

on the topic of “Manasota Key Offshore: A submerged burial site in the Gulf of

Mexico.” Among other professional presentations, he has also presented on

submerged landscape reconstruction at the 2012 Southeastern Archaeological

Conference in Baton Rouge, Louisiana. DE 95-1 at 14.

Through his on-site investigation with his dive team, Dr. Duggins confirmed

that GME used blowers which created holes in the sea floor of a depth between 7–8

feet, and that, due to “natural oceanic processes, fine grained organic sediment had

already begun to fill in the lower extent of the depression (the bottom meter) while

it remains in a state of suspension towards the top of the depression.” DE 95-1 at

10. In fact, Dr. Duggins stated in his report that “BAR archaeologists did not

encounter any of the visibly diagnostic cultural material at the site because it was

covered with sediment.” 95-1 at 11. The site was so covered with sediment, that

Dr. Duggins believes:

20
Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 21 of 23 PageID 2165

[T]here is little threat of accidental discovery of this material by
avocational divers and/or artifact hunters. To remove and displace the
sediment that settled in the blower hole and is covering the artifacts
would require a dredge, airlift, or prop wash deflection system. These
are not recreational systems. Therefore, the threat of looting the site
would be associated with individuals with the experience and
equipment capable of displacing large amounts of marine sediment.

DE 95-1 at 10. Dr. Duggins finishes his report by stating “[a]ny future

archaeological investigations at this site will require the use of tools of excavation

(either an air lift or dredge) to displace the sediment that currently covers the

embedded cultural material. DE 95-1 at 11.

CONCLUSION

Pritchett, GME’s CEO, President and CFO candidly admitted at his deposition

that Florida and the federal government are the authorities on the definition of

embeddedness under the ASA:

Q: What is all the information that you have to support your
definition of embeddedness?

A: To support, I’m getting the information of embeddedness
from the State of Florida and from the federal government. That’s
where I’m getting what the definition of embeddedness is. I’m not
getting the definition of embeddedness anywhere else but from the
State of Florida or permits and the federal government, which is in
relationship to the permits.

Pritchett Dep. 89: 2–10 (DE 91-2 at 39).

Experts from the State of Florida and the National Park Service – the federal

agency that put together the guidelines for implementing the ASA (Dr. Morgan Dep.

21
Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 22 of 23 PageID 2166

46: 3–6 (DE 90-2 at 16)) – have personally observed the site of GME’s excavation

and rendered opinions firmly supporting the State of Florida’s claim. The facts of

this case, as stated by eye witness observers from GME, the State of Florida, and the

National Park service are clear, uncontroverted, consistent and bolstered by expert

testimony. The res claimed by GME in their complaint is embedded in the sovereign

submerged land of the State of Florida such that it can only be removed by a tool, or

tools, of excavation. There are no genuine issues or dispute of the material facts

involving the issue of embeddedness. Therefore, pursuant to Rule 56, Federal Rules

of Civil Procedure, and the ASA, this Court should grant Florida’s Partial Motion

for Summary Judgment. See Zych, 941 F. 2d 525, 529.

The State of Florida respectfully requests that this Court grant its Motion for

Partial Summary Judgment, deny GME’s claim, and grant any such further relief as

this Court deems reasonable, necessary and just.

[Signature block on next page.]

22
Case 6:16-cv-01742-KRS Document 97 Filed 02/23/18 Page 23 of 23 PageID 2167

Respectfully submitted this 23rd day of February, 2018.

/s/ David A. Fugett
DAVID A. FUGETT (FBN 835935)
General Counsel
david.fugett@dos.myflorida.com

CARLOS A. REY (FBN 0011648)
Assistant General Counsel
carlos.rey@dos.myflorida.com
FLORIDA DEPARTMENT OF STATE
R.A. Gray Building, Suite 100
500 South Bronough Street
Tallahassee, Florida 32399-0250
Phone: (850) 245-6536
Fax: (850) 245-6127
Counsel for the Florida Department of State

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, pursuant to M.D. Fla. Loc. R. 5.1(F), each party
on whom this document is to be served is represented by an attorney who will be
served through this Court’s CM/ECF system upon filing on this 23rd day of
February, 2018.

/s/ David A. Fugett
ATTORNEY

23