Plaintiffs wonder when '89 oil spill case will end

Group urges state to follow decision on 38 pesticides

Posted: Friday, January 30, 2004

Among 38 pesticides banned last week by a federal court judge in Seattle for use near salmon-bearing streams in Washington, Oregon and California are some used here in Alaska where they pose the same dangers to salmon as they do in the Lower 48, according to a spokesperson for Alaska Community Action on Toxics.

Ruling on a case brought by fishing and conservation groups, U.S. District Judge John Coughenour ordered the U.S. Environmental Protection Agency to establish temporary buffer zones along salmon-bearing streams for the common pesticides while it creates permanent environmental regulations, according to a press release from Alaska Community Action on Toxics.

"This is a landmark decision that finally gives salmon relief from pesticides after a decade of agency inaction," said Patti Goldman, the attorney representing the plaintiffs. "The court has blocked the use of the most harmful pesticides along salmon streams until the government has ensured that salmon will be protected."

Coughenour ruled that there was "reasonable scientific certainty" that buffer zones of 20 yards for ground applications and 100 yards for aerial spraying would help protect salmon from the effects of contact with pesticides.

The ruling also requires retailers in cities of more than 50,000 in the three states to post a salmon hazard warning for seven of the 38 pesticides.

They include the following: 2,4-D, Carbaryl, Diazinon, Diuron, Malathion, Triclopyr BEE, and Trifluralin. The warning would notify consumers that the pesticides "may harm salmon or steelhead" and that "use of this product in urban areas can pollute salmon streams."

"Alaska's Department of Envi-ronmental Conservation should act responsibly and follow the landmark Pacific Northwest ruling," said Michelle Wilson, program coordinator with Alaska Com-munity Action on Toxics.

"Alaska has a reputation for pristine wilderness, along with fish and wildlife that are free from chemicals," she said.

Regulations approved in Novem-ber by DEC require only a 35-foot buffer near streams for aerial spraying for forestry practices, with no consideration of dangers to salmon.

"The Washington court order puts salmon health and clean water first," said Clay Frick, a commercial fisher from Port Alexander, in the press release. "We are spending millions of dollars to promote our ailing salmon industry. Selling our fish as coming from a clean environment is key to our promotion. Allowing thousands of acres to be sprayed with pesticides is counterproductive to the marketing of our fish."

Frick called the DEC decision "short-sighted."

In an interview Thursday, Wilson said there are 5,500 registered pesticides in use in Alaska. Among the common ones are Carbaryl, which is sold in stores in the product Sevin. It is used to control spruce bark beetles.

Others include Lindane, Wilson said, as well as 2,4-D, which is found in Ortho's Weed-B-Gon, available in many stores.

Wilson said salmon in Alaska have not been listed as endangered as they have been in some places in Washington, Oregon and Califor-nia.

Nevertheless, she believes Alaskans should be educated by store warnings and other methods about the dangers of pesticide use. Alaskans, she said, consume more fish than the national average.

"We feel Alaska should have these warning signs," she said.

A bill introduced last session by Sen. Johnny Ellis, D-Anchorage, would ban aerial spraying except for public health emergencies. Senate Bill 233 has yet to receive a hearing in the Senate Health, Education and Social Services Committee.

Two other bills, SB 27, by Ellis, and House Bill 314, introduced by Rep. Sharon Cissna, D-Anchorage, would require improved notification of commercial pesticide use, a statewide tracking system and registration and licensing fees.

CREDIT:Photo by M. Scott Moon

CAPTION:Roland Maw is pictured at United Cook Inlet Drift Association's office Thursday. "Every time we see a tanker out there we have to relive that whole thing," Maw, a commercial fisher and UCIDA's executive director, said of the Exxon Valdez oil spill.

BYLINE1:By RACHEL D'ORO

BYLINE2:Associated Press Writer

ANCHORAGE -- Roland Maw might be excused for being a bit skeptical about a federal judge's order that Exxon Mobil Corp. pay nearly $7 billion in punitive damages and interest for the 1989 Exxon Valdez oil spill.

Maw, a fisher whose livelihood was hurt by the spill, and thousands of other Alaskans have waited so long for resolution that this week's ruling seems like just another chapter in a convoluted case, particularly with Exxon planning to appeal.

Plaintiffs, like legal experts, said Thursday that it's long past time to make some real progress although no one expects that to happen soon.

''The mood among fishermen is let's get this thing to the U.S. Supreme Court and get it settled. People need to have some sense of closure,'' said Maw, executive director of the United Cook Inlet Drift Association, which represents 550 salmon fishing outfits.

In the ruling issued Wednesday, U.S. District Judge Russel Holland ordered Exxon to pay $4.5 billion in punitive damages to 32,000 fishers, Alaska Natives and others affected by the nearly 11 million gallon spill in Prince William Sound. The judge also imposed interest estimated at about $2.25 billion.

Exxon already has spent $3.2 billion on cleanup, settlements and other fees and penalties.

Wednesday's order is the latest ruling in a case that's bounced between the federal court and the 9th U.S. Circuit Court of Appeals since Exxon appealed a $5 billion verdict delivered by a federal jury in 1994. The appellate court, citing the original verdict as excessive, has twice sent the case back to Holland, most recently in August after the U.S. Supreme Court found that a $145 million punitive damage award against State Farm Insurance was excessive.

Holland's resulting order sparked hope and frustration among plaintiffs and incredulity among lawyers who specialize in punitive damages litigation.

Among plaintiffs closely watching the case is Gary Kompkoff, chief of the Native village of Tatitlek.

The village is about seven miles from Bligh Reef, where the Exxon Valdez ran aground March 24, 1989. Plaintiffs argue that Exxon knew that tanker Capt. Joe Hazelwood was a relapsed alcoholic but still allowed him to take charge of the vessel.

The crude oil spill contaminated more than 1,200 miles of shoreline and killed thousands of seabirds and marine populations. Kompkoff said that robbed scores of Alaska Natives of critical food sources such as herring, sea lions and ducks necessary to maintain their subsistence lifestyle.

Subsistence harvest levels have rebounded, but Kompkoff and others are traveling farther for similar catches.

''People have to understand the importance of our subsistence lifestyle, how devastating it was to see so many resources damaged and destroyed,'' Kompkoff said. ''After 15 years, it's time for Exxon to own up to the damages. It's time that they pay. So I admire Judge Holland for sticking to his guns and sticking to his beliefs.''

Many in legal circles, however, criticized Holland, saying he blatantly ignored directives made clear by the higher courts. They were more surprised by the amount of the ruling than the delay in resolving the case -- uncommon but not unheard of in matters of this magnitude.

''It's preposterous. The judge is obviously thumbing his nose at the Court of Appeals,'' said Andrew Frey, a New York attorney who filed a friend-of-the-court brief in the State Farm case. Frey said the Supreme Court's action in that case is the latest to rein in huge punitive damage awards.

''It's become harder to justify these large awards,'' Frey said. ''I can't imagine that the 9th Circuit will let this stand. I wouldn't be surprised if the 9th decides the amount itself. This ruling doesn't count for anything. It's just one man's opinion.''

Tina Imre, a Los Angeles appellate lawyer, said she could see the case winding up before the U.S. Supreme Court.

''The question is, how much punishment is enough when someone is negligent, as in this case. The bottom line is, do they deserve that much punishment?'' Imre said. ''We haven't heard the end of this.''

But Ed Susolik, a Santa Ana, Calif., plaintiffs attorney in punitive damages cases, said Holland's ruling was ''absolutely appropriate'' in light of the State Farm decision.

''What the U.S. Supreme Court said is that someone like Judge Holland is supposed to review the record and evaluate how reprehensible the defendant's conduct was,'' Susolik said.

''In this case, Judge Holland did that and found that Exxon exhibited a reckless disregard for the health and safety of others and that the plaintiff class of fishermen and others had financial vulnerability. Exxon is in a complete position of power over them.''

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