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1.9.98
Oil-spill fines won't be paid to lobstermen
By GERALD M. CARBONE
Journal-Bulletin Staff Writer
PROVIDENCE
A state judge says he cannot include their damages in criminal penalties assessed against Eklof Marine for the 1996 North Cape oil spill, but civil remedies are available.
PROVIDENCE -- Bruce MacLeod has been hauling lobster pots in Rhode Island waters for 30 years, and he has never seen lobsters as scarce as they are now. MacLeod's pots are so consistently empty that he has fallen three payments behind on his boat, the Blue Thunder, and he made his last house payment by credit card.
MacLeod blames the lack of lobsters on the catastrophic oil spill of Jan. 19, 1996, when Eklof Marine Corp. ignored storm warnings and sent one of its tugs towing a barge loaded with diesel fuel into near-hurricane force winds. The tug and barge ran aground off Moonstone Beach, spilling 828,000 gallons of toxic diesel fuel, and killing more than 10 million lobsters.
So MacLeod sat in Superior Court yesterday hoping that Presiding Justice Joseph F. Rodgers Jr. would reject a plea bargain that Eklof struck with the state, because that agreement does not require Eklof to pay lobstermen for their losses.
However, Rodgers ruled that it would be illegal and impractical for him to issue a criminal sentence that requires Eklof to reimburse everyone who was adversely affected by the spill. Rodgers's ruling set the stage for all criminal cases filed against Eklof to be settled today in both state and federal courts, nearly two years to the day of the disastrous North Cape spill.
U.S. District Court Judge Mary M. Lisi will decide whether the precedent-setting agreement is acceptable at 10 a.m. today, and Rodgers will rule for the state at 2 p.m. If, as expected, both judges approve the agreement, their rulings will close criminal proceedings against Eklof.
Three key employees of Eklof Marine Corp. have entered guilty pleas to acts of negligence leading to the North Cape oil spill, including company president Douglas Eklof, who pleaded guilty in state and federal courts on behalf of his three shipping companies.
To settle the criminal cases, Eklof has agreed to pay a state-record $9.5 million in compensation and penalties to the federal and state governments. Eklof has agreed to split a $7 million fine between the two governments, to donate $1.5 million to The Nature Conservancy, and to spend $1 million on safety improvements for its fleet.
MacLeod and other members of the Rhode Island Lobstermen's Association tried yesterday to block the plea agreement in hopes that a new agreement would require Eklof to set aside $8 million for people who lost money because of the spill.
Lawyer Thomas F. Holt Jr., representing the lobstermen, faced off against seven lawyers who supported the plea agreement -- five representing Eklof, and two, including Atty. Gen. Jeffrey B. Pine, representing the state.
"I'm here before you today asking the court to do the hard thing," said Holt, who was sandwiched at a table between Pine and Eklof's lawyers. "As we know from life's experiences, many times the hard thing is the right thing."
Holt argued that the court should require Eklof to set aside $8 million so spill victims would have immediate relief from financial problems.
John "Terry" MacFadyen, representing Eklof, argued that lobstermen "have no right to court-ordered restitution as part of a criminal proceeding." For example, MacFadyen said, courts can demand that an arsonist pay a mill owner for burning a building, but they cannot demand that the arsonist pay lost wages to the mill workers.
The only parties with a right to court-ordered restitution in the criminal phase of the oil spill case are the state and federal governments as "the owner, so to speak, of all free-swimming lobsters," MacFadyen said.
"It's very hard for me to accept this plea without the retribution of lobstermen and others affected," Rodgers said. But for the court to determine who qualifies for payments and how much each party should get "would be impractical, impossible, and inappropriate," Rodgers said.
The plea agreement does not preclude lobstermen and others affected by the spill from filing civil claims against Eklof. Under federal law, aggrieved parties must first file a claim with Eklof. If they can't reach an agreement with Eklof, then the parties can apply to the federal Oil Spill Liability Fund for reimbursement.
"The state is a winner," Pine said. "I represent the entire state and each person in the state who cares about natural resources and our beaches and our coastline; we are all a winner on this case." And lobstermen don't lose anything under the proposed agreement, Pine said, because they can still pursue civil claims against Eklof.
Lobstermen cannot share in the $3.5 million that the state stands to win through the plea agreement; by state law, that money must be deposited into an oil spill prevention and cleanup fund.
Eklof has received 1,442 claims from businesses and fishermen. The firm has settled 463 of the claims; another 262 claimants have received partial payments pending determination of long-term economic impacts on fish and lobster stocks.
Of the remaining claims, 107 have been withdrawn, and 610 are pending. More than half of those claimants have not yet submitted documentation of their claims, according to a company spokesman.
So far, Eklof has spent $11.2 cleaning up the spill; $3.6 million reimbursing fishermen; and $2.1 million studying the effect of the spill. In addition, the firm has agreed to pay the $9.5 million outlined in the plea bargain.
But MacLeod, captain of the Blue Thunder, and some other lobstermen have seen none of that money. MacLeod said that Eklof denied his claim for $25,000, and he hasn't got time to wait for the Oil Spill Liability Fund to process his case.
"At this rate, there's some of us who won't make it until the spring run," MacLeod said.
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