Pollution Resolution

When jurors requested a calculator, the lawyers knew something was afoot.

But the state’s attorneys remained tense. They had, after all, chosen to risk a jury trial on the kind of question that normally gets thrashed out in pretrial settlements: What is the public really owed for losing its use of 15 miles of famed Southern California beaches for five weeks after the massive 1990 American Trader oil spill?

By going to trial, the state drew a line in the sand. Its attorneys trusted that an Orange County jury would weather brain-numbing economic testimony and a spirited courtroom challenge from the tanker’s owner to conclude that the public deserves millions of dollars in damages.

In the end, the risk paid off. Jurors last Monday found that Attransco, owner of the American Trader tanker, should pay the public $18.1 million in damages and fines, two-thirds of it for lost recreational use of beaches and harbors. They even put a price tag on a day at the beach--$13.19.

The verdict may mark the first time nationally that a jury has awarded damages for lost beach days.

The fact that these 12 men and women would put such value on their beaches delighted the state’s chief lawyers, Deputy Atty. Gen. Sylvia Cano Hale and co-counsel Michael Leslie.

“Think, if we didn’t have those beaches, if all those beaches were closed,” Hale said, recalling how during jury selection, people described how they loved walking or in-line skating along the beach, or simply going to the beach to enjoy the quiet.

The verdict, applauded by several government and environmental attorneys across the country, could prove one of the biggest legacies of the American Trader spill, the worst in 20 years in Southern California.

In time, the verdict money could pay for numerous beach improvements, from new restrooms in Huntington Beach to new lighting at the Newport Beach boardwalk to better walking trails at the Bolsa Chica wetlands. Those, coupled with wildlife restoration plans, will be the most tangible legacies of the spill.

But the verdict itself could be a legacy, said six lawyers from Alaska to Washington, D.C., who could not recollect another case in which a jury awarded damages for lost recreational use, when the public was unable to use beaches or harbors.

“This is probably the first time someone has tried and taken to judgment beach closures,” said Robert Klotz, senior attorney with the environmental enforcement section of the U.S. Department of Justice. “This really is an important case.”

The fact that a jury awarded damages for lost recreational use could give government attorneys more clout in future settlement talks in other oil spill cases, some lawyers said.

“This eliminates an area of uncertainty in previous settlements of spills,” said Leslie, a partner at Hedges & Caldwell in Los Angeles.

David E.R. Woolley, attorney for Attransco, is troubled by the verdict, and not just the multimillion-dollar award. He criticized the notion of awarding damages using what he terms “a broad hypothetical theory,” such as estimating how many people did not use the beach because of the spill and then putting a value on their beach enjoyment.

“The law likes to deal with specific people, specific injuries,” he said.

Attransco has not decided yet whether to appeal, he said.

The spill ranks as Orange County’s worst environmental crisis in memory. It began Feb. 7, 1990, when the American Trader ran over its own anchor while attempting to moor 1.3 miles off Huntington Beach.

The Alaskan crude it carried spewed into the ocean, polluting 15 miles of coastline and killing at least 1,000 birds. Televised news reports nationwide showed blackened sand, dead fish and oil-soaked rescue workers toiling on some of America’s most fabled surfing beaches.

The American Trader oil spill already has spurred stiffer laws for how oil spills are treated.

Coming after the mammoth 1989 Exxon Valdez spill in Alaska, it helped speed passage of a state oil spill act and creation of the state Office of Oil Spill Prevention and Response. In Washington, the spate of oil spills led to passage of the 1990 Oil Pollution Act, which required the phase-in of double-hulled tankers in U.S. waters, increased spillers’ liability and tightened sanctions.

In California, the number of marine oil spills dropped by 50% from 1992 to 1996, which officials credit in part to the state and federal acts.

The Orange County spill helped catalyze the founding of a Wetlands and Wildlife Care Center in Huntington Beach, due to open its doors in coming weeks to care for injured wildlife.

But the spill also created a long and tangled civil suit, filed in January 1991 by the state, Orange County, Newport Beach and Huntington Beach, against several companies connected with the spill.

The suit dragged through the courts for nearly seven years, yielding a mountain of 100,000 documents and creating a labyrinth of motions and counter-motions.

Settlements of $3.89 million with BP America and $3 million with a petroleum industry fund were announced in 1995. A $4.15-million settlement with Golden West Refining Co., the offshore terminal operator, was reached a year later.

California’s policy is to settle as speedily as possible in oil spill cases so that money can swiftly be channeled into restoring wildlife, officials said.

But when Attransco did not settle, the state chose to go to trial on the issue of lost beach days and water-code penalties.

“It was a pretty good-sized risk because this had never been tried in California. A jury had never been asked to set a value on a beach day,” said Pierre du Vair, resource economist with the state oil spill office.

The prolonged case helped delay restoration. In fact, the BP America settlement money, earmarked primarily for brown pelican roosting spots, a fish hatchery and other wildlife restoration, has remained unspent.

“The net result has been that the environment has not been restored and the public has not been compensated going on eight years,” said du Vair, who blamed Attransco’s legal motions for helping delay the settlement payment.

Woolley countered that Attransco had serious concerns about the earlier settlements, including whether the industry fund should have paid much of the costs for his client.

In the verdict’s wake, officials suddenly face the task of deciding how to spend the money. Years-old lists are being pulled from file drawers. A coalition of local, county and state governments has identified about $25 million in possible beach-related projects. The money is expected to be split according to each state and local government’s number of miles of soiled beach multiplied by the number of days closed.

But while state and local officials admit that some hard choices lie ahead, they remain jubilant over their victory.

For Hale and Leslie in particular, the grueling work now seems worthwhile--the legal maneuvering, the frequent trips to the beaches, the experts’ repeated quizzing of lifeguards and parking attendants, the counting of beach-goers, the complex calculations, all aimed at assessing the worth of a beach day.

Hale has spent seven years and 10 months on the case, virtually full time. Her son, 5 years old at the time of the spill, is 13.

Leslie has been on the case since his elder daughter was 3. Now she is in second grade. Last week, her classmates sent her father a pile of congratulatory cards with drawings of people on the beach.

“Everybody hopes there’s never another oil spill, anywhere. But history has shown every single year, including this year, there are oil spills,” Leslie said.

This case, he said, could help governments resolve oil spill cases earlier and spend less money doing it.

“No one wants to take the money to litigate something for seven years,” he said.

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LEGACY LIST

Nearly eight years after the massive Huntington Beach oil spill, millions of dollars’ worth of long-planned projects may finally begin after an $18.1-million verdict against the owner of a leaking tanker. Those projects could be the legacy of the ecological disaster.

The Dec. 8 verdict in a long-running government lawsuit produced $12.8 million in damages earmarked mainly for coastal recreation projects and $5.3 million in fines to fund water projects. Millions of dollars more from a related 1995 settlement--delayed by legal entanglements--could soon be pumped into wildlife restoration.

Before taking the money for granted, however, officials accustomed to this case’s drawn out legal machinations are asking whether tanker owner Attransco will appeal the verdict.

RECREATIONAL USE

The government plaintiffs want to use the damages awarded for lost recreational use for possible beach-related projects:

* Huntington Beach: New restrooms, improved bicycle and pedestrian trails, pier improvements, walls to prevent sand erosion.

* Newport Beach: New lighting along the boardwalk, new lifeguard towers, pier improvements.

* Orange County: Sunset Harbor improvements, Newport Beach redevelopment planning, sand replenishment.

* State Parks and Recreation: Improvements at Huntington State Beach, Bolsa Chica State Beach and Crystal Cove State Park. Beach shade shelters, picnic areas, outside campfire centers, offshore projects such as artificial reefs to enhance fishing and surfing.

* State Fish and Game, Lands Commission: Path improvements and signs at Bolsa Chica and Upper Newport Bay ecological preserves. Fish-cleaning facilities at local piers. Educational programs.

WATER

Money is to be split among the regional and state water boards and the state Department of Fish and Game. Funds could go toward:

* A state fund used to clean up water pollution problems in which polluters are unknown.

* A major 1998 monitoring project to test ocean health off Southern California, such as sampling fish tissue and studying sediment.

* Removing sediment in Newport Bay to improve water circulation and quality. Possibly starting a bay dredging endowment fund.

WILDLIFE

Most of the $4.89 million from a 1995 settlement with BP America was slated for several restoration projects. Stalled by legal actions, that money should soon be available:

* Bird roost restoration: Creating permanent floating roosts for pelicans and other birds along the Southern California coast, where roosting sites are in short supply. Improving the jetty at North Island, San Diego, to restore day and night roosting habitats for brown pelicans. Trapping predators such as rats that feed on brown pelican eggs.

* Fish restoration: Helping fund a fish hatchery program to raise white sea bass to replace those killed in the spill.

* Ocean monitoring: Funding ocean pollution mitigation and monitoring projects.

The public is encouraged to make suggestions for spending the verdict money by contacting state agencies and Orange County, Newport Beach and Huntington Beach governments.

Source: State and local agencies; Researched by Deborah Schoch/Los Angeles Times