A federal judge, in a ruling believed to be without precedent, has declared that state and federal governments are protectors of the nation's migratory waterfowl and may sue polluters for environmental disasters that harm the birds.
The ruling by a district court judge in Norfolk came in a case growing out of the worst oil spill in Cheasapeake Bay history -- a 1976 accident that killed 30,000 waterbirds.
A Maryland company whose sinking oil barge was blamed for the deaths argued that it could not be sued because no one owned the dead birds.
But U.S. District Judge J. Calvitt Clarke Jr., in a ruling that was hailed by environmental groups, held that ownership is irrelevant. While "no individual citizen" could sue over the dead ducks, geese and swan, Clarke said the "the state certainly has a sovereign interest in preserving wildlife resources" and could collect damages over their deaths.
The judge refused to dismiss a $900,000 lawsuit filed by the state of Virginia and the Justice Department against Steuart Transportation Co. of Piney Point, owner of the barge that sank Feb. 2, 1976, causing the huge oil slick in the bay. Since Clarke's ruling last week, lawyers for Steuart have offered to settle the case out of court, and offer which they said is being considered by the state and federal lawyers.
Terms of the proposed offer were not disclosed.
The judge's ruling, which became known outside Norfolk this week, was winning praise yesterday from many environmental groups.
Guy Hodge, research director for the U.S. Humane Society, predicted the ruling would have "multiple ramifications." It should "encourage dischargers in future spills" to help with rescue efforts of endangered wildlife, said Hodge, who directed bird rescue operations at the bay spill four years ago.
Timothy Hayes of the Virginia attorney general's staff, said the finding "broke new ground" by including recognition that the state could win damages for harm to migratory waterfowl regulated by the federal government.
Previous rulings, Hayes said, limited damages to harm against stationary objects such as beaches, wetlands, and to shellfish, Hayes said.
Justice Department attorney Allen van Emmerick said he knew of "no similar ruling that entitled the U.S. to recover money for the value of the birds." He said the judge's action means that the federal government's authority "doesn't depend on statutes," that its public trust "exists in the common law."
Van Emmerick said the ruling is important because "the individual citizen doesn't have the right to sue" polluters, so if "no one can, polluters can kill with impunity."
Arthur W. Sherwood, director of the Chesapeake Bay Foundation Inc., called Clarke's ruling "very sound doctrine, something that has been in the wind for some time. It's good legal thinking."
Virginia's Hayes said, "I hope we can reach a settlement, but if not, we'll be going to trial."
The bill occurred during a severe storm, as a barge owned by Steuart was being towed from the Amoco refinery at Yorktown, Va., to Baltimore. The barge went aground and sank in six-foot waves and 80-mile-an-hour winds just south of the mouth of the Potomac River between Smiths Point and Tangier Island.
The Coast Guard and Environmental Protection Agency theorized that the barge immediately sank in the 107-foot deep water and began leaking 250,000 gallons of No. 6 oil it was carrying. A Coast Guard investigation attributed the spill to improperly bolted hatches on the barge.
The tar-like oil stained 20 miles of shoreline, threatened oyster and clam beds and killed, by actual count, 10,000 birds. The total was tripled on the theory that many of the victims were never recovered.
The Coast Guard's part of the cleanup was $300,000 and Steuart paid a fine of $123,000 based on the barge's weight, plus the maximum $5,000 fine under the federal water pollution law.
The Humane Society Hodge, one of the first volunteers to arrive at the scene, said yesterday he "vividly recalls" horned grebes, old squaw ducks, whistling swans, canvasbacks, redhead ducks and other protected species covered with "gunk" and struggling for survival.
Most of the 200 birds that were rescued eventually died, Hodge said. Rehabilitation procedures were not well developed and the solvent -- "made by a major oil company" -- used to strip the oil from the feathers was flammable and gave off fumes that produced fatal reactins in some of the waterfowl, according to Hodge.