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CLAIM SUMMARY / DETERMINATION 

Claim Number: 917007-0002 

Claimant: International Bird Rescue 

Type of Claimant: OSRO

Type of Claim: Removal Costs 

Claim Manager: 

Amount Requested: $124,234.111

Action Taken: Denied

EXECUTIVE SUMMARY: 

On January 16, 2015 at approximately 0900 hours, the State of California Department of Fish 

and Wildlife’s Office of Spill Prevention and Response (OSPR), in its capacity as the State On 

Scene Coordinator (SOSC), was notified by East Bay Regional Park’s (EBRP) Supervisor 

of a wildlife incident caused by an unknown substance found along Hayward Shoreline 

Park in Hayward, California.2 The oil-like substance washed in via the San Francisco Bay, a 

navigable waterway of the United States. The SOSC and Claimant responded to the Hayward

incident location during the morning hours, recovering a large amount of oiled birds by an 

unknown oil-like substance. Emergency samples were taken and sent for quick analysis.3 

At approximately 12:30 hours, the SOSC received notification via National Response Center 

(NRC) report # 1105833 that was made by a member of Sector San Francisco Bay.

4 The SOSC 

arranged an overflight following the reporting of an additional wildlife event in the San Leandro 

area location. The SOSC coordinated with the Federal On Scene Coordinator (FOSC). Lab 

results ultimately revealed the product to be palm oil5 and no Responsible Party (RP) was 

determined.

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International Bird Rescue, (“IBR” or Claimant) became involved when EBRP personnel 

contacted the IBR hospital advising that they were bringing sixty-nine (69) contaminated animals 

to their facility for care and rehabilitation.7 The NPFC has thoroughly reviewed all 

documentation obtained and submitted with the claim, analyzed the applicable law and 

regulations, and after careful consideration has determined that the claim is denied on the basis 

that the Claimant failed to meet its burden in supporting the costs claimed. 

 

1 The Claimant amended its sum certain for a third time via an OSLTF claim form dated January 13, 2020 when it 

provided its final additional documentation. The original sum certain was $101,560.45 via OSLTF claim form dated 

August 21, 2019. The claimant changed its sum certain a second time in the amount of $122,539.41 dated January 

6, 2020 while providing additional information.

2 State of California Department of Fish and Wildlife Narrative/Supplemental Report dated January 15, 2015, in 

Second Additional Information Request, Attachment 1d. 3 State of California Department of Fish and Wildlife Narrative/Supplemental Report dated January 15, 2015, in 

Second Additional Information Request, Attachment 1d.

4 National Response Center (NRC) Report # 1105833 dated January 16, 2015 reporting a sheen affecting hundreds 

of birds along the shoreline of San Francisco Bay, a navigable waterway of the United States.

5 USEPA National Enforcement Investigation Center (NEIC) Analytical Results Memorandum dated April 15, 2015. 6 State of California Department of Fish and Wildlife Narrative/Supplemental Report dated January 15, 2015, in 

Second Additional Information Request, Attachment 1d.

7 IBR additional information letter to NPFC dated September 24, 2019.
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I. INCIDENT AND RECOVERY OPERATIONS: 

Incident

On January 16, 2015, at approximately 0900 hours, the State of California Department of 

Fish and Wildlife’s Office of Spill Prevention and Response (OSPR), in its capacity as the State 

On Scene Coordinator (SOSC), was notified by East Bay Regional Park’s (EBRP), Supervisor 

of a wildlife incident caused by an unknown substance found along Hayward 

Shoreline Park in Hayward, California.8 The SOSC and Claimant responded to the Hayward 

incident location during the morning hours, recovering a large amount of oiled birds by an 

unknown oil-like substance. Emergency samples were taken and sent for quick analysis.9 

At approximately 12:30 hours, the SOSC received notification via National Response Center 

(NRC) report # 1105833 that was made by a member of Sector San Francisco Bay.10 The SOSC 

arranged an overflight following the reporting of an additional wildlife event in the San Leandro 

area location. The United States Coast Guard (USCG) Sector San Francisco, in its capacity as 

the Federal On Scene Coordinator (FOSC) for the incident, coordinated with SOSC and handed 

off the jurisdictional lead to them to oversee the response due to the incident’s substantial 

wildlife impact.11 OSPR was the SOSC for this incident. The SOSC and EBRP 

personnel activated the Oiled Wildlife Care Network (OWCN) due to the discovery of hundreds 

of live and dead birds in various locations throughout the San Francisco Bay shoreline.

IBR captured, washed and cared for oiled birds according to the US Fish and Wildlife 

guidelines and regulations.12 Shoreline assessment teams, on water boat crews, and helicopter 

flights over the Bay were all unable to find a source for the spill.13

Recovery Operations

On January 16, 2015, IBR commenced activities related to the intake, stabilization, washing 

and conditioning of birds rescued from locations along the San Francisco Bay shoreline in 

Hayward and San Leandro, California, affected by the oil spill. The process of removing oil 

from birds could not be completed without first stabilizing the bird in the field.14 After the bird 

was stabilized, it was moved to IBR’s Rehabilitation Center for further rehabilitative medical 

procedures and release into their natural habitat.15

 

8 State of California Department of Fish and Wildlife Narrative/Supplemental Report dated January 15, 2015, in 

Second Additional Information Request, Attachment 1d.

9 State of California Department of Fish and Wildlife Narrative/Supplemental Report dated January 15, 2015, in 

Second Additional Information Request, Attachment 1d.

10 National Response Center (NRC) Report # 1105833 dated January 16, 2015 reporting a sheen affecting hundreds 

of birds along the shoreline of San Francisco Bay, a navigable waterway of the United States. 11 Email from FOSC to NPFC RE: NCP actions, dated February 28, 2017 from claim # 917007-0001. 12 Best Practices for Migratory Bird Care during Oil Spill Response dated November 2003 prepared by the US Fish 

and Wildlife Service.

13 State of California Department of Fish and Wildlife Arrest/Investigation Report dated January 15, 2015, page 4 of 

5.

14 2015 East Bay Mystery Goo Event International Bird Rescue Event Summary, in Second Additional Information 

Request, Attachment 1c. 15 Best Practices for Migratory Bird Care During Oil Spill Response dated November 2003 prepared by the US Fish 

and Wildlife Service, Stabilization and Rehabilitation.
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The rehabilitation process begins by stabilizing the oiled bird(s) and in this situation, the

birds were transported to a rehabilitation facility in order to be stabilized and rehabilitated, when 

practicable, then released back to the environment. IBR mobilized out of state response 

personnel to assist in the recovery and rehabilitation activities, therefore, IBR authorized travel 

and third party expenses to out of state personnel reporting to the incident.16 IBR operations 

were completed on April 10, 2015, when the last bird was released.17 

II. CLAIMANT A/ND NPFC:

The NPFC utilizes an informal process when adjudicating claims against the Oil Spill 

Liability Trust Fund (OSLTF).18 A claim for removal costs may be presented by any claimant.19

On August 27, 2019, the NPFC received a claim for uncompensated removal costs from

International Bird Rescue dated August 21, 2019 in the amount of $101,560.45. The claim 

included an OSLTF Claim Form, an additional continuation page with answers to questions #9 

through #11 of the OSLTF claim form, credit card statements for employees who worked at the 

incident, Salaries and Wages excel document used as Personnel Time sheets, subcontractor 

invoices, and Bird Intake Report.20 

III. DETERMINATION PROCESS:

 The NPFC utilizes an informal process when adjudicating claims against the Oil Spill 

Liability Trust Fund (OSLTF).21 As a result, 5 U.S.C. § 555(e) requires the NPFC to provide a 

brief statement explaining its decision. This determination is issued to satisfy that requirement.

 When adjudicating claims against the OSLTF, the NPFC acts as the finder of fact. In this 

role, the NPFC considers all relevant evidence, including evidence provided by claimants and 

evidence obtained independently by the NPFC, and weighs its probative value when determining 

the facts of the claim.22 The NPFC may rely upon, is not bound by the findings of fact, opinions, 

or conclusions reached by other entities.23 If there is conflicting evidence in the record, the 

NPFC makes a determination as to what evidence is more credible or deserves greater weight, 

and makes its determination based on the preponderance of the credible evidence. 

IV. DISCUSSION: 

 The NPFC is authorized to pay claims for uncompensated removal costs that are consistent 

with the National Contingency Plan (NCP).24 The NPFC has promulgated a comprehensive set 

 

16 Cost Center Descriptions in Second Additional Information Request, Attachment1e. 17 Patients in Care by Day in Second Additional Information Request, Attachment 5b. 18 33 CFR Part 136. 19 33 CFR Part 136.201. 20 International Bird Rescue Original submission dated August 27, 2019. 21 33 CFR Part 136. 22 See, e.g., Boquet Oyster House, Inc. v. United States, 74 ERC 2004, 2011 WL 5187292, (E.D. La. 2011), “[T]he 

Fifth Circuit specifically recognized that an agency has discretion to credit one expert's report over another when 

experts express conflicting views.” (Citing, Medina County v. Surface Transp. Bd., 602 F.3d 687, 699 (5th Cir. 

2010)). 23 See, e.g., Use of Reports of Marine Casualty in Claims Process by National Pollution Funds Center, 71 Fed. Reg. 

60553 (October 13, 2006) and Use of Reports of Marine Casualty in Claims Process by National Pollution Funds 

Center 72 Fed. Reg. 17574 (concluding that NPFC may consider marine casualty reports but is not bound by them). 24 See generally, 33 U.S.C. §2712 (a) (4); 33 U.S.C. § 2713; and 33 CFR Part 136.
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of regulations governing the presentment, filing, processing, settling, and adjudicating such 

claims.25 The claimant bears the burden of providing all evidence, information, and 

documentation deemed relevant and necessary by the Director of the NPFC, to support and 

properly process the claim.26 Removal costs are defined as “the costs of removal that are 

incurred after a discharge of oil has occurred or, in any case in which there is a substantial threat 

of a discharge of oil, the costs to prevent, minimize, or mitigate oil pollution from an incident.”27

The term “remove” or “removal” means “containment and removal of oil [...] from water and 

shorelines or the taking of other actions as may be necessary to minimize or mitigate damage to 

the public health or welfare, including, but not limited to fish, shellfish, wildlife, and public and 

private property, shorelines, and beaches.”28 

 Before reimbursement can be authorized for uncompensated removal costs, the claimant must 

demonstrate by a preponderance of the evidence: 

(a) That the actions taken were necessary to prevent, minimize, or mitigate the effects of the

incident; 

(b) That the removal costs were incurred as a result of these actions;

(c) That the actions taken were directed by the FOSC or determined by the FOSC to be 

consistent with the National Contingency Plan.29

(d) That the removal costs were uncompensated and reasonable.30

The NPFC analyzed each of these factors and determined the costs incurred by Claimant and 

submitted herein are not compensable removal costs based on the supporting documentation 

provided. The NPFC determined that removal costs claimed in the amount of $124,234.11 are

denied because the supporting documentation provided is insufficient in supporting the claimed 

costs. Before addressing the documentary deficiencies of this claim submission, the NPFC will 

provide a historical summary of actions taken in order to obtain the satisfactory level of 

documentation needed to properly adjudicate this claim.

 On September 13, 2019, the NPFC requested additional information from the SOSC 

regarding the activities performed by the SOSC and regarding IBR operations during the 

incident. The NPFC also requested information from IBR clarifying facts about specific 

activities and costs claimed. In response to the NPFC’s requests for information, the SOSC’s 

response included an email from the SOSC to NPFC explaining role and an 

explanation of bird rescue operations in general.31 

 The claimant’s supplemental documentation provided with its September 24, 2019 additional 

information response letter are identified as follows: (1) OSPR’s SOSC Incident Report, (2) 

OSPR’s Memorandum of Understanding to rehabilitate wildlife in California, (3) Rehabilitation 

Permit to rehabilitate injured, orphaned, and contaminated wildlife, (4) OSPR’s, Best Practices 

for Migratory Bird Care during Oil Spill Response, (5) an Excel spreadsheet identified as a bird 

log with capture locations, (6) a Word document with a general description of daily activities 

 

25 33 CFR Part 136 26 33 CFR 136.105. 27 33 U.S.C. § 2701(31). 28 33 U.S.C. § 2701(30). 29 Email from FOSC to NPFC RE: NCP Actions, dated February 28, 2017 from claim # 917007-0001. 30 33 CFR 136.203; 33 CFR 136.205. 31 IBR additional information letter to NPFC dated September 24, 2019, with attachments.
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performed by position, (7) credit card receipts for certain employees that worked at the incident 

and expenses claimed, and finally, IBR provided their rate sheets and resubmitted invoicing for 

subcontractors with a word document providing answers to specific questions.32

 Upon review of the information submitted by IBR, the NPFC found it remained insufficient 

to fully understand and correlate claimed costs from birds to employee daily activities. As such, 

on October 18, 2019, the NPFC again requested additional information from the claimant to 

support the claim. The claimant requested additional time to gather and submit the additional 

information and therefore, entered in a tolling agreement.33

 On December 23, 2019, IBR submitted the second additional information package which 

included the following: (1) paystubs for paid employees, (2) credit card receipts for various 

employee expenses, (4) resubmission of invoices from subcontractors which included invoices 

from subcontractors that were not included in the initial claim submission (e.g., Allied Propane 

invoices were not included in the initial submission), (5) Patient Records for other birds in care 

not related to the incident vice only providing the patient records for the bird related cases only,

(6) a Claim Reimbursement Summary breaking down the total for each expense category 

claimed which resulted in a new sum certain, (7) an Incident Summary, Cost Center Description 

with categories, classification and description of costs claimed, (8) Personnel Duties and 

Descriptions including specific personnel by name and the date range of general activities 

performed, (9) Credit Card Expenses document breaking down specific expenses claimed with a 

description of purpose, and volunteer hours through Jan 31, (10) Invoice Breakdown with 

Description of Use, (11) Utilities Summary which explains how the percentage amount claimed 

was calculated, (12) Expanded Case Log which included record of medicine and actions taken 

specific to a given bird, (13) a copy of the Fish and Wildlife and Sensitive Environments Plan 

Summary, (14) the California Wildlife Response Plan 2016, and (15) a Patients in Care by Day 

Excel spreadsheet identifying all birds within the facility by date, further identifying which bird 

is included as part of this incident.34

 Upon the NPFC’s review of all of the additional information provided by IBR, the medical 

records provided do not support, in all instances, the original list of birds provided and the 

additional information bird listing information contradicts the original submission. The disparity 

in information undermines the validity of the overall claimed costs. Two instances of major 

discrepancies are outlined below: 

1. IBR provided a CD containing several documents in support of its original claim submission. 

One of the documents provided is identified as “Mystery Goo 2015 Bird Intake Report”. 

That report is an individual bird listing of 323 birds. Each line item in the report provides the 

following information:

a. a case number for each bird;

b. the species of the bird; 

c. the capture date of the bird; 

d. the date of admission or the bird into the IBR facility; 

e. the disposition date of the bird’s status; 

 

32 First AI received via a letter dated September 24, 2019. 33 International Bird Rescue Tolling Agreement dated October 24, 2019. 34 Second AI received via an email dated December 23, 2019.
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f. a federal band number that was assigned to a released bird;

g. the total number of days the bird was in care; 

h. the first wash date for the bird; 

i. the second wash date for the bird; 

j. age of the bird; 

k. capture location of the bird; and 

l. disposition location of the bird. 

Upon review of the above referenced document, the NPFC took this document and examined 

the information in detail. In order to provide an example, the NPFC took Case # SFME-2015-

0050 (line 52 of the excel spreadsheet provided by the claimant). The document identifies the

species as a “Horned Grebe” with an intake date of 1/16/2015 and a disposition date of 

1/28/2015. The report indicates that the bird was euthanized. With that said, it is important to 

note that this listing of birds was the alleged list of all birds associated with this incident at the 

time the claim was submitted to the NPFC.

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 On December 23, 2019, the Claimant provided additional documentation. One of the 

documents provided is identified as “5b. Patients in Care by Day”. The NPFC performed a 

comparison of that spreadsheet to the original bird intake report. Column “C” of the 

supplemental spreadsheet indicates whether the bird listed on a given line is related to the 

incident at hand or not. 

Upon cross checking the “5b. Patients in Care by Day” spreadsheet against the “Mystery Goo 

2015 Bird Intake Report” spreadsheet, the data does not match. Case # SFME-2015-0050 (line 

533 of the supplemental excel spreadsheet provided by the claimant), indicates the species is a 

Canada Goose with an intake date of 3/25/2015 and a disposition date of 4/4/2015. The 

spreadsheet also indicates in column “C” that this bird was not associated with the incident. This 

new information contradicts the validity of the information initially presented in the “Mystery 

Goo 2015 Bird Intake Report” for this bird which indicates the bird was in fact associated with 

the incident.36

 Additionally, for this particular bird case, the information contained in the Patient Records 

provided by the claimant indicates an intake date of 1/16/2015 with a release date of 1/31/2015. 

The release date in the Patient Record does not match either bird listing previously referenced.37 

The Patient Record also does not match the original “Mystery Goo 2015 Bird Intake Report” for 

the release date or species, nor does it match the supplemental spreadsheet identified as “5b.

Patients in care by day”. In summary, the dates do not match, the species does not match, and 

the disposition status of the bird does not match. As such, the data cannot be correlated to the 

incident and any costs attached would be denied as not properly supported by the record. 

Finally, the employee shown in the Patient Record for this bird was but is not an 

employee the claimant presented into evidence as part of the staff present at the facility or 

 

35 Exhibit 1, Mystery Goo 2015 Bird Intake Report: Submitted by claimant with the initial claim submission. 

Included all birds involved in the “Mystery Goo” spill.

36 Exhibit 2, Patients in Care by Day: Submitted by claimant under the second additional information request by 

NPFC on December 23, 2019. Case example: SF-2015-0050 37 Exhibit 3, Patient Records: Submitted by claimant under the second additional information request by NPFC on 

December 23, 2019. Case example: SF-2015-0050. 
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actively working this incident.38 A visual of the claim documentation referred to for this example 

is as follows: 

Exhibit 1 - Mystery Goo 2015 Bird Intake Report 

Exhibit 2 - Patients in Care by Day 

 

38 Exhibit 4, Summary of Wages and Hours dated January 13, 2020 submitted with second additional information 

request on December 23, 2019, Case example: SF-2015-0050. 


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Records.42 The claimant’s information provided initially and afterwards is deficient and the lack 

of corroboration between documents makes the claimed amount questionable. The evidence 

contradicts the presence of a bird and its involvement in the spill. Based on the foregoing, the 

NPFC is unable to validate the facts and costs presented by the claimant. 

The present evidence from intake and disposal dates do not match between the documents, 

the same bird being euthanized in one listing and released back into the wild in another, makes 

the claims submission evidence deficient to justify payment. The NPFC has attempted to obtain 

information from the claimant on numerous occasions and has also executed a tolling agreement 

in order to provide the claimant with sufficient time to gather all relevant evidence to support the 

amount requested. 

Exhibit 5 – Patients in Care by Day 

Exhibit 6 – Mystery Goo 2015 Bird Intake Report 

Lastly, the NPFC went to IBR’s website on February 6, 2020 in order to see what 

information was available for viewing and related to the incident in question.43 The website data 

 

42 Patient Records: Submitted by claimant under the second additional information request by NPFC on December 

23, 2019.

43 See IBR webpage screenshot of information on the 2015 East Bay Mystery Good incident.
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indicates 423 birds treated and 375 birds released. It is important to note that this information 

does not match the evidence provided and claimed and only adds to the inability to validate the 

claimed costs based on the evidence provided. 

 

Overall Denied Costs = $124,234.1144

V. CONCLUSION:

Based on a comprehensive review of the record, the applicable law and regulations, and for 

the reasons outlined above, IBR’s claim is denied. Because the NPFC has determined that the 

claim is not compensable for legal reasons, it is unable to adjudicate the claimed removal costs.

Should IBR request reconsideration, it will need to provide the appropriate records for the 

birds involved in this incident. Additionally, the claimant will need to ensure that a cross walk 

of all information is clear, concise and supported by the record, including but not limited to, 

personnel costs claimed being properly cross walked to the bird claimed, identify all credit card

expenses to both the bird and the person incurring the charge (including date, amount, reason for 

the expense, etc.), and the document provided that the utility percentage is derived from must be 

corrected, recalculated, and accurate. The current document indicates that an alleged 78% of 

utilities incurred pertain to the birds associated with the incident although the bird listing does 

 

44 See the latest OSLTF Claim Form submitted via the additional information process and dated January 13, 2020.