U.S. Department

of Homeland 

Security

United States

Coast Guard

Director

National Pollution 

Funds Center

United States Coast 

Guard

4200 Wilson Blvd. 

Suite 1000

Arlington, VA 20598-7100 Staff 

Symbol: (Cn)

Phone: 

E-mail: @uscg.mil

 

16480 

 July 02, 2009

CERTIFIED MAIL – RETURN RECEIPT REQUESTED 

Number: 7004 1160 0005 3997 5285 

Ms. 

President, Qawalangin Tribe of Unalaska 

P.O. Box 334 

Unalaska, AK 99685 

RE: Claim Number: J05003-002 

Dear Ms. 

The National Pollution Funds Center (NPFC) has reviewed the claim submitted by the 

Qawalangin Tribe of Unalaska for loss of subsistence use of natural resources resulting 

from the December 2004 M/V Selendang Ayu (Selendang) oil spill (claim J05003-002). 

We have determined that the Tribe has not met its burden of proving a subsistence use 

loss as defined under the Oil Pollution Act (OPA, 33 U.S.C. §§2701 et seq.) and the 

claims regulations (33 U.S.C. §136). Accordingly, the NPFC denies payment of the 

claim. The basis of this determination follows.

Background 

Between December 7 and 9, 2004, the Malaysian-flagged bulk freighter Selendang lost 

power, went aground, and broke apart off the northwestern coast of Unalaska Island, 

Alaska, between Skan Bay and Spray Cape. Approximately 335,732 gallons of 

intermediate fuel oil, marine diesel, and other oils spilled into the Bering Sea. The U.S. 

Coast Guard (USCG) and other federal and state agencies conducted response and cleanup activities through June 2006. 

In response to the oil spill and threat of oil contamination to fishing gear and fish 

harvests, the state of Alaska closed the Makushin and Skan Bay areas of the eastern 

Aleutian Islands to all commercial fishing activities and issued health advisories to curtail 

the consumption of subsistence foods. Fishing closures were in effect through October 
2

2005, potentially affecting the ability of Alaska native and nonnative residents to enjoy 

traditions associated with natural resource activities.

On November 27, 2007, the Qawalangin Tribe of Unalaska submitted a claim to the 

NPFC for loss of subsistence use of natural resources from the Selendang spill, presented 

as the cultural importance of lost natural resources to traditional subsistence cultures

(page 1 of the claim). The Tribe asserts that the spill and associated response actions 

prevented its members from participating in 32 traditional subsistence-based cultural trips 

(fishing, collecting, and camping) to the Makushin, Skan, Kashega, Pumicestone and 

Volcano Bay areas. To compensate for this claimed loss, the Tribe seeks $936,532 to 

renovate and operate a community cultural resource center and $108,372 for past 

assessment costs.

Subsistence Use Loss Claim Requirements and Claim Evaluation

OPA (33 U.S.C. §§2701 et seq.) and the claims regulations (33 C.F.R. §136) require that

claims for loss of subsistence use of natural resources:

1) Conform with the general claims procedures, including time limitations on claims 

(33 C.F.R. §136.101), order of presentment (33 C.F.R. §136.103), and general 

requirements (33 C.F.R. §136.105);

2) Be for lost subsistence use and submitted by an eligible claimant (33 C.F.R.

§§136.219-223);

3) Identify and describe the actual subsistence use of each specific natural resource 

for which compensation is being claimed (33 C.F.R. §§136.221(a) and (b));

4) Describe how and to what extent the subsistence use was affected by injury to or 

loss of each specific natural resource (33 C.F.R. §136.221(c));

5) Describe efforts to mitigate the subsistence use loss and describe each alternative 

source or means of subsistence available to the claimant during the period of time 

for which loss of subsistence is claimed, and any compensation available to the 

claimant for loss of subsistence (33 C.F.R. §§136.221(d) and (e)); and

6) Seek compensation based upon the reasonable replacement cost of the subsistence 

loss suffered by the claimant, if during the period of time for which subsistence is 

claimed, there was no alternative source or means of subsistence available (33 

C.F.R. §136.223).

Moreover, any compensation for a loss of subsistence use of natural resource claim must 

be reduced by the following (33 C.F.R. § 136.223 (b)):

1) All compensation made available to the claimant to compensate for 

subsistence loss;

2) All income which was derived by utilizing the time which otherwise would 

have been used to obtain natural resources for subsistence use; and

3) Overheads or other normal expenses of subsistence use not incurred as a result 

of the incident.
3

The claim must conform to the general claims procedures

Under OPA, the Oil Spill Liability Trust Fund (OSLTF) is available to pay claims for 

uncompensated damages resulting from the discharge, or threat of discharge, of oil into 

or upon navigable waters after August 18, 1990 (33 U.S.C. §2702(a)). Claims, including 

those for loss of subsistence use of natural resources, must be: (a) in writing for a sum 

certain, (b) submitted to the NPFC within three years after the date on which the injury 

and its connection with the incident were reasonably discoverable, and (c) first presented 

to the responsible party (RP) or guarantor before submission to the NPFC for payment

(except as noted in 33 C.F.R. §136.103(b)). 

The NPFC finds that the Selendang incident involved a discharge of oil into navigable 

waters of the United States that began on or about December 8, 2004, thereby meeting 

the requirement at 33 C.F.R. §136.101. The NPFC received this claim in writing with a 

sum certain on November 27, 2007, within three years of the date of the spill (December 

8, 2007) and the statute of limitation established by OPA.

On November 15, 2007, the Tribe submitted this claim to the owner (Ayu Navigation 

Sdn. Bhd.) and operator (IMC Shipping Co. Pte. (Private) Ltd.) of the Selendang, as the 

RPs for this incident. The NPFC received an email correspondence from the RPs’ legal 

representatives on February 28, 2008 that provided the RPs’ decision to deny payment of 

the Tribe’s claim. Thus, the NPFC finds that the claimant has met the requirement under 

33 C.F.R. §136.103 to present their claim to the RP.

The claim must be for lost subsistence use and submitted by an eligible claimant.

Under OPA, the OSLTF is available to pay individuals for uncompensated damages 

resulting from the loss of subsistence use of natural resources (33 C.F.R. §§136.219-223). 

These claims are distinct from claims for public loss of natural resources (33 C.F.R. 

§§136.207-211) (which include lost or diminished use values) that are only recoverable 

by a United States trustee, a State trustee, an Indian Tribe trustee, or a foreign trustee” 

(33 U.S.C. §2702 (b)(2)(A)). 

OPA does not define the term “subsistence”. However, the court in Matter of Cleveland 

Tankers, Inc., 791 F.Supp. 669, 678-79 (E.D. Mich. 1992) held that subsistence under 

OPA “relates to use of a natural resource, such as water to obtain the minimum 

necessities of life”. See also, Sekco Energy, Inc. v. M/V MARGARET CHOUEST, 820 

F.Supp. 1008, 1015 (E.D. La. 1993)(quoting Cleveland Tankers and holding that a loss of 

subsistence claim will not be established under OPA unless the natural resources are used 

for the minimum necessities for life). The NPFC relies on these court rulings to interpret 

the term “subsistence”. Also, the legislative history for subsistence use claims suggests 

that Congress intended that these types of claims compensate individuals who use natural 

resources for their survival.1

 

1

See, Statement of Cong. Young of Alaska in the House discussion of the OPA 90 Conference Report on 

Friday, August 3, 1990, at 136 Cong.Rec. H6933-02 [“I would also like to state unequivocally that, in the 
4

Consistent with the case law, the relevant legislative history, and the term’s plain 

meaning2, subsistence use of natural resources are activities necessary to obtain food, 

shelter and other minimum necessities of life. Thus, to establish a claim for lost 

subsistence use of natural resources, the claimant needs to demonstrate that the resource 

use in question was required for food, shelter, clothing, medicinal purposes, etc. 3 The 

NPFC finds that the cultural use of a resource does not meet this definition of subsistence 

use of natural resources.

The Tribe presents its claim as “loss of traditional subsistence-based cultural use and 

customary ways of life”. Damages are presented as the dollar value (direct value plus a 

“cultural premium”) of 32 lost trips to the traditional fishing areas following official

closures and in response to the perception of the oil contamination. Each lost trip is 

claimed to involve subsistence use, including fishing, collecting plants and other food 

items, and camping, as well as “cultural education and propagation” (page 4 of the claim).

After carefully reviewing the claim, and as further discussed below, the NPFC finds that 

the claimant has not demonstrated a subsistence use loss of natural resources. The claim 

does not identify natural resources used for subsistence purposes that were lost as a result 

of the Selendang incident. Although the claim asserts the claimant’s inability to go on 

trips to or from specific areas and submits a list of traditionally used subsistence 

resources, the claimant fails to offer proof of the type and quantity of natural resources 

typcially caught for subsistence purposes on these trips. The value of a trip, whether of 

cultural or recreational value to the claimant, is not a compensable loss under the 

subsistence use provisions of OPA. However, the cultural value of the lost trips may be 

compensable under the NRD provisions of OPA by NRD trustees, which the claimant is 

not asserting to be4. According to the preassessment data report for the Selendang

incident, the state and federal NRD trustees may consider such losses as those described 

in this claim5.

 

event of a future catastrophic oil spill, this legislation should result in prompt compensation for the 

subsistence fishermen who rely on their catch for consumption and survival.] 

2

 Merriam-Webster dictionary definition: Subsistence: 1a(2): the condition of remaining in existence; 2: 

means of subsisting: as a: the minimum (as of food and shelter) necessary to support life; b: a source or 

means of obtaining the necessities of life. 

3

To the extent that claimant contends that NPFC’s 2006 Claims Guidelines require a different showing, those 

Guidelines have no applicability to this claim because they were withdrawn in September 2007 in accordance 

with the Office of Management and Budget Bulletin No. 07-02-“Agency Good Guidance Practices” (available 

at http://www.whitehouse.gov/omb/memoranda/fy2007/m07-07.pdf).

4

Statement made in claimant’s response letter of May 15, 2008, addressing questions and issues raised in 

the RP’s letter of denial to pay claim, 

5

 See discussion of potential lost human use of natural resource services associated with the enjoyment of 

cultural resources and recreation. Preassessment Data Report #12: Potential Human Use Losses Associated 

with the Selendang Ayu Oil Spill, , (USFWS) and (NOAA). 

(http://alaska.fws.gov/fisheries/contaminants/spill/sa record.htm). 
5

If natural resources are used for subsistence purposes during the lost trips, the claim must 

clearly state this and attempt to prove the subsistence loss. For example, it is unclear 

whether sufficient food is packed to meet dietary requirements, or whether participants 

are limited to consumption of food they are able to collect during the trip. If other natural 

resources are collected during the trip to provide shelter, clothing, medicinal, or other 

subsistence needs, this must also be clearly stated.

The claim must identify and describe the actual subsistence use of each specific

natural resource for which compensation is being claimed.

The claims regulations require claimants to identify and describe the actual subsistence 

use made of each specific natural resource for which subsistence use is being claimed (33 

C.F.R. §§136.221(a) and (b)). Subsistence use loss claims should provide a detailed 

description of the type of resources regularly collected by the claimant during the period 

of loss claimed and the subsistence use(s) made of those resources during the period in 

question. Supporting information (e.g., photographs, published accounts or written 

records documenting resource use for subsistence purposes) should be provided if 

available. 

As stated above, the Tribe is claiming for their estimated value of 32 lost traditional 

subsistence-based cultural trips that involve fishing, collecting plants and other food 

items, and camping. Attachment 3.0 of the Tribe’s claim provides a list of “Culturally 

Valued Resources”, some of which may have a subsistence use (e.g., edible and

medicinal). To the extent that these resources are typically collected and used for 

subsistence (i.e., to maintain the minimum necessities of life), any loss of subsistence use 

due to the Selendang incident might be compensable. However, the Tribe does not 

provide any description of the nature and extent of use of these resources in connection 

with the lost trips, or otherwise. Accordingly, the NPFC finds that the Tribe has not met 

the burden of demonstrating the actual subsistence use of any natural resources.

The claim must describe how and to what extent the claimant’ subsistence use was 

affected by injury to or loss of each specific natural resource.

The claims regulations require that claimants identify how and to what extent subsistence 

use was affected by the injury to or loss of each specific natural resource (33 C.F.R.

§136.221(c)). To show that a subsistence use loss has occurred, claimants must: 

 Demonstrate that it was reasonable to change subsistence use behavior given 

observed effects of the spill; and

 Provide a reasonable measure and basis of the spill-related subsistence use loss

being claimed.

The first condition confirms a connection between the spill and subsistence use impacts. 

For example, it might be reasonable for subsistence users of fish to change their 

subsistence use in response to fish consumption advisories or access restrictions in areas 

they regularly fish. In cases where the claimant has to make subsistence use decisions in 
6

the absence of consumption advisories, access restrictions or other clear, reliable 

information about the level of risk associated with resource use, the claimant should 

demonstrate that his/her actions were consistent with those of a cautious, reasonable 

individual. For example, even in the absence of beach closures or consumption 

advisories, a claimant’s decision to fish in another area because observations of 

significant (i.e., more than trace) oiling in traditional shellfishing locations and a lack of 

timely, accessible information concerning potential consumption risks might satisfy this 

requirement. However, actions taken that ignore readily available information or are 

excessive may not meet this requirement (e.g., claiming impacts in areas well outside the 

spill zone, well after resources were determined to have returned to baseline condition, 

and/or in conflict with well-documented findings of negligible impact, etc.).

The second condition requires that claimants provide a measure of a subsistence use loss

(e.g., numbers or weight of resource), along with an explanation and documentation of 

how these losses were determined. Identification of the claimant’s “regular” level of 

resource use (i.e., the amount of resource typically gathered over a given period of time), 

the period of time that the claimant was reasonably unable to collect the resource due to 

the spill, and the level of reduced use, if any (i.e., the amount of resource that was able to 

be gathered), is sufficient to meet this requirement. 

The claimant contends that it has sustained a subsistence use loss due to the inability to 

take 32 trips to fish, hunt, and/or gather wild resources in 2005 and 2006 following fishing 

area closures and response actions resulting from the Selendang incident. To the extent 

that the spill affected the fishing, hunting, and/or gathering of an established subsistence 

use resource, it might be reasonable for Tribal members to change their subsistence use 

behavior by declining to use natural resources from areas negatively impacted by the 

spill. However, the claim does not provide any information on the typical amount of 

subsistence use resources collected during these lost trips, which would allow a

subsistence use loss to be determined. Thus, the NPFC finds that the Tribe has not 

provided a reasonable measure of lost subsistence use.

The claim must describe efforts to mitigate the subsistence use loss.

The claim regulations require that claimants describe efforts to mitigate the loss of 

subsistence use (33 C.F.R. §136.221(d)) (i.e., find reasonable alternatives in place of the 

lost resources, such as collecting similar resources from nearby areas unaffected by the 

spill or making use of substitute resources as circumstances allow). Therefore, claim 

materials must: 

 Describe the mitigation efforts and any offsets to potential subsistence use losses 

achieved; or 

 Describe why mitigation was not feasible (e.g., due to a lack of comparable 

substitute resources in nearby areas, an inability to travel to or access alternate 

locations, a lack of information about viable alternate sites, etc.).
7

The Tribe’s claim discusses mitigation efforts solely as an evaluation of “replacement 

destinations” for lost “culturally-based” trips (page 13 of the claim). As described above, 

the loss of trips, by itself, does not represent a measure of subsistence use loss. Further, 

to the extent that there was a loss of subsistence use resources resulting from the loss of 

these trips, mitgiation options presented by the claimant should have included 

replacement of dietary, clothing, sheltering, medicinal or other subsistence needs affected 

by the spill. For example, such needs potentially could be met through market purchases 

of food, clothing or medicine. While such mitigation approaches may not be feasible, or 

may only partly substitute for lost subsistence use, they should be considered and their 

viability (or lack thereof) discussed. 

For these reasons, the NPFC finds that the claimant has failed to show any reasonable 

efforts at mitigating its loss. 

The claim must be based on the reasonable cost to replace the lost subsistence use of 

natural resources.

OPA allows compensation for both the reasonable costs to: (1) replace a lost subsistence 

use (33 C.F.R §136.223), and (2) assess damages claimed (33 C.F.R §136.105(e)(8)). 

Resource replacement can occur in a number of ways, including, but not necessarily 

limited to, the cost of purchasing substitute resources or the additional, incremental costs 

associated with traveling farther and/or spending more time collecting resources from 

areas unaffected by the spill. 

The claims regulations specify replacement cost as the measure of compensation for lost 

subsistence use, less: (1) any compensation received by the claimant to compensate for 

the subsistence loss; (2) all income derived by using the time that otherwise would have 

been used to obtain natural resources for subsistence use; and (3) overheads or other 

normal expenses of subsistence use not incurred as a result of the incident (33 C.F.R.

§136.223(a) and (b)). To meet this requirement, claimants must adjust their estimate of 

subsistence use loss to account for compensation received, mitigation, income from spillrelated or replacement activities, and avoided costs. 

If the Tribe had met the other criteria necessary to support a subsistence use loss under 

OPA as described above, the NPFC would analyze how much of the claim could be paid 

by considering any evidence submitted by the claimant to establish the cost of replacing 

the natural resources used by the claimant for subsistence purposes. Stated differently, if 

the claimant could show a loss of subsistence, the NPFC would only compensate the 

replacement cost of natural resources that, but for the incident, would have been used to 

maintain the claimants’ minimum necessities of life. Because compensation for a loss of 

subsistence claim under OPA does not include any damages to the claimant’s culture 

caused by an inability to take the trips described by the claimant, and since these are the 

only damages claimed, this claim must be denied. 

Moreover, even if the NPFC could reimburse damages to the claimant’s culture caused 

by the incident under the subsistence use claims provisions, this claim would still be 
8

denied because the claimant does not adequately support the methods used to determine 

that the amount claimed represents a reasonable replacement cost as required by 33 

C.F.R. 136.223. First, the claimant improperly relies upon consumer surplus values for 

recreational activities to calculate its damages. Recreational value is different from 

cultural value and the claimant’s unsupported contention that the recreational value is a

reasonable basis for the cultural value does not carry its burden of showing by a 

preponderance of the credible evidence. Secondly, the claimant’s unsupported contention 

that it appropriately assigns a value for a cultural premium by chosing an arbitrary range 

for a multiplier to the recreational value, does not carry the claimant’s burden of proving 

by a preponderance of the credible evidence that the cultural losses were valued 

appropriately. As a result of these deficiencies, even if cultural damages could be 

compensated as a subsistence loss, the claimant failed to carry its burden of showing the 

reasonable replacement cost of the claimed loss. 

Additionally, even if cultural damages could be compensated as a subsistence loss and 

even if the claimant’s claimed damages were reasonably calculated, this claim should still 

be denied based upon the claimant’s failure to mitigate its losses or otherwise reduce its 

claimed amount as required by 33 C.F.R. § 136.223 (b). The claimant asserts that the 

locations of the lost canoe trips, as described in their claim, are an important cultural 

aspect. If the NPFC were to accept the premise that no alternate locations are acceptable

to the tribe, the claimant is still responsible for making reasonable efforts to mitigate its 

loss, if any, by considering other mitigation alternatives. Also, the claim materials do not 

document whether Tribal members received any spill-related compensation, derived 

income during time not spent participating in subsistence use activities, and/or avoided 

expenses that would have been incurred as part of subsistence use activities. As a result 

of these deficiencies, even if cultural damages could be compensated as a subsistence 

loss, the claimant has failed to carry its burden of proving the reasonable replacement 

cost of the claimed lost of subsistence.

Based upon the above, the NPFC denies payment for the claimed losses.

Claimed Assessment Costs

As part of its claim, the Tribe also seeks $108,372 for costs incurred to assess the claimed 

subsistence use loss. While the claims regulation allows compensation of the reasonable 

costs incurred by a claimant assessing the damages claimed (33 C.F.R. §136(105)(e)(8)), 

the claimant has the burden of demonstrating that the underlying damages are, in fact,

OPA damages (except as provided under 15 C.F.R. §§990 et seq.). Because the NPFC 

has determined that the Tribe has not demonstrated a subsistence use loss, payment of the 

claimed assessment costs is also denied. Additionally, even if the claimant had

demonstrated a subsistence use loss that was compensable under OPA, the claimant can 

only recover assessment costs that have actually been incurred. In this case, the claimant 

has not paid its contractor any of the claimed assessment costs, and the claimant has not 

demonstrated that it has a legal obligation to do so (i.e., a receipt of payment, a signed 

contract, etc.). 
9

Conclusion 

The NPFC has reviewed the claim submitted by the Qawalangin Tribe for lost traditional 

subsistence-based cultural use and customary ways of life following the Selendang oil 

spill. We have determined that the claimant has not met its burden of proving a 

subsistence use loss under OPA (33 U.S.C. §§2701 et seq.) and the implementing claims 

regulations (33 C.F.R. §136). Claim materials do not: (1) identify and describe an actual 

subsistence use of specific natural resources for which compensation is being claimed; 

(2) describe how and to what extent the claimant’s subsistence use was affected by injury 

to or loss of a specific natural resource; (3) describe efforts to mitigate the claimed 

subsistence use loss; or (4) calculate the reasonable cost to replace the lost subsistence 

use resource. The NPFC further finds that claimed past assessment costs are not 

reasonable because the underlying damages are not subsistence use damages and the 

claimant has failed to show that it has actually incurred any such costs. Accordingly, this

claim to compensate for lost traditional subsistence-based cultural trips following the 

Selendang oil spill and past assessment costs is denied. 

Under OPA, you may ask the NPFC to reconsider this determination. If the claimant has 

evidence that would support a loss of subsistence use claim as described in this 

determination, then NPFC encourages the claimant to request reconsideration and submit 

additional evidence to support its claim. Reconsideration requests must be received by 

the NPFC in writing within 60 days of the date of this letter, and will be based upon the 

additional factual or legal information that you provide with your request. A claim may 

be reconsidered only once, and written disposition of a reconsideration request constitutes 

final agency action. If the NPFC fails to issue a written decision within 90 days after 

receipt of a request for reconsideration, this determination, at the option of the claimant, 

shall be deemed final agency action. 

Should you choose to request NPFC reconsideration of this determination, please mail 

the request with the appropriate claim number (J05003-002) to:

Chief (Cn) 

National Pollution Funds Center 

U.S. Coast Guard 

4200 Wilson Boulevard, Suite 1000 

Arlington, VA 20598-7100

If you have any questions or would like to discuss this matter, please feel free to contact 

me at the above address or by phone at 

 

Sincerely, 

U.S. Coast Guard 
10

Table 1. Claimant’s estimate of lost value and assessment costs.

Undiscounted Value of “Direct Loss”

Number of Person Trips 

Lost Fishing Value of Trip/Person Camping Value ofTrip/Person

Base Trip Value. (Trips Lost x 

(Fishing Val. + Camping Val.))

128 $388.56 (6 days x $64.76/day1)

$545.05 (5 nights 

x $109.01/night2)

$119,502.08 (128 trips x

($388.56 + $545.05))

Notes:

1Consumer surplus value/person/day in 2007 US$ for fishing recreation in Alaska (Kaval 2006)

2Consumer surplus value/person/day in 2007 US$ for camping in Pacific Coast region (Kaval 2006).

Undiscounted “Cultural Premium” Value

Cultural Premium Range 

(1 to 10 x “direct loss”)

Total Trip Value Range (“Direct 

Loss” + “Cultural Premium) Total Value of Lost Cultural Trips (Mean Value)

$119,502 - $1,195,020 $239,004 - $1,314,522 $776,763

Discounted Estimate of Lost Value3

Cultural Premium Range 

(1 to 10 x “direct loss”)

Total Trip Value Range (“Direct 

Loss” + “Cultural Premium) Total Value of Lost Cultural Trips (Mean Value)

$134,500 - 1,344,995 $268,999 - 1,479,494 $874,246

3Calculated through application of a three percent annual discount rate for four years, based on the claimant’s 

estimate of a four year time lag between injury and restoration.

Cultural Center “Replacement” Costs

Estimated Renovation/Operating Costs for 2 Years $936,532

Assessment Costs

Contractor (LTCI) Costs for Assessment Development $108,372

Summary of Claimed Damages

Cultural Center “Replacement Costs” + Past Assessment 

Costs $1,044,904