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Enclosure (1) National Pollution Funds Center Determination

I. Summary of the Incident and Cooperative Natural Resource Damage

Assessment

The M/V Selendang Ayu, a 738-foot bulk freighter, was traveling through the Aleutian Islands on 

December 6, 2004 when it experienced mechanical problems and encountered severe weather 

conditions. After floating without use of its engine for two days, the vessel ran aground off the 

shore of Unalaska, Alaska between Skan Bay and Spray Cape on December 8, 2004. The 

grounding ruptured the vessel’s bottom fuel tanks and, ultimately, approximately 339,538 

gallons of Intermediate Fuel Oil 380 and 14,680 gallons of marine diesel were released into the 

environment1

. The owner of the vessel, Ayu Navigation Sdn Bhd, and the operator, IMC 

Shipping Co. Pte. LTD., were both designated as responsible parties (RPs) for the spill. The RPs 

conducted and funded removal activities for the incident.

Upon notification of the spill, the Department of the Interior, Fish and Wildlife Service (FWS), 

the Department of Commerce, National Oceanic and Atmospheric Administration (NOAA),

along with the State of Alaska, acting as natural resource trustees designated under the Oil 

Pollution Act of 1990 (OPA) and appropriate state laws, initiated an assessment of natural 

resource damages (NRDA) resulting from the discharge and response to the discharge of oil. The 

Trustees and RPs began discussing the possibility of conducting cooperative NRDA activities 

soon after the incident occurred and the Trustees formally requested funding to conduct NRDA 

from the RPs on December 15, 2004.2 The RPs responded that they would fund such work if 

they could participate in the studies and have access to data.3

 The Trustees indicated that they 

did not have time to set up a cooperative agreement prior to commencing field work and instead 

obtained an obligation of funding from the National Pollution Funds Center (NPFC) to

immediately begin their work through an Interagency Agreement (IAA)4

. After continued 

discussions of a cooperative NRDA, the Department of Justice (DOJ) informed the RPs on 

January 8, 2005 of the Trustees’ intent to begin conducting some assessment activities 

cooperatively.5 The initial cooperative work involved planning and conducting various field 

studies in 2005 to support the assessment of bird injuries. The Trustees and RPs signed a 

1 Notice of intent to conduct restoration planning, Fed. Reg. 72, No 61, Mar. 30, 2007

2 Letter from Alaska Attorney General’s Office and Department of Justice to the RPs, dated December 15, 2004 3 Letter from RPs to Alaska Attorney General’s Office, Department of Justice, and Department of Interior, dated 

January 3, 2005 

4 J05003-OI1 5 Email from Department of Justice to the RP, dated January 8, 2005

Claim Number and Name: J05003-RP04, M/V Selendang Ayu Oil Spill Assessment Costs

Claimant: Ayu Navigation Sdn Bhd, and IMC Shipping Co. Pte. LTD 

Claim Type: Limit of Liability Claim, Natural Resource Damage Assessment 

(NRDA), Past Assessment Costs

Amount Requested: $11,391,721.26 

Offer Amount: $7,218,149.91 

Denied Amount: $4,173,571.35 

Determination Date: April 8, 2022 

NPFC Claim Manager: 

(b) (6)
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funding agreement that documented the terms of the bird studies, which included both 

participation and funding from the RPs.

6

 

The Trustees and RPs also formalized an agreement to cooperatively conduct field studies 

assessing oiling of vegetated habitat7 and worked together to plan, conduct, and analyze oiling 

and injury of intertidal habitat and juvenile salmon in 2005. Following the completion of the 

preassessment field studies in 2005, the Trustees began drafting resource specific reports to 

document the results of their preassessment reports. The RPs’ co-authored one of the 

preassessment reports8 and began providing input on all the remaining reports in early 2007. In 

addition to conducting resource specific field work, the Trustees and RPs began cooperatively 

discussing and identifying restoration alternatives by July of 2005.

9

 The Trustees and RPs held 

several in-person meetings in 2005, 2006, and 2007 to broadly discuss all components of the 

NRDA and potential restoration alternatives. Throughout this period, the Trustees submitted 

interim reimbursement requests for their NRDA costs which, with limited exceptions, the RPs

paid in a timely manner. 

The Trustees issued a Notice of Intent to Conduct Restoration Planning on or about March 30, 

2007, which notified the public that the Trustees would proceed with the NRDA process of 

assessing injury, identifying restoration alternatives, and implementing their restoration plan.10 

Soon after, the Trustees and RPs signed a Funding and Participation Agreement (FPA) that 

provided terms for continued cooperation between the parties.11 The FPA provided that the RPs

would continue providing funding to the Trustees to conduct the NRDA and that both parties 

would cooperate in the development of work plans, collection of data, exchange of data and 

reports, and attempt to reach consensus on interpretation and application of study results. 

Through 2007 and 2008, the Trustees and RPs finalized the Preassessment Reports and 

cooperatively initiated studies to (1) assess the amount of oil lingering in the environment 

causing continued injury to resources, and (2) assess injury to seabirds from chronic exposure to 

oil contamination. Ongoing cooperative efforts between the Trustees and RPs to identify, 

evaluate, and discuss potential restoration options and meetings to discuss the overall NRDA 

case continued through 2012. 

On January 27, 2012, the NPFC upheld the RPs’ claim to limit their liability for the Selendang 

Ayu oil spill.

12 At that point, the RPs decreased their level of participation in the NRDA and 

notified the Trustees that, while they would not provide additional funding, advanced funding 

previously provided via the FPA could still be used to pay for (1) development of an assessment 

plan, (2) development of the Administrative Record, and (3) support for the quantification of 

seabird injuries. Limited cooperative efforts continued through March of 2016, when the RPs 

and Trustees formally amended the FPA. This amendment allowed for further cooperation 

specifically related to compiling the Administrative Record and assessing seabird injuries. The 

 6 Natural Resource Damage Funding and Participation Agreement for the M/V Selendang Ayu Incident 7 Joint Protocol: Selendang Ayu Oil Spill Pre-Assessment Study Plan: Injury to Native Vegetation Communities on 

Unalaska Island 

8 Rocque, D. and G. Erickson. 2008. Pre-assessment Data Report #1: Assessment of Potential Injuries to Nearshore 

Vegetation Communities on Unalaska Island following the Selendang Ayu Oil Spill. U.S. Fish and Wildlife Service, 

Anchorage, AK

9 Email from NOAA to Polaris, dated July 1, 2005 10 Notice of intent to conduct restoration planning, Fed. Reg. 72, No 61, Mar. 30, 2007 11 Natural Resource Damage Funding and Participation Agreement for the M/V Selendang Ayu Incident 12 J05003-001
Page 5 of 47

Trustees also agreed to continue giving the RPs opportunity to review and comment on Trustee 

documents and plans. Terms of the amended FPA allowed the Trustees to continue using the 

remaining advanced funds in support of the NRDA. 

II. Summary of Claims for Natural Resource Damages to the Fund 

On October 28, 2016, the Trustees published their “Natural Resource Damage Assessment Plan 

for the M/V Selendang Ayu Oil Spill” (the Trustee Plan). 13 The Trustee Plan documented the 

Trustees’ past NRDA14 activities, the RPs’ varying level of participation in the Trustees’ NRDA,

and the future Trustee NRDA activities needed to complete restoration planning. The Trustees 

submitted a natural resource damages (NRD) claim to the NPFC for past and future

uncompensated assessment costs related to the Trustee Plan. The NPFC provided the Trustees 

$3,699,059.47 in assessment funding pursuant to the September 22, 2017 adjudication of Claim 

J05003-OI03. 

On November 8, 2018, the RPs submitted a limit of liability claim for NRD to the Fund for 

reimbursement of additional assessment costs not included in the Trustee’s claim. The RPs’

claim initially sought $11,373,659, but was increased to $11,391,721.26 on May 21, 2021.

Claimed costs include $5,127,535.97 in NRDA costs reimbursed to the Trustees by the RP and 

$6,264,185.29 in costs incurred directly by the RPs. The RPs’ claim for damages is supported, 

in part, by the Trustee Plan and the administrative record associated with the adjudication of 

Claim J05003-OI03. 

III. Fund Authorities 

A. Fund Authority to Reimburse a Responsible Party 

Under OPA, an RP is liable for all removal costs and damages resulting from either an oil 

discharge or a substantial threat of oil discharge into a navigable water of the United States.15 

Further, an RP’s liability is strict, joint, and several.16 In the case of a vessel, an RP includes any 

person owning, operating or demise chartering the vessel.17 When enacting OPA, “Congress 

explicitly recognized that the existing federal and states laws provided inadequate cleanup and 

damage remedies, required large taxpayer subsidies for costly cleanup activities and presented 

substantial burdens to victim’s recoveries such as... burdens of proof unfairly favoring those 

responsible for the spills.”18 OPA was intended to cure these deficiencies in the law. 

Notwithstanding the above, under limited circumstances the OSLTF may reimburse an RP for its 

uncompensated removal costs or damages. In order to receive OSLTF reimbursement, an RP

must show an entitlement to either a defense or limited liability under OPA as well as an 

entitlement to reimbursement for either removal costs or damages. Specifically, 33 U.S.C. § 

2708(a) (emphasis added) provides that: 

 13 Claim Cover Letter, page 2 for Trustee Claim J05003-OI03 14 Assessment and restoration planning activities 15 33 U.S.C. § 2702(a). 16 See, H.R. Conf. Rep. No. 101-653, 102, 1990 U.S.C.C.A.N. 779 (August 1, 1990) 17 33 U.S.C. § 2701(32)(A). 18 Apex Oil Co., Inc. v. United States, 208 F. Supp. 2d 642, 651-52 (E.D. La. 2002)(citing S. Rep. No. 101-94 

(1989); 1990 U.S.C.C.A.N. 722.).
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The responsible party for a vessel or facility from which oil is discharged, or which poses the 

substantial threat of a discharge of oil, may assert a claim for removal costs and damages 

under section 2713 of this title only if the responsible party demonstrates that--

(1) the responsible party is entitled to a defense to liability under section 2703 of this title; or 

(2) the responsible party is entitled to a limitation of liability under section 2704 of this title. 

Under the plain meaning of 33 U.S.C. § 2708(a), an RP must demonstrate that either a defense or 

limited liability applies before the OSLTF can reimburse removal costs or damages. Consistent 

with this statutory requirement, the OSLTF’s claims regulations also require all claimants to 

carry the burden of proving an entitlement to reimbursement.19 Just like any other claimant, an 

RP must prove an entitlement under OPA before receiving reimbursement from the OSLTF. If 

an RP fails to establish an entitlement to the type of OSLTF reimbursement claimed, the NPFC 

must deny the claim.20

In this claim, the RPs has already established their entitlement to limited liability under 33 

U.S.C. § 2704. On December 6, 2007, the RPs filed a claim under 33 U.S.C. § 2708 seeking 

reimbursement of all removal costs and damages that exceed its limit of liability. Because the 

M/V Selendang’s gross tonnage was 39,755 tons and its limit at the time of the incident was $600 

per ton, the NPFC concluded that the RPs were entitled to reimbursement of OPA removal costs 

 19 See, 33 C.F.R. 136.105(a)(“The claimant bears the burden of providing all evidence, information, and 

documentation deemed necessary by the Director, NPFC, to support the claim.”); and 33 C.F.R. 136.105(e)(6) 

(requiring that each claim include evidence to support the claim).

20 OPA’s legislative history supports NPFC’s conclusion that a responsible party has the burden of showing an 

entitlement to OSLTF compensation under 33 U.S.C. § 2708. As explained in the House Conference Report on 

OPA:

Section 1008 of the House bill allows a responsible party or the owner of oil on a tank vessel, or a 

guarantor for that responsible party or owner of oil, to assert a claim for removal costs and 

damages only if the responsible party or owner can show that the responsible party or owner has 

a defense to liability, or is entitled to a limitation of liability. In the latter case, a claim may be 

submitted only to the extent amounts paid by the responsible party or owner, or by a guarantor on 

the responsible party's or owner's behalf, exceeds the applicable limit on liability. 

H.R. Conf. Rep. 101-653, 110, 1990 U.S.C.C.A.N. 779 (August 1, 1990) (emphasis added). See also, Apex Oil Co., 

Inc. v. United States, 208 F.Supp.2d 642 (E.D. La., 2002)(claimant failed to carry its burden of proof with respect to 

the “act of God” defense); International Marine Carriers v. OSLTF, 903 F.Supp. 1097 (S.D. Tex. 1994)(claimant 

must show elements of a “third party” defense by a preponderance of the evidence); Bean Dredging, LLC v. United 

States, 773 F.Supp.2d 63, 86 (D.D.C. 2011)(the responsible party “had the burden of proof of establishing its 

entitlement to reimbursement on the administrative level” ...); and Water Quality Ins. Syndicate v. United States, 

632 F.Supp.2d 108, 113-114 (D. Mass. 2009)(holding that Water Quality Insurance Syndicate must prove that its 

insured was entitled to limited liability when making a claim against the OSLTF under 33 U.S.C. § 2708). 

Placing the burden of proof on a responsible party claimant seeking compensation under 33 U.S.C. § 2708 is 

consistent with the general rule that a party seeking relief bears the burden of proving an entitlement to that relief. 

Requiring a responsible party claimant to prove its entitlement to OSLTF compensation is also consistent with the 

general rule that a party with particular knowledge of the facts ought to bear the burden of proving those facts. As 

the owner and operator of the M/V Selendang, the RPs had unique access to the facts surrounding this incident 

because they were in control of the operations resulting in the discharge and had dominion and control over the 

discharging vessel. This unique access to the discharging vessel makes Claimants peculiarly well positioned to 

actually know or discover the facts surrounding the incident. Placing the burden of proof on a responsible party and 

its insurers seeking compensation under 33 U.S.C. § 2708 incentivizes full disclosure of all relevant facts by 

Claimants who are well positioned to know or learn what happened during an OPA incident.
Page 7 of 47

or damages exceeding $23,853,000. Through a series of previous claims adjudications, the 

NPFC paid the RPs their OPA-compensable removal costs and damages, excluding any natural 

resource damages in excess of the limit on liability. With this submission, the RPs seek 

reimbursement of their OPA natural resource damages. 

B. Fund Authority to Reimburse a Responsible Party for Natural Resource 

Damages

Before the OSLTF can reimburse any claim for natural resource damages, the claimant must 

demonstrate that it is entitled to recover those types of damages. Under 33 U.S.C. § 2706(a), 

OPA limits recovery of natural resource damages to only the United States, any State, any Indian 

tribe, or a foreign country. Each of these claimants must also show that it managed or controlled 

the resources damaged by the oil spill. The measure of OPA natural resource damages includes: 

(1) the cost of restoring, rehabilitating, replacing, or acquiring the equivalent of, the damaged 

natural resources; (2) the diminution in value of those natural resource damages; and (3) the 

reasonable cost of assessing those damages. Sums recovered under OPA by a trustee must be 

retained in a revolving trust fund and can only be used to pay for or reimburse costs related to 

natural resource damages. 33 U.S.C. § 2706(f). OPA further provides that NOAA, with 

consultation from other agencies, shall promulgate regulations for conducting NRDAs under 

section 2702(b)(2)(A). 33 U.S.C. 2706(e)(1). NOAA’s regulations are codified in 15 C.F.R. Part 

990. 

The RP claimants in this case argue that 33 U.S.C. § 2708(b) provides that an RP establishing 

entitlement to its statutory limitation may present a claim under 33 U.S.C. § 2713 for removal 

costs and damages incurred by, or on behalf of, the responsible party. Damages include natural 

resource damages; thus, the RPs posit that they are automatically entitled to recover natural 

resource damage costs from the Fund even though 33 U.S.C. § 2706(a) expressly restricts who 

can recover that type of damages. Although an RP may recover some natural resource damages 

under limited circumstances, any such recovery is subject to the restrictions imposed by OPA.

OPA provides that trustees act on behalf of the public to assess and recover for natural resource 

damages. The NOAA regulations instruct that trustees must invite the responsible parties to 

participate in the natural resource damage assessment. 15 C.F.R. 990.14(c). If the responsible 

party accepts the invitation to participate, the scope of that participation must be determined by 

the trustees; at a minimum, participation will include notice of trustee determinations and notice 

and opportunity to comment on documents or plans that significantly affect the nature and extent 

of the assessment. Increased levels of participation of responsible parties may be developed at 

the mutual agreement of the trustees and the responsible parties. 15 C.F.R. 990.14(c)(4). Even if 

an RP voluntarily elects to engage in a cooperative assessment with the trustees, participating in 

that process does not transform an RP into a trustee authorized to recover natural resource 

damages under 33 U.S.C. § 2706(a). For example, during a cooperative assessment OPA trustees 

always retain full authority and responsibility to assess and determine the magnitude of injury 

and plan appropriate restoration. 15 C.F.R. 990.14(c)(6). Unlike OPA trustees, an RP who 

volunteers to take part in a cooperative assessment does so without any entitlement to OSLTF 

reimbursement for simply participating in the assessment. 

Notwithstanding OPA’s restrictions limiting who can recover natural resource damages, the 

NPFC acknowledges that in certain instances an RP entitled to limited liability may receive some 

OSLTF reimbursement for that type of damages. In the Powhatan claim determination dated 

January 16, 2020, the NPFC explained how an RP might recover a claim for natural resource 
Page 8 of 47

damages.

21 In that case, the NPFC granted the RP’s limitation of liability and reimbursed some 

of the claimed removal costs and damages, but denied the claimed natural resource damages. The 

claimed natural resource damages were denied on the grounds that the RP: (1) failed to prove it 

had independent authority to incur and recover its own assessment and restoration costs; (2) 

failed to prove its claimed damages were eligible to be treated as trustee assessment and 

restoration costs; and (3) failed to establish that its claimed costs were eligible to be treated as 

OPA-compensable trustee costs as required by 33 C.F.R. 136.209. 

Even though the NPFC denied all of the natural resource damages sought by the RP in the 

Powhatan claim, the NPFC recognizes that there may be instances when an RP is entitled to 

receive OSLTF reimbursement. For example, under 33 U.S.C. § 2715 an RP becomes subrogated 

to all the “rights, claims, and causes of action” held by a claimant when the RP pays 

compensation to a claimant. When an RP pays a claim by a trustee authorized under 33 U.S.C. § 

2706(a) to recover natural resource damages, the RP becomes subrogated to all the trustees’

rights including any entitlement to OSLTF compensation for the costs paid. Consistent with that 

rule, the NPFC explained in the Powhatan claim that an RP may also be allowed to seek OSLTF 

reimbursement upon showing that specific costs were incurred at the explicit direction of a 

trustee, and on behalf of the trustee, for activities determined by the trustee to be necessary to 

support the trustee-led assessment. Thus, if an RP reimburses a trustee’s costs or expends funds 

at the direction of and on behalf of a trustee, those funds may be eligible for OSLTF 

reimbursement under 33 U.S.C. § 2708.

Despite the above limited exceptions, expenses incurred by an RP while participating in a natural 

resource damage assessment are generally not eligible for OSLTF compensation under 33 U.S.C. 

§ 2708 because only trustees are authorized to recover those of types of damages. Further, OPA 

does not provide any authority for OSLTF reimbursement of costs that were primarily intended 

to protect an RP’s litigation interests.22 Because RPs commonly participate in natural resource 

damage assessments as part of an effort to negotiate a settlement or mitigate their potential 

liability in a future lawsuit, the OSLTF will typically be unavailable to reimburse those expenses. 

The NPFC acknowledges that the 2020 Powhatan determination setting forth the standard of 

proof for RP NRDA claims was issued nearly two years after the Selendang claim was presented 

to the Fund. Additionally, the Selendang RPs and the NPFC began discussing the issue of 

whether an RP claimant may present an NRDA claim to the Fund and if so, the standard of proof 

as early as 2005. The discussions were guided by two earlier NRDA adjudications for RP costs 

associated with cooperative agreements that focused on whether the assessment was conducted 

 21 J17008-0001 22 In the absence of an agreement or statute expressly authorizing recovery, a RP’s attorney fees are generally 

unrecoverable. Although 33 U.S.C. § 2715 (c) allows the United States to recover its litigation costs when suing a 

RP, OPA provides no authority for awarding any type of litigation cost to a RP. See, U.S. v. Hyundai Merchant 

Marine Co., 172 F.3d 1187, 1192-93 (9th Cir. 1999)(holding that “[i]t was clearly Congress’s purpose that the 

United States be reimbursed its attorney’s fees when it must sue for such a recovery.”). Consequently, the OSLTF 

will not available to reimburse fees incurred by a RP for services by an attorney or expert, which were designed to 

protect the RP’s litigation interests. As support for this conclusion, the NPFC notes that in Key Tronic Corp. v. U.S., 

511 U.S. 809, 820-21 (1994), the Supreme Court rejected a CERCLA RP’s argument that attorney fees ought to be 

recoverable as response costs. The Court reasoned that the fees were not recoverable because the work at issue was 

primarily intended to protect the RP’s litigation interests. The Supreme Court’s rationale in Key Tronic is 

particularly instructive here because RPs are not authorized to recover natural resource damages or the cost of 

assessing those damages. As RPs are not entitled to recover natural resource damages under OPA, then a RP’s 

litigation costs spent to either mitigate or avoid liability for those costs certainly should not be reimbursed by the 

OSLTF. 
Page 9 of 47

in accordance with the NOAA regulations, whether the costs were duplicative and whether the 

restoration projects adequately compensated for the injuries.23 However, NPFC’s discussions 

with the RPs do not provide a basis to treat the RPs like they are trustees authorized by 33 U.S.C. 

§ 2706(a) to recover natural resource damages. These discussions also don’t provide authority 

for OSLTF reimbursement of an RP’s litigation costs.

Despite the above, NPFC recognizes that the timing of the Powhatan determination may have 

created unique issues of proof for the Claimants. Without the benefit of the Powhatan

determination, the RPs may not have known how to properly document their costs in a manner 

that would maximize eligibility for OSLTF reimbursement. In an effort to address this issue, the 

NPFC carefully considered the totality of circumstances surrounding the claimed costs when 

adjudicating whether they could be reimbursed by the OSLTF. When weighing the evidence in 

this administrative record, the NPFC gave significant weight to the portion of the Trustee Plan 

discussing the coordination of work between the Trustees and the RPs. In particular, the Trustee 

Plan notes that the RPs’ participation in the assessment “reduced duplication of studies, 

increased the cost-effectiveness of the assessment process, and increased information exchange.” 

Additionally, following the end of preassessment activities, the Trustees noted that “they 

sought” the RPs’ participation in assessment activities and that many activities were conducted 

cooperatively.24 The cooperative activities were substantially conducted in accordance with the 

NOAA regulations and there are funding agreements between the RPs and the Trustees for 

certain activities. 

IV. Requirements for Natural Resource Damage Claims to the Fund

A. Claimant's Burden of Proof 

Pursuant to 33 U.S.C. § 2713(e), the President promulgated regulations for the presentation, 

filing, processing, settlement and adjudication of claims against the Fund. The Claims 

Regulations are found at 33 C.F.R. Part 136. Claimants bear the burden of proving an 

entitlement to reimbursement from the OSLTF. 25 Thus, as claimants, natural resource trustees 

must provide publically reviewed assessment and restoration plans, documented costs in order 

that the NPFC can determine that the activities and costs are reasonable and appropriate, and 

certification that the NRDA was conducted in accordance with applicable regulations. In the 

cases where an RP is the claimant, additional documents and evidence must be submitted to the 

NPFC, including evidence that the costs were incurred at the direction of, and on behalf of, the 

trustees for activities necessary to support the trustee-led NRDA. 

When adjudicating claims against the OSLTF, the NPFC utilizes an informal process controlled 

by 5 U.S.C. § 555.

26 As a result, 5 U.S.C. §555(e) requires the NPFC to provide a brief 

 23 Trustee Plan, page 1-4 24 Letter from DOI to RPs, dated March 29, 2007 25 See, 33 C.F.R. 136.105(a)(“The claimant bears the burden of providing all evidence, information, and 

documentation deemed necessary by the Director, NPFC, to support the claim.”); and 33 C.F.R. 136.105(e)(6) 

(requiring that each claim include evidence to support the claim).

26 The court in Bean Dredging, LLC v. United States, 773 F. Supp. 2d 63, 75 (D.D.C. 2011), characterized the 

informal adjudication process for OSLTF claims with the following: “[W]hile the OPA allows responsible parties to 

present a claim for reimbursement to the NPFC, they do not confer upon such parties a right to a formal hearing, a 

right to present rebuttal evidence or argument, or really any procedural rights at all, see 33 U.S.C. §§ 2704, 2708, 

2713, an entirely unremarkable fact given that Congress’ overarching intent in enacting OPA was to ‘streamline’ 

the claims adjudication process . . . .” 
Page 10 of 47

statement explaining the basis for a denial. This determination is issued to satisfy that 

requirement. 

The claims adjudication process is also subject to the regulations at 33 C.F.R. Part 136. During 

the adjudication of claims against the OSLTF, the NPFC acts as the finder of fact. In this role, 

the NPFC considers all relevant evidence and weighs its probative value when determining the 

facts of the claim. If there is conflicting evidence in the record, the NPFC will make a 

determination as to what evidence is more credible or deserves greater weight, and finds facts 

based on the preponderance of the credible evidence. The NPFC is not bound by the findings or 

conclusions reached by other entities.

B. Jurisdictional Information

Claims to the Fund for uncompensated removal costs or damages must result from a discharge of 

oil, or a substantial threat of discharge of oil, from a vessel or facility into navigable waters of 

the United States after August 18, 1990.27 In this incident, there was a discharge of oil from a 

vessel on December 8, 2004. The incident occurred off the coast of Unalaska Island, Alaska in 

waters connected to the Pacific Ocean and the Bering Sea, navigable waters of the United States. 

C. Plan Requirement 

Costs for NRD are determined with respect to plans adopted under 33 U.S.C. §2706(d)(2) that 

are developed and implemented after adequate public notice, opportunity for a hearing, and 

consideration of all public comments. 33 U.S.C. §2706(c)(5). The plan that forms the basis of 

this claim was published on DOI’s website on October 28, 201628 and there were no comments 

on this Plan.2930

D. Period of Limitations for Claims to the Fund

Claims to the Fund must be presented to the NPFC within three years after the date on which the 

injury and its connection with the incident in question were reasonably discoverable with the 

exercise of due care, or within three years from the date of completion of the natural resource 

damage assessment under OPA (33 U.S.C. §2706(e)), whichever is later. 33 U.S.C. §2712(h)(2), 

33 C.F.R. §136.101(a)(1)(ii). 

This claim for NRD costs submitted by the RPs was received at the NPFC on November 8, 2018. 

It was presented in writing to the Director, NPFC, supported by the Trustees’ Plan that describes 

the assessment and restoration planning activities conducted, the need for the activities and how 

they connect to the NRDA process, deliverables produced, and timeframe of activities. Trustee 

efforts to assess injuries from the incident and plan appropriate restoration are ongoing; 

therefore, this claim was received within the period of limitations for claims to the Fund. 

 27 See section 1020 of Pub.L. 101-380. 28 Claim Cover Letter for J05003-OI03, page 2 29 Letter from DOI to NPFC, dated March 21, 2017 30 Trustees indicated that public comments were received on an earlier draft of the Plan and the Trustees' responses 

to those comments are publically available at: 

https://www.fws.gov/alaska/fisheries/contaminants/spill/pdf/selendang_Ayu/TrusteeResponsesToPublicComments_

FinalOl 0816.pdf).
Page 11 of 47

V. NPFC Adjudication of Costs 

A. Costs Reimbursed to the Trustees 

The RPs request reimbursement for a total of $5,127,535.97 in assessment costs that it provided 

to the Trustees to conduct the Selendang Ayu NRDA. These costs include $4,300,062.2031 for 

trustee assessment costs related to preassessment activities32 and $827,473.7733 in assessment 

and restoration planning costs that were incurred following the Trustees’ issuance of the Notice 

of Intent to Conduct Restoration Planning for the incident. 

The NPFC adjudicated this request for reimbursement of Trustee costs on the Trustee Plan and 

the cost documentation, correspondence between the Trustees and the RPs, activities described in 

the IAA, and other documentation within the Administrative Record from Claim J05003-OI03. 

The Trustees provided the RPs with cost documentation to support all NRDA reimbursements 

requested by the Trustees. In the funding agreements, the RPs explicitly instructed the Trustees 

to provide the same level of documentation to the RPs that they would provide to the NPFC in a 

claim to the Fund. Email communications indicate that the RPs contacted the NPFC during the 

drafting of the funding agreements to better understand the NPFC’s documentation requirements. 

Generally, the Trustees did provide the RPs with the same level of cost documentation required 

by the NPFC to support reimbursement of costs.

To support their claim, the RPs submitted to the NPFC all the documentation provided by the 

Trustees to support the original reimbursements. The Trustee costs claimed by the RPs for 

reimbursement are organized and described in the Trustee Plan by resource category. During the 

adjudication of the Trustees’ earlier assessment claim34, the Trustees identified all funding 

provided by the RPs and related such funding to how it supported the various resource categories

in the Trustee Plan. Costs incurred by the Trustees to assess injuries to intertidal, subtidal, and 

anadromous stream habitats are described in pages 3-5 through 3-12 of the Trustee Plan; costs 

incurred to assess injury to birds are described in pages 3-16 through 3-21; costs incurred to 

support restoration planning efforts are discussed in pages 4-3 through 4-10. In addition to the 

resource specific activities conducted by the Trustees, the Trustees also incurred significant costs 

related to public outreach, coordination, and case management. Such costs are discussed in 

pages 1-4, 1-5, and 5-2 of the Trustee Plan, were necessary to support the overall NRDA, and are 

included within the definition of “reasonable assessment costs” provided in 15 C.F.R. § 990.30. 

Additionally, with respect to the $4,300,062.50 in preassessment funding, the RPs based their 

reimbursements to the Trustees for activities conducted from December 2004 through June 30, 

200735 on the scope of work agreed to and negotiated by the NPFC in the IAA36. 

 31 The NPFC separately provided reimbursed funding to the Trustees in the amount of $275,737 for preassessment 

activities through the IAA (J05003-OI1). The NPFC confirmed that such costs were not included in the damages 

requested for this claim. 

32 The RPs used the scope of work agreed to by the NPFC in the IAAs as basis for their reimbursements to the 

Trustees for preassessment activities 33 The NPFC separately provided reimbursed to the Trustees in the amount of $1,236,943.47 for past assessment 

activities. The NPFC confirmed that such costs were not included in the damages for this claim. 

34 J05003-OI03 35 Based on how NOAA submitted costs to the RPs, some minimal costs from July through September of 2007 were 

included in the preassessment reimbursement.

36 J05003-OI1
Page 12 of 47

After reviewing the claim documentation for preassessment and assessment costs, the NPFC 

denies payment of (1) $7,543.76 in claimed costs for purchases and associated indirect costs37

for which the RPs required the Trustees to return possession of the purchases to the RPs as a 

condition of reimbursement, (2) $350.91 for interest and dividend charges incurred by the RPs

for late payment of Invoice 9, (3) $3,383.26 in indirect charges for Alaska Department of 

Environmental Conservation labor cost for which no documentation was provided to support the 

indirect rate charged, (4) $894.28 in travel charges and associated indirect costs failure to

document two trips from Invoice 2 with travel vouchers, and (5) $1,690.73 in costs incurred by 

DOI38 using advanced funding from the RPs. 

With respect to the remaining $5,113,673.03 in documented costs, the NPFC finds that these 

costs are compensable in accordance with 33 C.F.R. §136.211(a). Based on the magnitude of 

potential injury and the complexity and expense of conducting a NRDA in a remote location, the 

NPFC finds that the claimed costs for preassessment39 and assessment activities are reasonable. 

Notably, through the adjudication of Claim J05003-OI03, the NPFC had previously reviewed the 

NRDA activities described in the Trustee Plan that were associated with these costs, determined 

that the Trustee activities were reasonable and appropriate, and, with one limited exception40, 

provided significant additional funding to the Trustees to use the assessment information

gathered through these activities to complete the restoration planning process. 

B. Costs Incurred Directly by the RPs

The RPs claim $6,264,185.29 for costs it directly incurred that are related to the Trustees’ 

NRDA. This total consisted of $816,468.47 in costs associated with the Trustees’ preassessment 

activities and $5,447,716.82 in costs associated with the Trustees’ restoration planning activities. 

As described above in the “Claimant’s Burden of Proof”, to recover NRD for costs it incurred 

directly, the RPs must also provide evidence that the costs were incurred at the direction of, and 

on behalf of the trustees for activities necessary to support the trustee-led NRDA. 41 

Accordingly, the NPFC provided its adjudication of the RPs’ costs in greater detail to support 

payment of the claimed damages and provide clarity of the NPFC’s determinations. The NPFC 

organized the adjudication of costs by phase of the NRDA (preassessment vs assessment) and 

NRDA activity in the same manner in which the costs were claimed to the NPFC by the RPs. 

 37 Invoices 1, 3, and 5 38 These costs were originally denied by the RPs for reimbursement in invoices 1, 2, 5, and 7. Based on Attachment 

7 of Exhibit 29, DOI resubmitted these costs to support the advanced funding. However, no additional cost 

documentation was provided by the Trustees to support these costs. Additionally, the exact costs representing these 

amounts are not clearly identifiable within the invoice cost documentation. 

39 Specifically when looking at the reasonability of preassessment costs, which represented the large majority of 

Trustee costs claimed, the NPFC compared the amount claimed ($4,300,062.20) to the amount originally obligated 

and determined reasonable by the NPFC for preassessment costs in the 2005 IAA ($4,687,563). Similarly, the RPs

based its reimbursements to the Trustees for preassessment work on the scopes of work negotiated and agreed to by 

the NPFC in the IAA. 40 The NPFC denied funds for future costs to assess human use losses associated with the Plan because the scope of 

the work was not supported by previous assessment findings. However, human use activities previously conducted 

by the Trustees were extremely limited in scope and there was a reasonable belief that human use injuries likely 

occurred at the time those activities were conducted. 

41 The NPFC substantially relied on Trustee documentation from the Trustee Plan, the Administrative Record for the 

Trustee claim to the Fund (J05003-OI03), and correspondence between the RPs and the Trustees. 
Page 13 of 47

1. Adjudication Summary of RPs Incurred Costs for Preassessment

Table 1 - RPs Incurred Costs for Preassessment

Activity Claimed Cost Approved Denied

2005 Reference Beach Studies $113,448.04 $100,629.52 $12,818.52

Seabird Mortality Modeling $4,710.00 $0 $4,710.00

Cytochrome P450 Harlequin Ducks $4,867.50 $0 $4,867.50

2005 Anadromous Fish Survey $16,957.11 $16,642.11 $315.00

2005 Intertidal Survey $202,801.29 $200,945.87 $1,855.42

2005 Vegetation Survey $30,120.77 $25,235.49 $4,885.28

Assessment of Spill on Subsistence Foods $9,037.50 $0 $9,037.50

Preassessment Reports $33,655.00 $33,655.00 $0

Consideration of Restoration Alternatives $186,998.74 $177,014.99 $9,983.75

General NRDA $213,872.52 $108,663.32 $105,209.20

TOTAL $816,468.47 $662,786.30 $153,682.17

2005 Reference Beach Studies

The RPs claimed $113,448.04 in costs related to the reference beach studies conducted by the 

Trustees in 2005 to support the assessment of injury to birds.42 As described in the Trustee

Plan43, the Trustees identified the Beached Bird Model (BBM) as their chosen method for 

quantifying the number of birds injured from direct oiling. The Trustees began developing and 

conducting beach studies soon after the spill to provide site specific data to use in the BBM. 

Specifically, these studies assessed: (1) how long carcasses remain on the beach after washing 

ashore, (2) how effective searchers are at finding carcasses on the beach, (3) the proportion of

carcasses in the ocean that washed ashore, and (4) the number of carcasses that would normally 

be expected to wash ashore absent a spill. 

The specific costs claimed by the RPs for costs related to the reference beach studies include the 

following: 

a. $40,335.79 for Polaris personnel to travel and participate in the field studies; review, 

analyze, and discuss results of studies; and help prepare the report on the field studies. 

These costs were documented by invoices, proofs of payment, travel documentation, time 

records, and statements of work; 

b. $57,810.19 for Marzet personnel to discuss and develop bird studies with the Trustees, 

travel and participate in the field studies; review, analyze and discuss results of the 

studies; and help prepare the report on the field studies. These costs were documented by 

invoices, proofs of payment, time records, travel documentation, and statements of work; 

c. $11,994.56 to reimburse Gallagher Marine Systems for docking fees for a research vessel 

used in the studies, all-terrain vehicle rentals used during the studies, and one night of 

lodging for FWS field personnel at the Alaska Maritime Refuge. These costs were 

documented by invoices, proofs of payment, and additional supporting documentation 

identifying and describing claimed costs; 

 42 Claim Section I.B.3.a 43 Trustee Plan, pgs. 3-16 - 3-18
Page 14 of 47

d. $3,307.50 for KYL attorneys to coordinate the reference studies with the Trustees and 

with the RPs’ technical experts, including developing a letter agreement to conduct the 

studies cooperatively with the Trustees. These costs were documented by a description of 

work and time records. 

The NPFC previously determined that the use of a BBM was appropriate for the incident and 

provided additional funding to the Trustees to finalize the BBM using the results of the 2005 

Beach Reference Studies.44 Furthermore, the Trustees specifically identified in the Trustee 

Plan45 and Trustees claim documentation46 that (1) the RPs and Trustees developed study plans 

together to conduct beach studies47, (2) the RPs provided funding and field staff to assist in data 

collection for the studies, (3) the RPs and Trustees had a signed agreement to conduct these 

studies cooperatively48, and (4) the RPs produced a report49 of the studies documenting the 

results of their joint field activities that was shared with the Trustees for review and comment. 

The NPFC finds that, based on the Trustee documentation in the Administrative Record, the RPs

were cooperatively participating with the Trustees in NRDA activities that the Trustees identified 

as necessary to support the assessment of bird injuries. When identifying which of the RPs 

actions were taken on behalf of the Trustees, the NPFC gave significant weight to the 

cooperative nature of the RPs’ activities during the NRDA to infer that some of those activities 

were undertaken at the direction of the Trustees, even though the Administrative Record does not 

clearly document each instance when the RPs acted on behalf of the Trustees. Given the Trustee 

evidence supporting the RPs’ general participation in this assessment activity and the totality of 

the facts surrounding this claim, the NPFC also considered the absence of any evidence 

suggesting that the RPs engaged in specific activities for their own purposes instead of acting at 

the Trustees’ direction. 

With respect to the specific costs claimed by the RPs for these activities, the NPFC found that 

there were $12,700 in costs from Marzet that were not incurred on behalf of the Trustees or at 

their direction. These costs related to Marzet activities occurring from December 21, 2004 

through January 8, 2005 that were conducted independently from the Trustees and prior to any 

cooperative relationship. Correspondence from the Department of Justice clearly established that 

there was no cooperative activities between the RPs and Trustees prior to January 9, 2005.50 

This time period was confirmed by the RPs’ documentation51 which states that “approval to 

work with FWS on various bird carcasses experiments” was not granted until January 9, 2005.

Because these costs were incurred before the RPs’ cooperative agreement, and the descriptions 

of work did not relate to Trustee NRDA activities, the NPFC finds that the costs were not 

incurred on behalf of the trustees.

 44 NPFC Claim Determination (J05003-OI03), dated September 22, 2017 45 Trustee Plan, pgs. 3-17 and 3-18 46 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, dated October 7, 2016, pgs. 2-4 47 The RPs did not participate in the study assessing the proportion of carcasses that washed ashore 48 Letter from DOI to RPs, dated January 24, 2005 49 Varoujean, D., and Polaris Applied Sciences. 2005. M/V SELENDANG AYU oil spill, December 8, 2004, 

Unalaska, Alaska; NRDA Pre-Assessment Studies; Summary of field surveys of bird carcass persistence, searcher 

efficiency, and background bird stranding rates at Chernofski, Unalaska Island and Nikolski, Umnak Island, Alaska. 

Final report. 50 Email from Department of Justice to the RPs, dated January 8, 2005 51 Marzet Invoice MZ2005-1
Page 15 of 47

The NPFC was also unable to document $103.40 of the $2,400.85 in Polaris travel and 

administrative expenses related to Invoice #1388. The invoice documentation included a variety 

of travel and administrative costs related to both the response and multiple NRDA activities, but 

were not clearly allocated between the various projects. While the NPFC was able to identify 

airfare and associated indirects in the amount of $2,297.45 for , the remaining 

balance of claimed costs was undocumented. Similarly, $15.12 in travel and administrative 

expenses from Polaris Invoice #140552 were undocumented. 

The NPFC determines that, based on (1) correspondence between the Trustees and the RPs, (2) 

the Trustee Plan, and (3) the Administrative Record for J05003-OI03, the remaining $100,629.52 

in the RPs’ costs are compensable in accordance with 33 C.F.R. §136.211(a) as reasonable 

trustee past assessment costs. 

Seabird Mortality Modeling 

The RPs claimed $4,710 in costs related to the identification and quantification of bird carcasses 

collected from shorelines in the area of the spill to support the assessment of injury to birds.53 

As described above, the Trustees identified early in the NRDA that they planned to use a BBM 

to quantify injuries to birds. The Trustee Plan describes how the number and type of bird 

carcasses collected during the spill serve as foundational data from which the BBM can then 

extrapolate.

54 Using the results of visual surveys and reports from collected carcasses, the 

Trustees documented their efforts to analyze and measure the diversity and abundance of bird 

carcasses in a preassessment report55 and in the Trustee Plan56. 

The specific costs claimed by the RPs for costs related to the carcass identification study include 

the following: 

a. $2,660 for Polaris personnel to coordinate participation in the carcass identification 

study with Trustees and obtain results of the study. Additionally, the RPs prepared a 

tarball map and estimated bird losses/demographics. These costs were documented 

by invoices, proofs of payment, time records, and statements of work; and 

b. $2,050 for KYL attorneys to coordinate participation in the study and to obtain results 

from the survey. Additionally, there were costs related to internal discussions and 

external discussions with DOJ regarding the carcass identification and criminal 

investigation. These costs were documented by a description of work and time 

records. 

Trustee documentation provides clear evidence that the activities conducted by the RPs were not 

conducted at the direction of the Trustees or on their behalf, nor were they necessary for the 

Trustees’ NRDA.57 While there is correspondence that indicates the RP and Trustees had some 

 

52 These costs are the administrative costs related to travel in Invoice #1405 that were billed to “General NRDA”. 53 Claim Section I.B.3.g 54 Trustee Plan, p. 3-16 55 Byrd, G. and G. Daniel. 2008. Pre-assessment Data Report #9: Bird Species Found Oiled, December 2004 – 

January 2005, at Unalaska Island Following the M/V Selendang Ayu Oil Spill. U.S. Fish and Wildlife Service, 

Homer, AK.

56 Trustee Plan, p. 3-19 57 Polaris activities related to creating tarball maps and estimating bird losses/demographics are particularly outside 

the scope of the Trustees’ bird carcass identification study as described in the Trustee Plan. 

(b) (6)
Page 16 of 47

limited communication regarding the study, there is nothing in the Trustee Plan58, Trustee claim 

documentation59, or preassessment report60 that has any reference to carcass identification 

activities conducted by the RPs on behalf of the Trustees’ NRDA. Rather Trustee 

correspondence establishes that the Trustees intended to conduct the carcass identification study 

independent from the RPs.

61 Additional Trustee correspondence documents that the Trustees 

only provided the RPs with the results of their bird carcass abundance analysis after work had 

been completed62. Information on the location and date carcasses were found was provided to 

the RPs by the Trustees, at the RPs’ request, after the Trustees had completed their analysis on 

this data as well.63 Furthermore, given that these costs were incurred after the Trustees’ study 

was completed and they did not support the Trustees’ results, they also cannot be considered 

necessary to the Trustees’ NRDA. Accordingly, claimed costs in the amount of $4,710 cannot 

be considered reasonable trustee assessment costs and are therefore denied. 

Additionally, KYL costs related to discussions with DOJ and a criminal investigation are denied 

as not being related to the Trustees’ NRDA. These costs must be denied because the 

administrative record shows that they are litigation costs intended to mitigate or avoid the RPs’

liability.

Cytochrome P450 in Harlequin Ducks 

The RPs claimed $4,867.50 in costs related to the study of chronic exposure of oil on harlequin 

ducks to support the assessment of injury to birds.64 As described in the Trustee Plan65, in 2005 

and 200666 the Trustees captured harlequin ducks from three heavily oiled bays and one 

minimally oiled reference site. They took liver biopsies from the ducks, tested the tissue for 

cytochrome P45067, and compared the results between the oiled and unoiled areas to observe if 

there was a significant increase of P450 activity in liver tissue obtained from heavily oiled areas. 

The specific costs claimed by the RPs for costs related to the P450 study include the following: 

a. $2,430 for Polaris personnel to discuss the study with Trustees and do background 

research on P450. These costs were documented by invoices, proofs of payment, 

time records, and statements of work; and

b. $2,437.50 for KYL attorneys to communicate with the Trustees, RPs, and the RPs’

contractors regarding funding and participating in the P450 study. These costs were 

documented by a description of work and time records. 

 58 Trustee Plan, pgs. 3-14 – 3-19 59 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, dated October 7, 2016, pgs.2-4 60 Byrd, G. and G. Daniel. 2008. Pre-assessment Data Report #9: Bird Species Found Oiled, December 2004 –

January 2005, at Unalaska Island Following the M/V Selendang Ayu Oil Spill. U.S. Fish and Wildlife Service, 

Homer, AK.

61 Letter from DOI to RPs, dated May 27, 2005 62 Letter from DOI to RPs, dated March 24, 2006 63 Email from DOI to RPs, dated June 29, 2007 64 Claim Section I.B.3.g 65 Trustee Plan, pgs. 3-20 and 3-21 66 The Trustees later conducted another sampling session in 2008; the RPs’ costs related to the 2008 study are 

claimed separately. 

67 P450 is a widely used indicator of PAH exposure in wildlife.
Page 17 of 47

The RPs did not participate in the 2005 and 200668 field studies and refused to provide funding 

to the Trustees during the period of the study.

69 After completing the field studies and analysis 

of their findings, the Trustees shared a draft of the report70 with the RPs for review. However, 

the RPs’ analysis and comments only served to contradict and dismiss the Trustees’ findings

from the study.

71 The Trustee documentation provides clear evidence that the RPs’ costs were 

not incurred on the Trustees behalf or at their direction and, most compelling, the claimed costs 

cannot be considered necessary for the Trustees’ NRDA. Accordingly, claimed costs in the 

amount of $4,867.50 cannot be considered reasonable trustee assessment costs and are therefore 

denied. 

Additionally, KYL costs related to communications between KYL and The Swedish Club, the 

vessel’s insurer, are denied. To the extent the RPs engaged and relied upon the funding and 

participation of The Swedish Club during the course of the NRDA, such costs were incurred on 

the RPs’ behalf rather than directly in support of the Trustees’ NRDA. Also, costs incurred for a 

report from RPs’ counsel to the RPs’ insurance company are a litigation cost that is not OSLTF 

compensable. 

2005 Anadromous Fish Study 

The RPs claimed $16,957.11 in costs related to the anadromous fish study conducted in 2005 to 

support the assessment of injury to juvenile salmonids.72 As described in the Trustee Plan73, 

based on the results of SCAT surveys conducted by the response, the Trustees undertook 

additional surveys of streams in areas where oil was documented to more closely identify and 

document the presence and impact of oil. In March through May of 2005, passive water 

samplers were deployed to determine if the levels of PAH in the water were sufficient to cause 

fish injuries. Later, in June of 2005, the Trustees conducted shoreline surveys to look for the 

presence of oil and fish. While conducting these surveys, they collected newly hatched fish with 

nets and tested their tissue for the presence of PAHs.

The specific costs claimed by the RPs for costs related to the anadromous fish study include the 

following: 

a. $14,272.11 for Polaris personnel to travel and participate in the study. These costs were 

documented by invoices, proofs of payment, travel documentation, time records, and 

statements of work; 

b. $2,685 for KYL attorneys to coordinate the study with the Trustees and with the RPs’

contractor. These costs were documented by a description of work and time records 

The NPFC previously determined that conducting the anadromous fish study was appropriate for 

the incident and provided additional funding to the Trustees to finalize the assessment of impacts 

to marine resources using the results of this study.74 Furthermore, the Trustees identified in the 

 68 The RPs were not invited to participate in the 2005 survey, but declined the Trustees’ offer to participate in the 

2006 survey. 

69 Facsimile from KYL to DOJ, dated January 27, 2006 70 Flint, P., J. Schamber, K. Trust, K. Miles, and B. Wilson. 2008. Pre-assessment Data Report #10: Chronic 

exposure of sea ducks to oil released by the Selendang Ayu at Unalaska Island. U.S. Geological Survey-Alaska 

Science Center, Anchorage, AK 99503. 71 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, dated October 7, 2016, p. 4 72 Claim Section I.B.3.b 73 Trustee Plan, pgs. 3-9 and 3-10 74 NPFC Claim Determination (J05003-OI03), dated September 22, 2017 
Page 18 of 47

Trustee Plan75 and claim documentation76 that the Trustees and RPs worked together to survey 

anadromous streams. Additionally, the Trustees confirmed via letter77 an agreement with the 

RPs to both fund and participate in the study of impacts on juvenile salmon through the 

deployment of passive water samplers. 

The NPFC finds that, based on the Trustee documentation in the Administrative Record, the RPs 

were cooperatively participating with the Trustees in NRDA activities that the Trustees identified 

as necessary to support the assessment of marine resources. When identifying which of the RPs 

actions were taken on behalf of the Trustees, the NPFC gave significant weight to the 

cooperative nature of the RPs’ activities during the NRDA to infer that some of those activities 

were undertaken at the direction of the Trustees, even though the Administrative Record does not 

clearly document each instance when the RPs acted on behalf of the Trustees. Given the Trustee 

evidence supporting the RPs’ general participation in this assessment activity and the totality of 

the facts surrounding this claim, the NPFC also considered the absence of any evidence 

suggesting that the RPs engaged in specific activities for their own purposes instead of acting at 

the Trustees’ direction. 

With respect to the specific costs claimed by the RPs for these activities, the NPFC found that 

there were $315 in KYL costs that were clearly not incurred on behalf of the Trustees or under 

their direction78. These costs related to subsistence use, which as explained in more detail 

below, is not a part of NRDA. 

The NPFC determines that, based on (1) correspondence between the Trustees and the RPs, (2) 

the Trustee Plan, and (3) the Administrative Record for J05003-OI03, the remaining $16,642.11 

in the RPs’ costs are compensable in accordance with 33 C.F.R. §136.211(a) as reasonable 

trustee past assessment costs. 

2005 Intertidal Studies 

The RPs claimed $202,801.29 in costs related to the studies of shoreline, intertidal, and subtidal 

habitats conducted in 2005 to support the assessment of injury to marine habitat and wildlife. As 

described in the Trustee Plan79, the Trustees conducted visual surveys in 2005 to observe 

impacts of oil on various types of flora and fauna in intertidal rocky shore and beach habitats. 

Additionally, the Trustees collected mussels near the intertidal areas and analyzed tissue from the 

mussels for PAH concentrations80. Lastly, the Trustees conducted diving surveys of subtidal 

habitats in areas where surface oil was identified to observe the presence and impacts of oil on 

the seafloor.81 

The specific costs claimed by the RPs for costs related to the intertidal studies include the 

following: 

a. $81,862.54 to reimburse Gallagher Marine Systems for the cost of chartering the 

Ocean Olympic, which served as the host vessel from which the surveys were 

conducted. These costs were documented by invoices, proofs of payment, charter 

 

75 Trustee Plan, p. 3-5 76 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, dated October 7, 2016, page 1 77 Letter from NOAA to RPs, dated March 23, 2005 78 Time entry for on March 11, 2005 79 Trustee Plan, pgs. 3-5 – 3-7 80 Trustee Plan, p. 3-8 81 Trustee Plan, p. 3-10

(b) (6)
Page 19 of 47

party, and additional supporting documentation identifying and describing claimed 

costs; 

b. $27,186.06 for Pentec Environmental personnel to travel and participate in the 

surveys. These costs were documented by invoices, proofs of payment, travel 

documentation, and statements of work; 

c. $92,177.69 for Polaris personnel to coordinate and plan the study with the Trustees, 

prepare and stock the vessel, travel and participate in the surveys, and process data 

collected from the surveys. These costs were documented by invoices, proofs of 

payment, travel documentation, time records, and statements of work; and

d. $1,575 for KYL attorneys to negotiate the charter party for the Ocean Olympic and 

coordinate the surveys with the Trustees and the RPs’ contractors. These costs were 

documented by a description of work and time records. 

The NPFC previously determined that conducting the intertidal surveys were appropriate for the 

incident and provided additional funding to the Trustees to finalize the assessment of impacts to 

marine resources using the results of this study.82 Furthermore, the Trustees identified in the 

Trustee Plan83, Trustee claim documentation84, and preassessment report85 that the RPs worked 

together with the Trustees to cooperatively conduct the surveys and that the RPs paid for the 

charter vessel that supported the survey teams. 

NPFC finds that based on the Trustee documentation in the Administrative Record, the RPs were

cooperatively participating with the Trustees in NRDA activities that the Trustees identified as 

necessary to support the assessment of marine resources. When identifying which of the RPs 

actions were taken on behalf of the Trustees, the NPFC gave significant weight to the 

cooperative nature of the RPs’ activities during the NRDA to infer that some of those activities 

were undertaken at the direction of the Trustees, even though the Administrative Record does not 

clearly document each instance when the RPs acted on behalf of the Trustees. Given the Trustee 

evidence supporting the RPs’ general participation in this assessment activity and the totality of 

the facts surrounding this claim, the NPFC also considered the absence of any evidence 

suggesting that the RPs engaged in specific activities for their own purposes instead of acting at 

the Trustees’ direction. 

With respect to the specific costs claimed by the RPs for these activities, the NPFC was unable to 

document $1,855.42 of the $7,361.62 in Polaris travel and administrative expenses related to 

Invoice #1470. The invoice documentation included a variety of travel and administrative costs 

related to both the response and multiple NRDA activities, but were not clearly allocated 

between the various projects. Because the RPs failed to properly document these costs, they must 

be denied. 

The NPFC determines that, based on (1) correspondence between the Trustees and the RP, (2) 

the Trustee Plan, and (3) the Administrative Record for J05003-OI03, the remaining $200,945.87 

 82 NPFC Claim Determination (J05003-OI03), dated September 22, 2017 83 Trustee Plan, p. 3-5 84 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, dated October 7, 2016, p. 1 85 Cubit, J., L. DiPinto, A. Fukuyama, D. Hahn, J. Hudson, N. Iadanza, J. Krukoff, C. Kurle, S. Lindstrom, D. 

Savarese, L. Syverson, and I. Zelo. 2008. Pre-assessment Data Report #2: M/V Selendang Ayu Oil Spill Surveys of 

Intertidal, Subtidal, and Anadromous Stream Habitats. National Oceanic and Atmospheric Association, Anchorage, 

AK.
Page 20 of 47

in the RPs’ costs are compensable in accordance with 33 C.F.R. §136.211(a) as past reasonable 

trustee assessment costs. 

2005 Vegetation Survey 

The RPs claimed $30,120.77 in costs related to the study of vegetated shorelines to support the 

assessment of injury to marine habitats and wildlife that use these habitats for food and shelter.86 

As described in the Plan87, the Trustees conducted a nearshore vegetation survey in July 2005 in 

oiled areas and unoiled control sites to look for oil impacts and compare plant species abundance 

and diversity. 

The specific costs claimed by the RPs for costs related to the intertidal studies include the 

following: 

a. $28,995.77 for Polaris personnel to coordinate and plan the study with the Trustees, 

travel and participate in the surveys, process data collected from the surveys, and 

write a report of the study findings. Additional costs were related to an issue 

regarding weed seeds and soybeans. These costs were documented by invoices, 

proofs of payment, travel documentation, time records, and statements of work; and

b. $1,125 for KYL attorneys to coordinate the surveys with the Trustees and the RPs’

contractors. Some costs also related to the weed seed issue identified above. These 

costs were documented by a description of work and time records. 

The NPFC previously determined that conducting the vegetation survey was appropriate for the 

incident and provided additional funding to the Trustees to finalize the assessment of impacts to 

marine resources using the results of this study.88 Furthermore, the Trustees identified in the 

Trustee Plan89 and Trustee claim documentation90 that the RPs worked together with the 

Trustees to cooperatively conduct the surveys and confirmed via letter91 an agreement with the 

RPs to both fund and participate in the study. The Trustees also published a preassessment 

report92 discussing the results of these studies that was jointly authored by the RPs. 

The NPFC finds that, based on the Trustee documentation in the Administrative Record, the RPs

were cooperatively participating with the Trustees in NRDA activities that the Trustees identified 

as necessary to support the assessment of injuries to marine resources. When identifying which 

of the RPs actions were taken on behalf of the Trustees, the NPFC gave significant weight to the 

cooperative nature of the RPs’ activities during the NRDA to infer that some of those activities 

were undertaken at the direction of the Trustees, even though the Administrative Record does not 

clearly document each instance when the RPs acted on behalf of the Trustees. Given the Trustee 

evidence supporting the RPs’ general participation in this assessment activity and the totality of 

the facts surrounding this claim, the NPFC also considered the absence of any evidence 

suggesting that the RPs engaged in specific activities for their own purposes instead of acting at 

the Trustees’ direction. 

 86 Claim Section I.B.3.d 87 Trustee Plan, pgs. 3-7 and 3-8 88 NPFC Claim Determination (J05003-OI03), dated September 22, 2017 89 Trustee Plan, p. 3-7 90 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, dated October 7, 2016 p. 5 91 Letter from DOI to RPs, dated July 13, 2005 92 Rocque, D. and G. Erickson. 2008. Pre-assessment Data Report #1: Assessment of Potential Injuries to Nearshore 

Vegetation Communities on Unalaska Island following the Selendang Ayu Oil Spill. U.S. Fish and Wildlife Service, 

Anchorage, AK.
Page 21 of 47

With respect to the specific costs claimed by the RPs for these activities, the NPFC was unable to 

document $4,097.78 of the $7,909.52 in Polaris travel and administrative expenses related to 

Invoice #1483. The invoice documentation included a variety of travel and administrative costs 

related to both the response and multiple NRDA activities, but the costs were not clearly 

allocated among the various projects. Because the RPs failed to properly document these costs, 

they must be denied. 

Additionally, there were $787.50 in costs from both KYL ($652.50) and Polaris ($135) regarding 

soybeans and a weed seed project. These costs were incurred several months after the RPs’

work on the study report had concluded and there was no connection between this work and the 

Trustees’ vegetation study. Additional documentation indicates that the RPs did not consider 

costs related to this project as NRDA93 and the Trustees themselves did not bill costs for this 

project as NRDA94. Accordingly, the NPFC denied these costs as they were clearly not in 

support of the Trustees’ vegetation study or the Trustees’ NRDA in general and are therefore not 

compensable as trustee assessment costs. 

The NPFC determines that, based on (1) correspondence between the Trustees and the RPs, (2) 

the Trustee Plan, and (3) the Administrative Record for J05003-OI03, the remaining $25,235.49 

in the RPs’ costs are compensable in accordance with 33 C.F.R. §136.211(a) as reasonable 

trustee past assessment costs. 

Assessment of Impact of Spill on Subsistence Foods

The RPs claimed $9,037.50 in costs related to the study of the effects of the spill on the ability of 

residents of Unalaska to hunt and fish for subsistence foods.95 

The specific costs claimed by the RPs for costs related to subsistence use include the following: 

a. $8,407.50 for Polaris personnel to participate in Subsistence Fishery Advisory Group 

activities, support subsistence fishery sampling efforts, and work related to health 

evaluation and seafood health advisories. These costs were documented by invoices, 

proofs of payment, time records, and statements of work; and

b. $630 for KYL attorneys to coordinate and support subsistence fishery sampling 

efforts. These costs were documented by a description of work and time records. 

Trustee documentation provides clear evidence that the activities conducted by the RPs were not 

conducted at the direction of the Trustees or on their behalf, nor were they necessary for the 

Trustees’ NRDA. Lost subsistence use is not a part of NRDA96. Further, there is nothing in the 

Plan97, Trustee claim documentation98, or preassessment report99 that has any reference to 

human use assessment activities conducted by the RP on behalf of the Trustees’ NRDA. The 

 93 Email from RPs to FWS, dated May 10, 2006 94 Email from FWS to RPs, dated May 15, 2006 95 Claim Section I.B.3.e

96 Lost subsistence use is a separate claim under 33 USC §2702(b)(2)(C). 97 Trustee Plan, pgs. 3-23 and 3-24 98 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, dated October 7, 2016 99 Kohout, J. and N. Meade. 2008. Pre-assessment Data Report #12: Potential Human Use Losses Associated with 

the Selendang Ayu Oil Spill.
Page 22 of 47

activities identified by the RP, such as participating in the Subsistence Fishery Advisory Group, 

conducting sampling to determine if fish could be safely eaten, and issuing safety advisories to 

the public, were conducted in support of the response and public health rather than to support the 

NRDA. Correspondence from Polaris100, the Plan101, and meetings notes102 from the Subsistence 

Advisory Group confirm that this workgroup and associated seafood sampling and seafood 

advisories were conducted to support public health at the direction of the Unified Command. 

While personnel from FWS, NOAA, and the State of Alaska were involved in the Subsistence 

Fishery Advisory Group, this participation was not in support of the NRDA, rather they were 

operating pursuant to their participation in the response. Even though the Trustees later 

reviewed the results of the work conducted by the Subsistence Fishery Advisory Group during 

their assessment of human use losses, the instigating purpose103 for the work was to support the 

response. Accordingly, claimed costs in the amount of $9,037.50 cannot be considered 

reasonable trustee assessment costs and are therefore denied.

Preassessment Reports 

The RPs claimed $33,655 in costs related to reviewing and providing comments on the Trustees’ 

preassessment reports104 during the Preassessment Phase of the NRDA. As identified in the 

Trustee Plan, the Trustees summarized the results of all preassessment activities in twelve reports 

that were organized by study and posted on the FWS website.105 The Trustees drafted these 

reports as part of the assessment work described in each individual resource category of the 

Trustee Plan. Ultimately, the preassessment reports served to not only document the various 

activities conducted by the Trustees and RPs, but established a basis for the Trustees’ continued 

efforts to conduct additional assessment and restoration planning activities. 

The Claim includes $33,655 in costs associated with reviewing pre-assessment reports prior to 

initiation of the Restoration Planning phase and $121,868.75106 during the early Restoration 

Planning phase following the execution of the cooperative agreement.

The specific costs claimed by the RPs for costs related to reviewing preassessment data reports 

during the preassessment phase include the following:

a. $28,780 for Polaris personnel to review, analyze, and conduct research regarding the 

reports. These costs were documented by invoices, proofs of payment, time records, and 

statements of work; and

b. $4,875 for KYL attorneys to review the reports and coordinate activities with the RP 

contractors. These costs were documented by a description of work and time records.

Throughout the Trustee Plan and additional Trustee claim documentation107, the Trustees 

documented the significant participation of the RPs in a large majority of activities that were 

discussed in the preassessment reports, which provided the RPs direct and in-depth knowledge of 

 100 Email from Polaris to Subsistence Fishery Advisory Group, dated February 17, 2006 101 Trustee Plan, p. 3-23 102 Selendang Ayu Subsistence Fishery Core Group Meeting Minutes, August 9, 2005 103 Similar to Trustees reviewing and relying on SCAT data gathered during a response 104 The Preassessment Reports were not finalized prior to the Trustees issuing a Notice of Intent to Conduct 

Restoration Planning and beginning formal restoration planning efforts.

105 Trustee Plan, p. 3-2 106 Cost claimed in Claim Section II.A.2.a and adjudicated later in determination 107 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, dated October 7, 2016
Page 23 of 47

the assessment studies undertaken and the resulting analyses. The significant level of the RPs’

participation in the preassessment was best reflected by the RPs co-authoring the preassessment 

report for the 2005 vegetation study108. Additional correspondence establishes that the Trustees 

invited the RPs to participate in technical group meetings that were organized, in part, to finalize 

the preassessment reports.109 Agendas from the technical meetings confirm that the 

preassessment reports were part of joint discussions between the Trustees and RPs.

110 

Subsequent Trustee correspondence documents that the Trustees requested that the RPs complete 

review of the preassessment reports by the end of August 2007.111 

The NPFC finds that, based on the Trustee documentation in the Administrative Record, the RPs

were cooperatively participating with the Trustees in NRDA activities that the Trustees identified 

as necessary to support the overall NRDA and fulfill their administrative obligations of 

documenting the results of their preassessment efforts. When identifying which of the RPs 

actions were taken on behalf of the Trustees, the NPFC gave significant weight to the 

cooperative nature of the RPs’ activities during the NRDA to infer that some of those activities 

were undertaken at the direction of the Trustees, even though the Administrative Record does not 

clearly document each instance when the RPs acted on behalf of the Trustees. Given the Trustee 

evidence supporting the RPs’ general participation in this assessment activity and the totality of 

the facts surrounding this claim, the NPFC also considered the absence of any evidence 

suggesting that the RPs engaged in specific activities for their own purposes instead of acting at 

the Trustees’ direction. 

The NPFC determines that, based on (1) correspondence between the Trustees and the RPs, (2) 

the Trustee Plan, and (3) the Administrative Record for J05003-OI03, $33,655 in the RPs’ costs 

are compensable in accordance with 33 C.F.R. §136.211(a) as reasonable trustee past assessment 

costs.

Consideration of Potential Restoration Alternatives

The RPs claimed $186,998.74 in costs related to the research, analysis, and discussion of 

potential restoration alternatives during the preassessment phase of the NRDA.112 As identified 

in the Trustee Plan, early after the oil spill began, the Trustees and RPs began to develop 

potential restoration alternatives.113 Some of the projects identified and evaluated during the 

preassessment phase of the NRDA included: removal of predator species, habitat protection 

through easement or acquisition, removal of marine debris, improving salmon spawning habitat, 

and funding the construction of a waste oil facility.114

The specific costs claimed by the RPs for costs related to supporting restoration planning during 

the preassessment phase include the following:

 108 Rocque, D. and G. Erickson. 2008. Pre-assessment Data Report #1: Assessment of Potential Injuries to Nearshore 

Vegetation Communities on Unalaska Island following the Selendang Ayu Oil Spill. U.S. Fish and Wildlife Service, 

Anchorage, AK.

109 Email from DOI to Polaris, dated June 15, 2007 110 Selendang Ayu – Nearshore Resources Agenda for July 9, 2007; Selendang Ayu – Seabird Mortality Agenda for 

July 10, 2007

111 Email from DOI to RPs, dated September 5, 2007 112 Claim Section II.A.2.f 113 Trustee Plan, p. 4-3 114 Restoration Work Group Meeting Agenda for April 4, 2006 
Page 24 of 47

a. $164,752.49 for Polaris personnel to identify and conduct background research on 

restoration alternatives, evaluate restoration alternatives, discuss restoration alternatives 

with Trustees, travel and attend restoration meetings with Trustees, and identify 

contractor support to provide expert review of alternatives. These costs were documented 

by invoices, proofs of payment, travel documentation, time records, and statements of 

work; and

b. $22,246.25 for KYL attorneys to evaluate restoration alternatives and discuss restoration 

alternatives with Trustees and Polaris personnel. These costs were documented by a 

description of work and time records.

The NPFC previously determined that efforts to conduct restoration planning were appropriate 

for the incident and provided additional funding to the Trustees to complete the restoration 

planning activities necessary to develop alternatives that will adequately compensate the public 

for all damages.115 Trustee correspondence documents that the Trustees and RPs had already 

begun meeting together and evaluating restoration alternatives as early as June of 2005.116 

Further correspondence indicates that the Trustees encouraged the RPs to identify their own 

restoration alternatives in November of 2006.117 The Trustees also requested meetings with the 

RPs to discuss restoration alternatives in both February118 and June of 2006119. Additional 

documentation evidences that meetings between the Trustees and the RPs to discuss restoration 

alternatives were held on April 4, 2006120, September 5-9, 2006121, July 11, 2006122, and May 4, 

2007123. 

The NPFC finds that, based on the Trustee documentation in the Administrative Record, the RPs

were cooperatively participating with the Trustees in NRDA activities that the Trustees identified 

as necessary to support the development of appropriate restoration alternatives. When identifying 

which of the RPs actions were taken on behalf of the Trustees, the NPFC gave significant weight 

to the cooperative nature of the RPs’ activities during the NRDA to infer that some of those 

activities were undertaken at the direction of the Trustees, even though the Administrative 

Record does not clearly document each instance when the RPs acted on behalf of the Trustees. 

Given the Trustee evidence supporting the RPs’ general participation in this assessment activity 

and the totality of the facts surrounding this claim, the NPFC also considered the absence of any 

evidence suggesting that the RPs engaged in specific activities for their own purposes instead of 

acting at the Trustees’ direction. 

With respect to the specific costs claimed by the RPs for these activities, the NPFC found that 

there were $9,826.25124 in KYL costs that were clearly not incurred on behalf of the Trustees or 

under their direction. These costs related to communications between KYL and The Swedish 

Club, the vessel’s insurer. To the extent the RPs engaged and relied upon the funding and 

participation of The Swedish Club during the course of the NRDA, such costs were incurred on 

 115 NPFC Claim Determination (J05003-OI03), dated September 22, 2017 116 Email from NOAA to Polaris, dated July 1, 2005 117 Email from NOAA to Polaris, dated November 22, 2006 118 Email from DOI to Polaris, dated February 24, 2006 119 Email from DOI to Polaris, dated June 8, 2006 120 Restoration Work Group Meeting Agenda for April 4, 2006 121 Selendang Ayu Oil Spill Natural Resource Damage Assessment Restoration Planning Trip Report: Unalaska, AK 

September 5-9, 2006 (October 30, 2006 draft) 122 Restoration Work Group Meeting Minutes for 11 July 2006 123 Selendang Ayu Cooperative Assessment & Restoration Planning Meeting Agenda for May 24, 2007 124 See Enclosure 3 to the Claim Determination for specific time entries denied
Page 25 of 47

the RPs’ behalf rather than directly in support of the Trustees’ NRDA. Also, costs incurred for 

communications between RPs’ counsel and RPs’ insurance company are a litigation cost that is 

not OSLTF compensable. 

Additionally, the NPFC found that there were $157.50 in KYL costs that were clearly not 

incurred on behalf of the Trustees or under their direction125. These costs related to subsistence

use, which as explained above, is not a part of NRDA. 

The NPFC determines that, based on (1) correspondence between the Trustees and the RPs, (2) 

the Trustee Plan, and (3) the Administrative Record for J05003-OI03, the remaining $177,014.99 

in the RPs’ costs are compensable in accordance with 33 C.F.R. §136.211(a) as reasonable 

trustee past assessment costs. 

General NRDA 

The RPs claimed $213,872.52 in general NRDA activities conducted during the preassessment 

phase, including participating in meetings with the NRDA Trustees, attending public meetings 

related to the NRDA, corresponding with the Trustees regarding the NRDA, and reviewing 

Trustees NRDA costs for reimbursement.126 As identified in the Trustee Plan, the Trustees 

claimed costs for similar activities under Trustee Coordination and Public Outreach, which 

include, but are not limited to127, funding to (1) participate in meetings, (2) review Trustee 

produced documents, and (3) engage the public in the NRDA.128 

The specific costs claimed by the RPs for General NRDA during the preassessment phase 

include the following:

a. $114,386.31 for Polaris personnel to travel to attend meetings with the Trustees, conduct 

background research on impacted resources, communicate with the Trustees regarding 

the NRDA, and review and reimburse Trustee NRDA costs. These costs were 

documented by invoices, proofs of payment, travel documentation, and statements of 

work;

b. $18,500 for The O’Brien’s Group (TOG) personnel to review and approve Trustee 

NRDA invoices for reimbursement. These costs were documented by invoices, proofs of 

payment, and statements of work; 

c. $6,548.71 for (The Swedish Club) to travel for a meeting with the 

Trustees to discuss the NRDA; These costs were documented by travel vouchers and 

proofs of payment; and

d. $74,437.50 for KYL attorneys to draft joint funding and participation agreements with 

Trustees, discuss NRDA with Trustees, coordinate reimbursements with Trustees, and 

discuss and coordinate NRDA activities with RPs contractors. These costs were 

documented by a description of work and time records. 

 

125 Time entry for on August 9, 2005 126 Claim Section I.B.3.j 127 The Trustees include a caveat in their Plan that the specific Trustee Coordination activities listed are 

representative of the type of costs incurred, but that anticipated costs are not limited to those activities specifically 

identified 

128 Trustee Plan, p. 5-2 

(b) (6) (b) (6)
Page 26 of 47

As defined by 15 C.F.R. 990.30, reasonable assessment costs include “administrative costs, legal 

costs, and other costs necessary to carry out this part... [And] costs associated with public 

participation”. Similar to the study specific costs previously discussed in the determination, an 

RPs’ general NRDA costs may be considered trustee costs if such costs were necessary to 

support the trustee’s NRDA and were associated with costs incurred at the trustees’ direction. 

Throughout the Plan and additional claim documentation129, the Trustees documented the 

significant participation of the RPs in the preassessment studies, including providing personnel 

to support field activities; funding the Trustees’ costs of the NRDA; directly paying for vessels 

and other field support costs of the preassessment studies; attending meetings with the Trustees 

to discuss the NRDA; reviewing and analyzing study results and drafting and/or commenting on 

reports documenting the preassessment; and identifying and developing restoration alternatives 

to restore damages from the oil spill. 

The NPFC finds that, based on the Trustee documentation in the Administrative Record, some of

the RP-incurred General NRDA costs were necessary to support the Trustee NRDA. When 

identifying which of the RPs actions were taken on behalf of the Trustees, the NPFC gave 

significant weight to the cooperative nature of the RPs’ activities during the NRDA to infer that 

some of those activities were undertaken at the direction of the Trustees, even though the 

Administrative Record does not clearly document each instance when the RPs acted on behalf of 

the Trustees. Given the Trustee evidence supporting the RPs’ general participation in the 

Trustees’ NRDA and the totality of the facts surrounding this claim, the NPFC also considered 

the absence of any evidence suggesting that the RPs engaged in specific activities for their own 

purposes instead of acting at the Trustees’ direction. 

With respect to the specific costs claimed by the RPs for these activities, Polaris served as the 

RPs’ primary NRDA consultant, helping plan, and directly participating in, much of the 

preassessment work conducted by the Trustees. Polaris also coordinated extensively with the 

Trustees and RPs to provide funding and other resources necessary for the Trustees’ NRDA. 

The NPFC confirmed that claimed travel costs related to meetings and/or preassessment studies 

that were initiated by the Trustees. 

Despite the above, NPFC determined that $56,294.24 of Polaris’ claimed costs of $114,386.31 

were clearly not incurred in support of the Trustees’ NRDA, on the Trustees’ behalf, or at their 

direction. First, there were $46,291.40130 in costs that were incurred prior to cooperative NRDA 

activities taking place between the RPs and the Trustees. As discussed above in the 2005 

Reference Beach Studies, while there were some communications exchanged prior to January 9, 

2005131, the Trustees had already begun conducting studies independently from the RPs and, 

likewise, the RPs were incurring costs conducting activities independently from the Trustees. 

Given that there were no cooperative NRDA activities taking place during this period, any 

Polaris costs during this period were not incurred at the Trustees’ request or on their behalf. 

Additionally, there were $5,951.38 in travel and administrative expenses that the NPFC was 

unable to identify and document because costs were not clearly allocated between the response 

 129 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, dated October 7, 2016 130 Invoice 1375 131 The date where Trustees agreed to being cooperative for the Beach Reference Studies 
Page 27 of 47

and the various preassessment activities.132 Lastly, Polaris claimed certain costs in the amount of 

$5,611.46 that, based on Trustee documentation in the record, were clearly not in support of the 

Trustees NRDA including costs for: meetings with the insurer133; travel and labor related to 

subsistence use work134; work related to “calculating for area of oil on landowners property” and 

“review landowner SUTZ segments”135; and travel for an “OPS” meeting with a re-insurer136. 

Claimed costs of $6,548.71 for representative of The Swedish Club are 

denied. To the extent that the RPs engaged and relied upon the funding and participation of The 

Swedish Club during the course of the NRDA, such costs were incurred on the RPs’ behalf 

rather than directly in support of the Trustees’ NRDA. These costs are not NRDA costs nor 

costs incurred for activities requested by the Trustees. 

KYL served as the primary representative of the RPs for the Selendang Ayu NRDA. They 

communicated and coordinated with the Trustees, assisted in acquiring and coordinating 

resources for the Trustees’ NRDA activities, and coordinated with the RPs’ contractors that 

provided technical support to the Trustees. With respect to the claimed costs of $74,437.50, the 

NPFC determined that there were $40,806.25 of claimed KYL costs that were clearly not 

incurred in support of the Trustees’ NRDA, nor incurred on the Trustees’ behalf or at their 

direction. 

First, there were $10,302.50137 in costs related to an independent audit of the indirect rate 

charged by NOAA. While the NPFC understands that some level of cost documentation review 

was necessary to issue reimbursement payments, the NOAA indirect rates charged were 

published in the Federal Register138. The Federal Register affirmed that the rates were 

developed in compliance with federal accounting standards, provided the names of two public 

accounting firms that had evaluated and approved NOAA’s indirect rates, and directed the public 

how to access the reports developed by the accounting firms explaining how they validated the 

rates. To the extent that KYL chose to conduct an independent audit of the indirect rate, 

including engaging Price Waterhouse Cooper139 to provide additional professional accounting 

review, such costs were clearly not incurred at the Trustee’s direction or on their behalf and were 

beyond the scope of the Selendang NRDA. 

Secondly, there were $4,795140 in costs related to reviewing and responding to bills issued to the 

RPs by the NPFC. When the RPs refused to pay certain NRDA costs, the Trustees sought and 

received payment from the NPFC for such costs. After paying these costs to the Trustees, the 

NPFC billed the RPs for these costs. The RPs costs related to these recovery efforts were clearly 

not incurred at the Trustees’ direction or on their behalf. While the subject costs related to the 

NRDA, the actual costs claimed by the RP are related to an NPFC cost recovery action, rather 

than in support of the Trustees’ NRDA. 

 

132 Invoice 1405 – $151.20; Invoice 1417 - $905.67; Invoice 1442 - $672.72; Invoice 1505 - $2,386.12; 

Invoice 1546 - $1,835.67 133 Invoice 1442 - $1480; Invoice 1732 - $780; Invoice 1775 - $390; Invoice 1843 - $390 134 Invoice 1505 - $1100.79; Invoice 1843 - $292.50 135 Invoice 1598 - $787.50 136 Invoice 1792 - $390.67 137 See Enclosure 3 to the Claim Determination for specific time entries denied 138 “Notice of Indirect Cost Rates for the Damage Assessment and Restoration Program for Fiscal Year 

2002”. Federal Register 68:193 (October 6, 2003) pgs. 57672-57673. 139 December 27, 2006 time entry for 140 See Enclosure 3 to the Claim Determination for specific time entries denied

(b) (6) (b) (6)
Page 28 of 47

Next, the RPs claimed $4,331.25141 in KYL costs that were incurred prior to the January 9, 2005 

date discussed above, which is the earliest possible date that cooperative NRDA efforts began 

between the Trustees and the RPs. Additionally, there were $15,911.25 in costs related to 

communications with The Swedish Club. To the extent the RPs engaged and relied upon the 

funding and participation of The Swedish Club during the course of the NRDA, such costs were 

incurred on the RPs’ behalf rather than directly in support of the Trustees’ NRDA. Also, costs 

incurred for communications between RPs’ counsel and RPs’ insurance company are a litigation 

cost that is not OSLTF compensable. 

Lastly, there were $5,466.25 in assorted costs that were clearly not incurred at the Trustees’ 

direction and/or on their behalf. These costs related to response issues, case settlement, 

subsistence, and other non-NRDA activities that were clearly not incurred at the Trustees’

direction nor necessary for the NRDA and cannot be considered reasonable trustee assessment 

costs142. 

The NPFC determines that, based on (1) correspondence between the Trustees and the RPs, (2) 

the Trustee Plan, and (3) the Administrative Record for J05003-OI03, the remaining $108,663.32

in the RPs’ costs are compensable in accordance with 33 C.F.R. §136.211(a) as past reasonable 

trustee assessment costs.

2. Adjudication Summary of RPs Incurred Costs for Restoration Planning 

Table 2 - RPs Incurred Costs for Restoration Planning

Activity Claimed Cost Approved Denied

Review of Preassessment Reports $121,868.75 $121,463.75 $405.00

Lingering Oil $695,213.73 $567,640.23 $127,573.50

Harlequin P450 $312,399.63 $262,032.10 $50,367.53

Rat Eradication $76,663.00 $0 $76,663.00

Oil Abatement $217,378.08 $216,298.08 $1,080.00

Kasatochi Island Restoration $1,117.50 $0 $1,117.50

Auklet Habitat Manipulation/Vegetation 

Removal $3,088,898.39 $0 $3,088,898.39

Seabird Mortality Estimates and 2010 

Beach reference Study $626,755.72 $94,358.83 $532,396.89

General NRDA $307,422.02 $179,897.59 $127,524.43

TOTAL $5,447,716.82 $1,441,690.58 $4,006,026.24

Review of Preassessment Data Reports

The RPs claimed $121,868.75 in costs related to reviewing and providing comments on the 

Trustees’ preassessment reports during the Restoration Planning phase – this is a continuation of 

the effort begun during the last month of the Preassessment Phase.143 As identified in the Plan, 

 141 See Enclosure 3 to the Claim Determination for specific time entries denied 142 See Enclosure 3 to the Claim Determination for specific time entries denied 143 Claim Section II.A.2
Page 29 of 47

the Trustees summarized the results of all preassessment activities in twelve reports that were

organized by study and posted on the FWS website.144 The Trustees drafted these reports as part 

of the work described in each individual resource category of the Plan. Ultimately, the 

preassessment reports served to not only document the various activities conducted by the 

Trustees and RP, but established a basis for the Trustees’ continued efforts to conduct additional 

assessment and restoration planning activities. 

The specific costs claimed by the RPs for costs related to reviewing preassessment data reports 

during the early Restoration Planning phase include the following: 

c. $94,192.50 for Polaris personnel to review, analyze, and conduct research regarding these 

reports. These costs were documented by invoices, time records, proofs of payment, and 

statements of work; 

d. $5,200.00 for Marzet personnel, specifically to review and comment on 

preassessment data reports of studies relevant to seabird mortality issues. These costs 

were documented by invoices, proofs of payment, and statements of work; 

e. $3,420 for Terrastat personnel to review the statistical methods and results presented in 

various preassessment data reports, prepare summary findings, and review other 

comments. The costs were documented by invoices, proofs of payment, and statements of 

work; 

f. $15,400 for Neff & Associates personnel to review various preassessment data reports, 

prepare comments, and prepare heavy fuel oil toxicity report. These costs were 

documented by invoices, proofs of payment, and statements of work; and

g. $3,656.25 for KYL attorneys to review the reports and coordinate activities with the 

Trustees and RP contractors. These costs were documented by a description of work and 

time records.

Throughout the Plan and additional claim documentation145, the Trustees documented the 

significant participation of the RPs in a large majority of activities that were discussed in the 

preassessment reports, which provided the RPs direct and in-depth knowledge of the assessment 

studies undertaken and the resulting analyses. The significant level of the RPs participation in 

the preassessment was reflected by the RPs co-authoring the preassessment report for the 2005 

vegetation study146. Additional correspondence establishes that the Trustees invited the RPs to 

participate in technical group meetings which were organized, in part, to finalize the 

preassessment reports.147 Agendas from the technical meetings confirm that the preassessment 

reports were part of joint discussions between the Trustees and RPs.148 Subsequent Trustee 

correspondence documents that the Trustees requested that the RPs complete review of the 

preassessment reports by the end of August 2007.149 

The NPFC finds that based on the Trustee documentation in the Administrative Record, the RPs 

were cooperatively participating with the Trustees in NRDA activities that the Trustees identified

as necessary to support the overall NRDA and fulfill their administrative obligations of 

 

144 Trustee Plan, p. 3-2 145 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, dated October 7, 2016 146 Rocque, D. and G. Erickson. 2008. Pre-assessment Data Report #1: Assessment of Potential Injuries to Nearshore 

Vegetation Communities on Unalaska Island following the Selendang Ayu Oil Spill. U.S. Fish and Wildlife Service, 

Anchorage, AK.

147 Email from DOI to Polaris, dated June 15, 2007 148 Selendang Ayu – Nearshore Resources Agenda for July 9, 2007; Selendang Ayu – Seabird Mortality Agenda for 

July 10, 2007

149 Email from DOI to RPs, dated September 5, 2007 
Page 30 of 47

documenting the results of their preassessment efforts. When identifying which of the RPs 

actions were taken on behalf of the Trustees, the NPFC gave significant weight to the 

cooperative nature of the RPs’ activities during the NRDA to infer that some of those activities 

were undertaken at the direction of the Trustees, even though the Administrative Record does not 

clearly document each instance when the RPs acted on behalf of the Trustees. Given the Trustee 

evidence supporting the RPs’ general participation in this assessment activity and the totality of 

the facts surrounding this claim, the NPFC also considered the absence of any evidence 

suggesting that the RPs engaged in specific activities for their own purposes instead of acting at 

the Trustees’ direction. 

 

With respect to the specific costs claimed by the RPs for these activities, the NPFC found that 

there were $405.00 in costs from Polaris toward the assessment of subsistence use losses, an 

activity that is not part of NRDA150. 

The NPFC determines that, based on (1) correspondence between the Trustees and the RPs, (2) 

the Trustee Plan, and (3) the Administrative Record for J05003-OI03, the remaining $121,463.75 

in the RPs’ costs are compensable in accordance with 33 C.F.R. §136.211(a) as reasonable 

trustee past assessment costs.

Lingering Oil Study

The RPs claimed $695,213.73 in costs to conduct a lingering oil study to support the assessment 

of injury to marine resources.

151 In 2008, the Trustees proposed conducting cooperative followup studies to determine the extent that oil remained within the spill area and, if it remained, 

whether it was in a location and form that was continuing to cause injuries to natural 

resources.152 In response to the Trustees request, the RPs agreed to cooperatively participate in 

and fund the Trustees’ studies. The Trustees’ produced a detailed study plan with input from the 

RP and relied on direct coordination and funding of the vessel charters from the RPs for the 

study. The RPs provided personnel to participate in the study, but the remainder of the study 

components (sample analysis and report generation) were largely conducted by the Trustees and 

Trustees’ contractors.

153

The specific costs claimed by the RPs for costs related to the lingering oil study include the 

following: 

a. $207,201.06 for Polaris personnel to help develop the study, coordinate and participate in 

the field activities, and coordinate development of a report upon completion of the study. 

These costs were documented by invoices, time records, travel vouchers, receipts, 

statements of work and proofs of payment; 

b. $11,050.00 for Exponent personnel to help develop the study design. Costs were 

documented by invoices, descriptions of work, and proofs of payment; 

c. $86,983.50 for NewFields Laboratory to provide analysis of NOAAs data and prepare an 

independent report. These costs were documented by invoices, descriptions of work, and 

proofs of payment; 

 

150 Exhibit 20. Polaris Invoice 2115. description of work on 6/7/2007 includes “create PAH subsistence 

results files” – subsistence loss is not a component of natural resource damages. 151 Claim Section II.A.2.c 152 Trustee Plan, pp. 3.11-3.12 153 M/V Selendang Ayu 2008 Study Plan for Assessment of Remaining Oil, 21 pages. 

(b) (6)
Page 31 of 47

d. $375,463.54 for Gallagher Marine Services to coordinate and provide vessel charter 

services and mission support. These costs were documented by invoices, personnel time 

records, descriptions of work, receipts, contracts/charters, and proofs of payment; and

e. $14,515.63 for KYL attorneys to coordinate the RPs’ activities with Trustees and 

contractors and arrange charter of the vessel and land access. These costs were 

documented by descriptions of work and time records.

The NPFC previously determined that conducting the lingering oil survey was appropriate for 

the incident and provided additional funding to the Trustees to finalize the assessment of impacts 

to marine resources using the results of this study.154 The RPs’ cooperative efforts for the study 

are documented in the Trustees’ study plan155, Trustee Assessment Plan156, and Trustee claim 

documentation157. 

The NPFC finds that, based on the Trustee documentation in the Administrative Record, the RPs

were cooperatively participating with the Trustees in NRDA activities that the Trustees identified 

as necessary to support the assessment of marine injuries. When identifying which of the RPs 

actions were taken on behalf of the Trustees, the NPFC gave significant weight to the 

cooperative nature of the RPs’ activities during the NRDA to infer that some of those activities 

were undertaken at the direction of the Trustees, even though the Administrative Record does not 

clearly document each instance when the RPs acted on behalf of the Trustees. Given the Trustee 

evidence supporting the RPs’ general participation in this assessment activity and the totality of 

the facts surrounding this claim, the NPFC also considered the absence of any evidence 

suggesting that the RPs engaged in specific activities for their own purposes instead of acting at 

the Trustees’ direction. 

With respect to the specific costs claimed by the RPs for these activities, the NPFC determined 

that certain costs claimed by the RPs were duplicative of Trustee activities and were neither 

requested nor directed by the Trustees. Specifically, the NPFC found costs incurred by 

NewFields Laboratory158 (totaling $86,983.50 for independent data analysis and generation of an 

independent report on behalf of the RP), and those costs incurred by Polaris159 (totaling 

$34,565.00) and KYL160 ($1,393.75) for activities conducted after finalization of the Trustee’s 

report in early 2010161 did not support, and were not necessary for, the Trustees’ NRDA.

162 

Additionally, there were $4,631.25163 in costs related to communications between KYL and The 

Swedish Club, the vessel’s insurer. To the extent the RPs engaged and relied upon the funding 

 154 NPFC Claim Determination (J05003-OI03), dated September 22, 2017 155 M/V Selendang Ayu 2008 Study Plan for Assessment of Remaining Oil, 21 pages. 156 Trustee Plan, pp. 3-11 - 3-12 157 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, dated October 7, 2016 p. 1 158 Claim, Exhibits 31 and 32. Trustees’ study plan and report indicate data analysis and report generation would be 

completed by Trustee contractors. Newfield’s data analysis and independent report are duplicative, were not 

requested or directed by the Trustees, and did not contribute to the Trustees’ assessment. 159 Claim, Exhibits 20-22 (invoice 2722 onward) and 31 160 Claim, Exhibit 36 161 Assessment of Remaining Oil from the M/V Selendang Ayu Spill as of 2008. March 2010. M/V Selendang Ayu

NRDA Administrative Record IV.B.1.h

162 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, Response to NPFC Item #8, 

Section I.A, pp 1-2 references the duplicative analysis and reports generated by the RP beyond what was described 

in the Trustees’ study plan

163 See Enclosure 3 to the Claim Determination for specific time entries denied 
Page 32 of 47

and participation of The Swedish Club during the course of the NRDA, such costs were incurred 

on the RPs’ behalf rather than directly in support of the Trustees’ NRDA. Also, costs incurred 

for communications between RPs’ counsel and RPs’ insurance company are a litigation cost that 

is not OSLTF compensable. 

The remaining $567,640.23 in costs claimed for Exponent,164 Polaris,165 KYL,166 and GMS167

are associated with vessel charter and trip coordination, sampling support,168 study design and 

review of the draft report. These costs were determined to be related to NRDA activities that 

were necessary to support the Trustee-led Lingering Oil Study. 

The NPFC determines that, based on (1) correspondence between the Trustees and the RPs, (2) 

the Trustee Plan, and (3) the Administrative Record for J05003-OI03, $567,640.23 in the RPs’

costs are compensable in accordance with 33 C.F.R. §136.211(a) as reasonable trustee past 

assessment costs.

Harlequin P450 Study

The RPs claimed $312,399.63 in costs related to the 2008 study of chronic exposure of oil on 

harlequin ducks to support the assessment of injury to birds.169 The 2008 study was a 

continuation of assessment work conducted by both the Trustees and the RPs in 2005 and 

2006170 to assess impacts to seabirds from chronic exposure to residual oil. The Trustees 

proposed171, and the RPs agreed to fund, another season of sampling that was conducted in 2008. 

During the 2008 survey, they captured live ducks, took biopsies from their livers, and then 

conducted chemical analyses to study PAH exposure.172

The specific costs claimed by the RPs for costs related to the harlequin P450 study include the 

following:

a. $60,844.22 for Polaris for personnel and subcontractor support to participate in field 

activities/sample collection, study design, and analysis of results. These costs were 

documented by invoices, time record, travel vouchers, receipts, statement of work, and 

proofs of payment;

b. $16,930.00 for NewFields Laboratory to conduct data analysis and produce an 

independent report. These costs were documented by invoices, descriptions of work, and 

proofs of payment; 

c. $857.48 for TerraStat to provide statistical analysis of study data. These costs were 

documented by invoices, descriptions of work, and proofs of payment;

d. $13,853.55 for Biota Pacific to provide veterinary technician support for sample 

collection. These costs were documented by invoices, receipts, travel vouchers, 

descriptions of work, and proofs of payment;

 164 Claim, Exhibits 31 and 38 165 Claim, Exhibits 20-22 and 31 166 Claim, Exhibit 31 and 36 167 Claim, Exhibits 24-25 168 Michel, J., Z. Nixon, and M.G. Carls. 2010. Remaining Oil Report, Chapter 1: Assessment of remaining oil from 

the M/V Selendang Ayu Spill as of 2008. 9 pp. 169 Claim Section II.A.2.b 170 Costs related to the 2005 and 2006 surveys are discussed previously in the determination 171 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, Response to NPFC Item #8, 

Section I.c, p. 4-5 172 Trustee Plan, pp. 3-20 - 3-21
Page 33 of 47

e. $4,700 for Neff & Associates to provide technical scientific analysis of study results. 

These costs were documented by invoices, descriptions of work, and proofs of payment;

f. $199,655.00 for Gallagher Marine Services to coordinate and provide vessel charter 

services and mission support. These costs were documented by invoices, personnel 

timesheets, descriptions of work, receipts, contracts/charters, and proofs of payment; and

g. $15,559.38 for KYL for attorneys to coordinate vessel and support study design. These 

costs were documented by descriptions of work and timesheets.

The NPFC previously determined that conducting the P450 survey was appropriate for the 

incident and provided additional funding to the Trustees to finalize the assessment of impacts to 

birds using the results of this study. The RPs’ cooperative efforts for the study are documented 

in the Trustees’ Assessment Plan173 and Trustee claim documentation174. 

The NPFC finds that, based on the Trustee documentation in the Administrative Record, the RPs

were cooperatively participating with the Trustees in NRDA activities that the Trustees identified 

as necessary to support the assessment of birds. When identifying which of the RPs actions were 

taken on behalf of the Trustees, the NPFC gave significant weight to the cooperative nature of 

the RPs’ activities during the NRDA to infer that some of those activities were undertaken at the 

direction of the Trustees, even though the Administrative Record does not clearly document each 

instance when the RPs acted on behalf of the Trustees. Given the Trustee evidence supporting 

the RPs’ general participation in this assessment activity and the totality of the facts surrounding 

this claim, the NPFC also considered the absence of any evidence suggesting that the RPs 

engaged in specific activities for their own purposes instead of acting at the Trustees’ direction. 

With respect to the specific costs claimed by the RPs for these activities, the NPFC finds that 

certain costs claimed by the RPs were clearly not incurred at the request of the Trustees, directed 

by the Trustees, or necessary for the Trustees’ NRDA. According to the Trustees175, the RPs

added a mussel collection and analysis component to the study to evaluate paralytic shellfish 

poisoning, an activity which the Trustees did not participate, request, nor direct the RPs to 

conduct. The NPFC determined that costs incurred by NewFields Laboratory176 (totaling 

$16,930.00), certain costs incurred by Biota Pacific177 (totaling $311.45), and certain costs 

incurred by Polaris178 (totaling $24,269.83) related to the RPs’ mussel PSP study. Therefore, the 

NPFC found that costs in the amount of $41,511.28 are not compensable as reasonable trustee 

assessment costs. 

Additionally, there were $8,856.25179 in costs related to communications between KYL and The 

Swedish Club, the vessel’s insurer. To the extent the RPs engaged and relied upon the funding 

and participation of The Swedish Club during the course of the NRDA, such costs were incurred 

on the RPs’ behalf rather than directly in support of the Trustees’ NRDA. Also, costs incurred 

 173 Trustee Plan, pp. 3-20 - 3-21 174 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, Response to NPFC Item #8, 

Section I.c, p. 4-5 175 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, Response to NPFC Item #8, 

Section I.c, pp-4-5 176 Claim, Exhibits 31 and 32, Newfield Invoices 21002 and 21357 177 Claim, Exhibit 34. Invoice 10162 includes $311.45 for mussel sampling equipment 178 Claim, Exhibits 20-22. Invoices 2218, 2238, 2261, and 2278 include costs related to PSP study. Invoice 2397, 

2418, and 2431 includes costs for contract not adequately documented and which appears to be a duplicative 

analysis of trustees’ report. 

179 See Enclosure 3 to the Claim Determination for specific time entries denied 
Page 34 of 47

for communications between RPs’ counsel and RPs’ insurance company are a litigation cost that 

is not OSLTF compensable. 

The remaining $262,032.10 in costs claimed for TerraStat,180 Biota Pacific,181 Neff & 

Associates,182 Polaris,183 KYL,184 and GMS185 are related to study design, vessel charter costs, 

and review of study results. These costs were determined to be related to NRDA activities that 

were necessary to support the Trustee-led Harlequin P450 Study. 

The NPFC determines that, based on (1) correspondence between the Trustees and the RPs, (2) 

the Trustee Plan, and (3) the Administrative Record for J05003-OI03, $262,032.10 in the RPs’

costs are compensable in accordance with 33 C.F.R. §136.211(a) as reasonable trustee past 

assessment costs.

Rat Eradication Feasibility Study

The RPs claimed costs of $76,630.00 to conduct preliminary analysis of a proposed feasibility 

project to study rat eradication as a potential restoration alternative.

186 The Trustees identified rat 

eradication as a desirable restoration project to restore injuries to birds and developed a study 

plan to implement a feasibility study on Kiska Island187. The Trustees requested funding from 

the RPs to cooperatively conduct the feasibility study together. 

The specific costs claimed by the RPs for costs related to the Kiska Island Rat Eradication 

feasibility assessment include the following:

a. $25,520.82 for Polaris personnel to work with subject matter experts to review and 

analyze rat eradication projects conducted on other islands, and to assess the practicality 

of the proposed project. These costs were documented by invoices, time records, travel 

vouchers, receipts, statements of work and proofs of payment; 188

b. $7,475.22 for Everett & Associates personnel to review and analyze reports on rat 

eradication project on Rat Island and meet with the Trustees to discuss findings. Costs 

were documented by invoices, time record, travel voucher, receipts, descriptions of work, 

and proofs of payment; 189

c. $38,431.96 for personnel to review and analyze published scientific 

literature on rat predation on auklet eggs and chicks on Kiska Island and meet with the 

Trustees to discuss findings. Costs were documented by invoices, time record, travel 

voucher, receipts, descriptions of work, and proofs of payment; 190

 

180 Claim, Exhibit 31 and 33 181 Claim, Exhibit 31 and 34 182 Claim, Exhibit 31 and 35 183 Claim, Exhibits 20-22 and 31 184 Claim, Exhibit 31 and 36 185 Claim, Exhibits 24, 25 and 31 186 Claim, Section II.A.2.e, pp. 44-46 187 Trustee Plan, pp. 4-5 to 4-7 188 Claim, Exhibits 20-22 and 31 189 Claim, Exhibits 31 and 40 190 Claim, Exhibits 31 and 41

(b) (6)
Page 35 of 47

d. $5,235.00 for KYL for attorneys to support trustee and contractor coordination and 

restoration credit research. These costs were documented by descriptions of work and 

time record. 191

Trustee documentation provides clear evidence that the activities conducted by the RPs were not 

conducted at the direction of the Trustees or on their behalf, nor were they necessary for the 

Trustees’ NRDA. The Trustees had already begun focusing on rat eradication as a restoration 

alternative and engaged a contractor to develop a proposal for a feasibility study to further study 

the alternative. The RPs engaged its own contractors to provide additional review of the 

proposal and then independently decided to submit the proposal to ITOPF to provide even 

further review.192 Furthermore, the RPs declined to fund the feasibility study for rat eradication, 

which remains one of the Trustees’ favored alternatives in their current restoration planning 

efforts.193 Accordingly, claimed costs in the amount of $76,630 cannot be considered reasonable 

trustee assessment costs and are therefore denied. 

Additionally, costs related to communications between KYL and The Swedish Club, the vessel’s 

insurer, are denied. To the extent the RPs engaged and relied upon the funding and participation 

of The Swedish Club during the course of the NRDA, such costs were incurred on the RPs’

behalf rather than directly in support of the Trustees’ NRDA. Also, costs incurred for 

communications between RPs’ counsel and RPs’ insurance company are a litigation cost that is 

not OSLTF compensable. 

Oil Abatement Study

The RPs claimed costs of $217,378.08 to conduct a feasibility study of various oil abatement 

projects that would provide restoration for injuries to marine resources. In 2009, the Trustees 

requested, and the RPs agreed to fund, a cooperative feasibility study to identify and evaluate 

potential oil abatement projects (i.e., projects that would remove existing oil in the environment 

and/or prevent future releases).194 The feasibility study included a literature review to identify 

candidate projects and preliminary scaling calculations for several potential restoration projects.

The specific costs claimed by the RPs for costs related to the Oil Abatement Study include the 

following:

a. $99,039.04 for Polaris personnel to coordinate project activities, collect and evaluate 

alternatives, and meet with Trustees. These costs were documented by invoices, time 

records, travel vouchers, receipts, statements of work and proofs of payment; 195

b. $17,440.00 for NewFields Laboratory to conduct a study and prepare a report on the 

benefits of removing creosote pilings and oil abatement. These costs were documented by 

contractor cost sheets and proof of payment; 196

c. $99,377.79 for Oasis Environmental personnel to conduct the oil abatement project 

feasibility study. These costs were documented by a contract scope of work, cost sheets, 

 191 Claim, Exhibits 31 and 36 192 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, Response to NPFC Item #8, 

Section I.c, p. 4-5 193 Id. 194 Trustee Plan, pp 4-3 to 4-5 195 Claim, Exhibits 20-22 and 31 196 Claim, Exhibit 31 and 32
Page 36 of 47

deliverable, personnel and task schedules, travel and supply expense details, and proofs 

of payment; 197

d. $1,521.25 for KYL attorneys to execute contracts and coordinate with the project 

management team. These costs were documented by descriptions of work and time 

records. 198

The RPs’ cooperative efforts for the study are documented in the Trustees’ Assessment Plan199

and claim documentation200. The Trustees and the RPs’ contractors worked together to conduct 

the study and jointly completed a draft final report of the Oil Abatement Study findings in 2012, 

with the RPs’ efforts to support the Trustees’ study continuing even after its liability limitation 

has been granted.

201 

The NPFC finds that, based on the Trustee documentation in the Administrative Record, the RPs

were cooperatively participating with the Trustees in NRDA activities that the Trustees identified 

as necessary to support restoration planning efforts. When identifying which of the RPs actions 

were taken on behalf of the Trustees, the NPFC gave significant weight to the cooperative nature 

of the RPs’ activities during the NRDA to infer that some of those activities were undertaken at 

the direction of the Trustees, even though the Administrative Record does not clearly document 

each instance when the RPs acted on behalf of the Trustees. Given the Trustee evidence 

supporting the RPs’ general participation in this assessment activity and the totality of the facts 

surrounding this claim, the NPFC also considered the absence of any evidence suggesting that 

the RPs engaged in specific activities for their own purposes instead of acting at the Trustees’ 

direction. 

With respect to the specific costs claimed by the RPs for these activities, there were $1,080202 in 

costs related to communications between KYL and The Swedish Club, the vessel’s insurer. To 

the extent the RPs engaged and relied upon the funding and participation of The Swedish Club 

during the course of the NRDA, such costs were incurred on the RPs’ behalf rather than directly 

in support of the Trustees’ NRDA. Also, costs incurred for communications between RPs’

counsel and RPs’ insurance company are a litigation cost that is not OSLTF compensable. 

The NPFC determines that, based on (1) correspondence between the Trustees and the RPs, (2) 

the Trustee Plan, and (3) the Administrative Record for J05003-OI03, the remaining $216,298.08 

in the RPs’ costs are compensable in accordance with 33 C.F.R. §136.211(a) as reasonable 

trustee past assessment costs.

Auklet Habitat Manipulation - Kasatochi Island Restoration

The RP claimed costs of $1,117.50 to evaluate a habitat manipulation project that would restore 

injuries to auklets.203 In November 2009, the RPs conducted preliminary analysis of a feasibility

 197 Claim, Exhibits 31 and 42 198 Claim, Exhibits 31 and 36 199 Trustee Plan, pp 4-3 to 4-5 200 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, Response to NPFC Item #8, 

Section 11.A, pp. 5-6 201 Id. 202 See Enclosure 3 to the Claim Determination for specific time entries denied 203 Claim, Section II.A.2.d, pp. 43-44
Page 37 of 47

project to determine if removing volcanic ash from auklet nesting sites on Kasatochi Island 

would increase auklet breeding. 

The specific costs claimed by the RPs related to the Kasatochi Island Study include the 

following:

a. $577.50 for Everett & Associates personnel to coordinate and draft the project proposal. 

These costs were documented by an invoice, time record, and proof of payment; 204

b. $540.00 for a KYL attorney to coordinate the proposed project with the RP contractor. 

These costs were documented by descriptions of work and time record.205

Trustee documentation evidences that the RPs identified and proposed this feasibility project at 

their own initiation.206 There is nothing in the record that indicates this project was pursued by 

the RPs at the request and/or direction of the Trustees, nor is there documentation indicating a 

feasibility project for this restoration alternative would have been pursued by the Trustees in the 

absence of the RPs’ own instigation and self-funding. Additionally, the RPs incurred scoping 

costs prior to determining whether the land manager for Kasatochi Island would even permit 

such a project – ultimately, the land manager rejected the RPs’ proposal to conduct such a 

project.

207

The RPs may spend funds on any number of activities related to a NRDA, but those costs do not 

automatically become Trustee costs, even if there is communication with the Trustees regarding 

the activities. As such, the NPFC found that these costs were clearly not incurred on the behalf 

of the Trustees or at the Trustees’ direction. Nor is there any evidence indicating that these costs 

were necessary to support the Trustee NRDA. Accordingly, claimed costs in the amount of 

$1,117.50 cannot be considered reasonable trustee assessment costs and are therefore denied. 

Auklet Habitat Manipulation – Vegetation Removal Pilot Study

The RPs claimed costs of $3,088,898.39 to conduct a pilot project to evaluate vegetation 

manipulation as an alternative to restore injuries to auklets.208 In April 2009, the RPs proposed a 

study to assess whether the removal of vegetation from auklet breeding colonies on Gareloi 

Island209 would increase suitable nesting sites for those colonies.210 The study was conducted 

during the summers of 2009, 2010, and 2011211 and results of the study indicated that restoration 

benefits of vegetation removal were difficult to quantify and that a large-scale project using the 

same methods would not be allowed on the island because of Refuge land management 

policies212. 

 204 Claim, Exhibits 31 and 40 205 Claim, Exhibits 31 and 36 206 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, Response to NPFC Item #8, 

Section 11.B, p. 6

207 Letter from FWS to RPs, dated December 7, 2009 208 Claim Section II.A.2.f 209 The island is part of the Alaska Maritime National Wildlife Refuge 210 Proposal from Responsible Party to evaluate habitat restoration at Gareloi Island, April 24, 2009. Selendang Ayu

NRDA Administrative Record, IV.C.3.a. 

211 Trustee Plan, pp. 4-7 to 4-8 212 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, Response to NPFC Item #8, 

Section 11.B, p. 6
Page 38 of 47

The specific costs claimed by the RPs for costs related to the Vegetation Removal Pilot Study 

include the following: 

a. $143,876.56 for Polaris personnel to assist with developing the study protocol, executing 

the study, interpreting study data, preparing annual reports, and discuss study results with 

the Trustee. These costs were documented by invoices, time records, travel vouchers, 

receipts, statements of work and proofs of payment; 213

b. $84,032.04 for a seabird biologist, to provide technical support and 

advice on the project along with data analysis and report generation. These costs were 

documented by invoices, descriptions of work, travel expenditures, receipts, and proofs 

of payment;214

c. $37,856.24 for seabird biologist, to develop and execute the study, analyze 

data, generate reports, and meet with and/or coordinate with the RP and Trustees.215

These costs were documented by invoices, descriptions of work, travel expenditures, 

receipts, and proofs of payment; 

d. $34,164.19 for a Kusko Consulting auklet biologist to assist in the design of the 

vegetation removal project and to evaluate similar projects on additional islands. These 

costs were documented by invoices, descriptions of work, travel expenditures, receipts, 

and proofs of payment;216

e. $2,725,805.61 for Gallagher Marine Services costs. Between 2009 and 2011, GMS 

provided logistical support and services for the study. The study costs paid by GMS in 

2009, 2010 and 2011 were $745,610.95, $1,136,329.43, and $843,865.23 respectively. 

Costs included vessel charter hire, surveys, insurance costs, costs of equipment and 

supplies used in the study, labor costs of persons performing the field studies, and GMS 

fees and costs for project administration. These costs were documented by invoices, 

statements of work, receipts, contracts/charters, travel expenditures, summary 

spreadsheets, and proofs of payment; 217

f. $63,163.75 for a KYL218 attorney to communicate with Trustees’, review contracts and 

vessel charters, and coordinate with the RP and their consultants. These costs were 

documented by descriptions of work and time records. 219

The Trustees concede that they discussed the project with the RPs and shared their concerns 

regarding the project.

220 However, there is nothing in the record that indicates this project was 

conducted at the request and/or direction of the Trustees, nor is there documentation indicating 

the project would have been pursued by the Trustees in the absence of the RPs’ own instigation 

and self-funding. Documentation reflects that the RPs identified, proposed, developed, and 

conducted this study at their own initiation. The Trustees had previously identified a rat 

eradication project as their preferred alternative to compensate for bird injuries221 and the RPs’

lead technical consultant had agreed with the Trustees that such a project would be ecologically 

and cost effective222. However, the RPs later became concerned about the cost of a rat 

 

213 Claim, Exhibits 20-22 and 31 214 Claim Exhibits 31, 37, and 41 215 Claim, Exhibits 31, 37 and 45 216 Claim, Exhibits 31 and 44 217 Claim, Exhibits 24, 25, 31, and 39 218 Claim exhibits 31 and 36 219 Claim, Exhibits 31 and 36 220 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, 2016 Response to NPFC Item 

#8, Section 11.B, p. 6

221 Id. 222 Email from Polaris to RPs, dated February 7, 2005 

(b) (6) (b) (6)
Page 39 of 47

eradication project and instead wanted to find a cheaper alternative223, as well as expressing

concerns about non-target species mortality224. The Trustees maintained that they, the public, 

and NGOs were satisfied with the rat eradication project, but if the RPs wanted to pursue another 

alternative they needed to identify it themselves. 

While the Trustees were open to considering vegetation removal as an alternative, they expressed 

skepticism from the beginning about the study225, documented extensive concerns to the RPs

about the vegetation project226, and informed the RPs prior to beginning the study that “they 

were unable to determine whether the feasibility study will effectively address the issues that 

need to be resolved for the trustees to determine whether habitat manipulation would be a 

feasible restoration project.”227 Despite the Trustees significant reservations, the RPs proceeded 

with field work in 2009 and informed the Trustees that they would not be able to effectively 

address the Trustees’ concerns until after completion of both the 2009 and 2010 work.228

Correspondence states that the Trustees initially only agreed to cooperate in the vegetation study

in order to acquire funding from the RPs to conduct a feasibility project studying their preferred 

rat eradication alternative229. Further correspondence indicates the RPs planned on proceeding

with the habitat feasibility project without cooperation from the Trustees, only finding out after 

the initial project stages had begun that the Trustees were willing to conduct the activity

“cooperatively”.230 While the Trustees did discuss study design and results with the RPs, the 

Trustees continued to express significant concerns with the study and its results throughout the 

project.231 

15 C.F.R. §990.54(c) provides that studies232 to evaluate the feasibility and likelihood of 

restoration alternatives should only be implemented when, in the trustees’ judgement, the project 

is likely to provide information useful in evaluating restoration alternatives233 and can be 

conducted at a reasonable time cost and in a reasonable timeframe. Based on the significant 

amount of Trustee skepticism and criticism found in the Administrative Record for this study 

from its inception, it is clear that this project did not meet the standard of likely providing useful 

information in evaluating restoration alternatives. Furthermore, there is no basis to consider the 

cost and timeframe of the project reasonable. The project spanned over three years of study and 

came at a costs representing a significant proportion of the entire NRDA. Notably, the cost of 

the feasibility study preferred by the Trustees’ to evaluate rat eradication would have cost, at 

most ~$600,000, and they were considering feasibility project options for as low as ~$90,000.234 

While the Trustees may have been considering habitat manipulation as a restoration alternative, 

there is no evidence that they needed or desired to implement a study such as the one conducted 

by the RPs; especially at the considerable cost incurred by the RPs. As such, the NPFC found 

 223 Memorandum from the RPs to NPFC, dated May 21, 2020 224 Id. 225 Email from DOI to RPs, dated March 18, 2009 226 Trustee Question & Concerns.8-12-09 227 Email from DOI to RPs, dated August 3, 2009 228 Email from Polaris to DOI, dated August 11, 2009 229 Email from DOI to RPs, dated June 5, 2009 230 Email from RPs to DOI, dated June 29, 2009 231 Email from DOI to RPs, dated March 11, 2010 232 Referred to as “pilot projects” 233 Specifically the evaluation criteria in 15 C.F.R. 990.54(a) 234 Feasibility assessment for the removal of introduced Norway rats from Kiska Island: a proposal; February 2009
Page 40 of 47

that the costs of $3,088,898.39 incurred by the RPs were clearly not incurred at the direction of 

the Trustees or on the Trustees behalf. Nor were such costs reasonable or necessary for the 

Trustees’ NRDA. Ultimately, as identified by the Trustees from the beginning, the results from 

the study did not provide information useful to their evaluation of restoration alternatives. 

Accordingly, claimed costs in the amount of $3,088,898.30 cannot be considered reasonable 

trustee assessment costs and are therefore denied. 

2010 Reference Beach Study and Seabird Mortality Estimates

The RPs claimed costs of $626,755.72 to estimate seabird mortality and to conduct a reference 

beach study to assist in their mortality estimate.

235 As described previously, early in the NRDA 

the Trustees identified the BBM as their preferred method to quantify injury to seabirds from 

direct oiling.

236 The Trustee and RPs cooperatively conducted reference beach studies237 in 2005 

to provide site specific data to use as inputs for the BBM. 

In 2007, the Trustees and RPs engaged in cooperative discussion involving the interpretation of 

bird injury data, including the results of the 2005 reference beach studies.238.

239 The Trustees’ 

directed their technical expert to proceed with the data from the studies and calculated a 

preliminary estimate of injury with the BBM. The draft technical report of the Trustees’ BBM 

was shared with the RPs. The RPs disagreed with the analysis and results of the Trustees’ BBM. 

In response, the RPs planned a 2009 aerial survey to detect auklet locations, conducted a separate 

set of reference beach studies in 2010, and developed its own model to estimate seabird 

mortality.

240 

The specific costs claimed by the RPs related to the 2010 Reference Beach Study and Seabird 

Mortality estimates include:

a. $131,504.35 for Polaris personnel to coordinate with the Trustees, provide input and 

review of the Trustees’ BBM, bird feather chemistry, 2009 overflight, 2010 reference 

Beach Study, and development of the RPs’ BBM. These costs were documented by 

invoices, time records, travel vouchers, descriptions of work and proofs of payment; 

b. $23,081.64 for Everett & Associates personnel to provide advice and technical assistance 

to the RP on seabird mortality estimates. These costs were documented by invoices, time 

record, travel voucher, receipts, descriptions of work, and proofs of payment;

c. $33,347.50 for NewFields Laboratory personnel and analytical costs to analyze oiled bird 

feathers, independently review the trustees’ draft report, and prepare a separate report on 

behalf of the RP. These costs were documented by invoices, descriptions of work, and 

proofs of payment; 

d. $98,015.55 for Marzet personnel to provide technical review and advice related to the 

Trustees’ BBM, the RPs’ BBM, the 2010 Reference Beach Study, and the RPs’ planned 

 

235 Claim Section II.A,2.h 236 Trustee Plan, pp. 3-16 to 3-19 237 Studies assessing carcass deposition rate, carcass persistence, searcher efficiency, and background mortality 238 The Trustees report that the results of the background bird mortality study were complicated by the presence of 

oiled birds (the study was conducted at an unoiled reference beach site, thus there should not have been any oiled 

birds found in the study)

239 Enclosure G of Trustee Additional Information Response for Claim N10036J05003-OI03, dated October 7, 2016, 

p 3.

240 Proposed Bird Background Mortality Study in the Region of the Selendang Ayu Grounding, Unalaska Island,

 Prepared By:

(b) (6)

, 2010, 2 pages
Page 41 of 47

2009 overflight. These costs were document by invoices, travel vouchers, statements of 

work proofs of payment; 

e. $10,596.10 for to coordinate the 2009 aerial survey. These costs were 

documented by an invoice, travel expenses, statement of work, and proof of payment; 

f. $288,511.83 for Gallagher Marine Services to coordinate and provide vessel charter 

services and mission support for the 2010 Reference Beach Study. These costs were 

documented by invoices, personnel time records, descriptions of work, receipts, 

contracts/charters, and proofs of payment; and

f. $41,698.75 for KYL attorneys to coordinate with the Trustees, coordinate with the RPs 

and the RPs’ contractors, and review contracts. These costs were documented by 

descriptions of work and time records. 

The Trustees did not direct the RPs to conduct the 2010 Reference Beach study or endorse it as 

something that would provide more useful data than was obtained in 2005; nor would the 

Trustees have pursued many of the additional activities related to estimating sea bird 

mortality.241 Specifically, the Trustees did not request or direct (1) development of a separate 

BBM from that prepared by the Trustees, (2) a second field study of background mortality in 

2010, (3) a planned, but aborted, overflight of seabird rafting locations, (4) or and oil source 

analysis of oiled feathers from previously collected carcasses. Costs incurred specific to these 

activities include: $23,081.64 for Everett & Associates242, $33,347.50 for NewFields 

Laboratory243, $60,308.79 for Marzet244, $10,596.10 for 245, 93,316.03 for Polaris246, 

$16,122.50 for KYL247, and $288,511.83 for GMS248. The NPFC found that these costs, totaling 

$525,284.39 were clearly not incurred at the direction of the Trustees or on the Trustees behalf. 

The RPs may spend funds on any number of activities related to a NRDA, but those costs do not 

automatically become trustee costs, even if the activities are discussed with the Trustees. As 

such, costs in the amount of $525,284.39 are not considered reasonable trustee assessment costs. 

 

241 Enclosure G of Trustee Additional Information Response for Claim N10036J05003-OI03, dated October 7, 2016, 

pp. 2-3 242 Claim, Exhibit 31, 37, and 40. Everett & Associates incurred expenses of $23,081.64 for this activity support 

development of the RPs’ BBM and 2010 Reference Beach Study

243 Claim, Exhibits 31 and 32. NewFields Laboratory expenses of $33,347.50 for this activity support analysis of and 

interpretation of oiled bird feathers.

244 Claim, Exhibit 23 and 31. Marzet Invoices MZ2009-4 expenses of $15,808.77 include activities associated with 

the 2009 overflight and MZ2009-7 and MZ2010-1,4, and 6 expenses of $44,500.02 include activities related to the 

2010 beach reference study and the RPs’ separate BBM

245 Claim, Exhibits 31 and 46. expenses of $10,596.10 support the 2009 overflight. 246 Claim, Exhibit 20-22 and 31. Invoice 2117 - $340.00 of work described for includes subsistence (nonNRD); Invoice 2153 – $892.50 of work described for includes TPC activities (non-NRD); Invoice 2397 – 

$210.00 of work described for includes bird feather chemistry related activity (denied activity); Invoice 

2477 - $5,050.00 of work includes preparation for 2009 overflight (denied activity); Invoice 2589 - $735.00 of work 

described for include study plan for RPs’ BBM (denied activity); and Invoices 2611 onward - $86,088.53 

for activities specifically related to the 2010 reference beach study and RPs’ BBM (denied activities).

247 Claim, Exhibits 31, 36 and 37. The NPFC denies a total of $16,122.50 of KYL costs: Invoice 218503 - $1,260.00 

activities described include Chernofski reference beach study (denied activity); Invoice 210391 - $3,510.00 

activities described include coordination of 2009 aerial survey (denied activity); Invoice 216679-247181 - 

$11,352.50 activities described include 2010 Reference Beach study and RPs’ BBM (denied activities).

248 Claim, Exhibits 24, 25, 31 and 39. NPFC denies the totality of Gallagher Marine Services costs of $288,511.83 in 

support the 2010 Reference Beach Study

(b) (6) (b) (6) (b) (6) (b) (6) (b) (6) (b) (6) (b) (6)
Page 42 of 47

Additionally, there were $7,112.50249 in costs related to communications between KYL and The 

Swedish Club, the vessel’s insurer. To the extent the RPs engaged and relied upon the funding 

and participation of The Swedish Club during the course of the NRDA, such costs were incurred 

on the RPs’ behalf rather than directly in support of the Trustees’ NRDA. Also, costs incurred 

for communications between RPs’ counsel and RPs’ insurance company are a litigation cost that 

is not OSLTF compensable. 

The remaining costs were incurred for data analysis, technical review, and cooperative 

discussions during the development of the Trustees’ BBM and the review period of the Trustees’ 

draft report on the BBM. Documentation indicates the Trustees specifically engaged the RPs to 

review and provide comment250 regarding the Trustee produced BBM. With respect to these 

specific costs, the NPFC finds that, based on the Trustee documentation in the Administrative 

Record, the RPs were cooperatively participating with the Trustees in NRDA activities that the 

Trustees identified as necessary to support the assessment of bird injuries. When identifying 

which of the RPs actions were taken on behalf of the Trustees, the NPFC gave significant weight 

to the cooperative nature of the RPs’ activities during the NRDA to infer that some of those 

activities were undertaken at the direction of the Trustees, even though the Administrative 

Record does not clearly document each instance when the RPs acted on behalf of the Trustees. 

Given the Trustee evidence supporting the RPs’ participation in certain activities and the totality

of the facts surrounding this claim, the NPFC also considered the absence of any evidence 

suggesting that the RPs engaged in specific activities for their own purposes instead of acting at 

the Trustees’ direction. 

The NPFC determines that, based on (1) correspondence between the Trustees and the RPs, (2) 

the Trustee Plan, and (3) the Administrative Record for J05003-OI03, $94,358.83 in the RPs’

costs are compensable in accordance with 33 C.F.R. §136.211(a) as reasonable trustee past 

assessment costs.

General NRDA Activities

The RPs claimed $307,422.02 in General NRDA administrative costs related to planning, 

coordinating, and managing NRDA activities; contracting, invoice payment, and other 

administrative support tasks; and disposal of supplies and equipment. As identified in the Plan, 

the Trustees claimed costs for similar activities under Trustee Coordination and Public Outreach, 

which include, but are not limited to251, funding to participate in meetings, review trustee 

produced documents, and engage the public in the NRDA.252 

The specific costs claimed by the RPs for General NRDA activities include:

a. $150,343.87 for Polaris personnel to travel to meet with the Trustees, coordinate with the 

Trustees, assess various restoration options, develop the administrative record, and 

 249 See Enclosure 3 to the Claim Determination for specific time entries denied 250 Claim Exhibit 2, p.756 of 1432. Communication regarding RPs review and comment on Trustees’ draft Seabird 

Mortality Report. 251 The Trustees include a caveat in the Plan that the specific Trustee Coordination activities listed are representative 

of the type of costs incurred, but that anticipated costs are not limited to those activities specifically identified 

252 Trustee Plan, p. 5-2
Page 43 of 47

contribute to and review the assessment plan. These costs were documented by invoices, 

time records, travel voucher, descriptions of work and proofs of payment; 253

b. $21,880.94 for ITOPF ( to provide technical advice to the RPs on various 

activities and attend meetings with the RP and Trustees. These costs were documented by 

travel vouchers and proofs of payment; 254

c. $28,636.49 for Gallagher Marine Services to dispose of excess equipment and supplies 

following the completion of NRDA field activities. These costs were documented by 

invoices, personnel costs, inventory lists, receipts, statements of work, and proofs of 

payments; 255

d. $24,329.47 for of the Swedish Club to attend meetings with the

Trustees in September 2007256 and March 2012257 and for an internal meeting in April 

2009.258 These costs were documented by travel vouchers and proofs of payment; 259

e. $82,231.25 for KYL attorneys to assist in developing the assessment plan, audit trustee 

invoices, communicate with the Trustees, review contracts, develop the administrative 

record, coordinate disposal of NRD equipment, conduct internal discussions among the 

RPs and consultants, legal research, and participate in public meeting. These costs were 

documented by descriptions of work and time record. 260

As defined by 15 C.F.R. 990.30, reasonable assessment costs include “administrative costs, legal 

costs, and other costs necessary to carry out this part... [And] costs associated with public 

participation”. Similar to the study specific costs previously discussed in the determination, an 

RPs’ general NRDA costs may be considered Trustee costs if such costs were necessary to 

support the Trustee’s NRDA and were associated with costs incurred at the Trustees’ direction. 

Throughout the Plan and additional claim documentation261, the Trustees documented the 

significant participation of the RPs in restoration planning including participating in assessment 

and restoration planning studies; funding the Trustees’ costs of the NRDA; directly paying for 

vessels and other field support costs; attending meetings with the Trustees to discuss the NRDA; 

reviewing and analyzing study results and drafting and/or commenting on reports documenting 

the restoration planning results; and identifying and developing restoration alternatives to restore 

damages from the oil spill. 

The NPFC finds that, based on the Trustee documentation in the Administrative Record, some of 

the RPs incurred General NRDA costs were necessary to support the Trustee NRDA. When 

identifying which of the RPs actions were taken on behalf of the Trustees, the NPFC gave 

significant weight to the cooperative nature of the RPs’ activities during the NRDA to infer that 

some of those activities were undertaken at the direction of the Trustees, even though the 

Administrative Record does not clearly document each instance when the RPs acted on behalf of 

the Trustees. Given the Trustee evidence supporting the RPs’ general participation in the 

 

253 Claim, Exhibit 20-22, and 31 254 Claim Section II.A Exhibit 37, and Exhibit 43 255 Claim, Exhibits 24, 25, and 39. 256 Selendang Ayu Cooperative Assessment Overview Meeting, September 6, 2007 USFWS Anchorage, Alaska. 

Claim, Exhibit 2, pp.460-462 of 1432. Meeting to discuss status of cooperative assessment and proposed activities 

for the restoration planning phase

257 Claim, Exhibit 2, pp. 1087-1160 of 1432. Communications coordinating and scheduling of meeting to discuss RP 

participation and remaining NRDA activities following the RP being granted their limit of liability by the NPFC.

258 Claim, Exhibit 37, p. 10 of 14. Meeting to discuss assessed seabird injury parameters and restoration proposals. 259 Claim, Exhibit 57 260 Claim, Exhibit 36 and 37 261 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, dated October 7, 2016 

(b) (6) (b) (6)
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Trustees’ NRDA and the totality of the facts surrounding this claim, the NPFC also considered 

the absence of any evidence suggesting that the RPs engaged in specific activities for their own 

purposes instead of acting at the Trustees’ direction. 

The Claim includes $150,343.87 in labor, travel, and supplies costs incurred by Polaris for 

General NRDA activities. Polaris served as the RPs’ primary NRDA consultant, helping plan, 

coordinate, and directly participating in many of the Trustees’ NRDA activities. Polaris’s 

activities are generally described as related to trustee coordination, assessing various restoration 

options, development of the administrative record, and contribution to and review of the 

assessment plan. The NPFC reviewed the specific work described associated with each invoice 

and found that $25,632.53 of Polaris’ claimed costs were clearly not incurred in support of the 

Trustees’ NRDA, on the Trustees’ behalf, or at their direction. 

First, there $6,976.81 in Polaris costs claimed as “General NRDA” that were explicitly in 

support of other assessment activities that the NPFC had determined were not in support of the 

Trustees’ NRDA.

262 Polaris claimed additional costs in the amount of $9,850.72 that, based on 

Trustee documentation in the record, were also clearly not in support of the Trustees NRDA, 

including costs for: background research on pre-assessment and regulations263; hard drive 

purchase264; cost assessment review265; data archival266; and creating summary reports and 

matrix tables in support of Limit of Liability claim267. Lastly, there were $8,805 in Polaris costs 

related to meetings with the insurer268 and conducting restoration estimates for the insurer269. To 

the extent the RPs engaged and relied upon the funding and participation of The Swedish Club 

during the course of the NRDA, such costs were incurred on the RPs’ behalf rather than directly 

in support of the Trustees’ NRDA. Also, costs incurred for communications between RPs’

counsel and RPs’ insurance company are a litigation cost that is not OSLTF compensable. 

The Claim includes travel costs for who was acting on behalf of the International 

Tank Owners Pollution Federation Limited (ITOPF). ITOPF provided technical advice to the 

RPs on seabird mortality calculations and seabird restoration alternatives the RP and attended 

several meetings with the RPs and Trustees270. The NPFC found that ITOPF participated at the 

RPs’ request.271 The Trustees did not request ITOPF’s participation and support, which they 

could have solicited themselves with ease through an existing MOU with the International Group 

of P&I Clubs272. In fact, the Trustees were confused by ITOPF’s participation in certain 

 

262 Claim, Exhibit 20-22, General NRDA, the NPFC denies: Invoice 2115 - $320 for work relating to 

Subsistence; Invoice 2477 - $420 for work related to overflight coordination; Invoice 2535 - $665.00 for 

work described as associated with vegetative habitat study; Invoice 2722 - $3,450 for compiling costs for 5 

studies, which were denied as non-Trustee activities; Invoice 3019 - $84.31 - Photocopies of Gareloi Reports; and 

labor for to (non-NRD claim preparation); and Invoice 3235- $2,037.50 in support of vegetation removal 

project

263 Invoice 2117 - $405; Invoice 2153 - $45 264 Invoice 2238 - $155.72 265 Invoice 2518 - $570 266 Invoice 2611 - $475 267 Invoice 3019 - $8,200 268 Invoice 2477 - $6,720 and Invoice 3188 - $1,800 269 Invoice 2380 - $285 270 Claim Section II.A Exhibit 37, and Exhibit 43 271 ITOPF reviewed the Study Plan for the Assessment of Remaining Oil, the proposed Kiska Island Rat Eradication 

Project, and the Bird Mortality Estimations, all activities for which there were other principal experts involved 

272 MOU between the International Group of P&I Clubs and NOAA’s Damage Assessment, Remediation, and 

Restoration Program. 2007.

(b) (6) (b) (6) (b) (6) (b) (6) (b) (6)
Page 45 of 47

discussions and meetings.273 Accordingly, the NPFC found that the $21,880.94 in costs incurred 

by ITOPF to provide technical advice to the RP are duplicative of other technical experts, were 

clearly not requested or directed by the Trustees, and were not in support of the Trustees’ 

NRDA. 

The Claim includes $28,636.49 in costs incurred by GMS to dispose of excess equipment and 

supplies following the completion of their participation in NRDA field activities. The 

description of disposed equipment indicates that the bulk of the excess equipment was associated 

with the Auklet Habitat Manipulation Study and the 2010 Reference Beach Study274 - activities 

of the RPs that were previously determined as being not in support of the Trustees’ NRDA. As 

such, the NPFC found that the $28,636.49 in claimed costs for GMS were clearly not incurred in 

support of the Trustees’ assessment. 

is the RPs’ representative and responsible for approving the RPs participation 

in and funding for the Trustees’ NRDA. To the extent that the RPs engaged and relied upon the 

funding and participation of The Swedish Club during the course of the NRDA, such costs were 

incurred on the RPs’ behalf rather than directly in support of the Trustees’ NRDA. These costs, 

in the amount of $24,329.47, are not NRDA costs nor costs incurred for activities requested by 

the Trustees. Also, costs incurred by an RPs’ insurance company while defending an RP are not 

OSLTF compensable because they are litigation costs. 

Finally, the Claim includes $82,231.25 in labor costs incurred by KYL for General NRDA 

activities. KYL’s costs are generally described as related to assisting in the development of the 

Trustees’ assessment plan, auditing Trustee invoices, communicating with the Trustees, 

reviewing contracts, developing the administrative record, coordinating disposal of NRD 

equipment, internal discussions among the RP and consultants, legal research, and public 

meetings. The NPFC reviewed the specific work described and found $3,875 related to activities 

clearly not in support of the Trustees’ NRDA.

275 Additionally, there were $23,170 in costs 

related to communications between KYL and The Swedish Club, the vessel’s insurer, which 

were costs incurred on the RPs’ behalf rather than directly in support of the Trustees’ NRDA. 

Also, costs incurred for communications between RPs’ counsel and RPs’ insurance company are 

a litigation cost that is not OSLTF compensable. 

The NPFC determines that, based on (1) correspondence between the Trustees and the RPs, (2) 

the Trustee Plan, and (3) the Administrative Record for J05003-OI03, the remaining $179,897.59 

in the RPs’ costs are compensable in accordance with 33 C.F.R. §136.211(a) as reasonable 

trustee past assessment costs.

VI. Summary

The NPFC has reviewed the Claim submitted by the RPs for past assessment and restoration 

planning costs in accordance with OPA (33 U.S.C. §2701 et seq.) and associated OSLTF Claims 

Regulations (33 C.F.R. Part 136). Through this determination, the NPFC offers payment of

 

273 Email from FWS to ITOPF, dated June 5, 2009 274 Per descriptions of excessed items in Claim Exhibit 25 and corroborated by declarations by , Claim 

Exhibit 39, and , Claim Exhibit 37 . 275 Claim, Exhibit 36, General NRDA, the NPFC denies $1,868.75 in costs associated with cost recovery/claim 

preparation activities, $1,556.25 in costs associated with equipment disposal associated with denied activities, 

$450.00 associated with other denied activities or non-NRD activities (work supporting the RPs’ limitation claim, 

future insurance coordination, and the denied Gareloi Island vegetation study), See Enclosure 3 to the Claim 

Determination for specific time entries denied

(b) (6) (b) (6) (b) (6)
Page 46 of 47

$5,113,673.03 for past assessment costs incurred directly by the Trustees and $2,104,476.88 for 

costs incurred directly by the RPs. The NPFC denies claimed costs in the amount of $13,862.94

for Trustee incurred costs and $4,159,708.41 for the RPs’ incurred costs. 

Table 3 - Claim Adjudication Summary 

Cost Type Claimed Approved Denied

Trustee $5,127,535.97 $5,113,673.03 $13,862.94 

RP Preassessment $816,468.47 $662,786.30 $153,682.17

RP Assessment $5,447,716.82 $1,441,690.58 $4,006,026.24

RP Sub-Total $6,264,185.29 $2,104,476.88 $4,159,708.41

Total $11,391,721.26 $7,218,149.91 $4,173,571.35

VII. Reconsideration of Denied Costs

Through this determination, the NPFC has denied $4,173,571.35 for costs claimed as past 

Trustee NRDA costs. 

The RPs may make a written request for reconsideration of this determination. The reconsideration 

request must be received by the NPFC within 60 days after the date of this determination or 30 

days after receipt, whichever is sooner. The request for reconsideration must be in writing and 

must include the factual or legal basis of the request for reconsideration, providing any additional 

support for the claim. Reconsideration will be based upon the information provided and a claim 

may be reconsidered only once. NPFC reconsiders claims based upon a de novo review of the 

administrative record and the NPFC is not bound by any conclusions reached during the initial 

claim determination. Thus, any of the amounts offered in this settlement offer may not be offered 

again on reconsideration.276 Disposition of the reconsideration will constitute final agency action. 

All correspondence should include the corresponding claim number J05003-RP04.

 276 Smith Property Holdings, 4411 Connecticut L.L.C. v. United States, 311 F.Supp.2d 69, 83 (D.D.C. 2004)(noting 

that under 33 C.F.R. § 136.115 (b) a settlement offer in an initial determination becomes automatically void if not 

accepted by the claimant and holding that NPFC is not bound by anything included in the initial offer).