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 National Pollution Funds Center Determination

This determination reconsiders the determination issued by the National Pollution Funds 

Center on April 8, 2022 for Claim J05003-RP04, M/V Selendang Ayu Oil Spill Assessment 

Costs. This determination represents final agency action.

I. Summary of the Reconsideration Request 

The National Pollution Funds Center (“NPFC”) issued its initial determination for this claim on 

April 8, 2022. To the extent it is not inconsistent with this determination, NPFC’s initial 

determination is incorporated by reference. The facts of the incident are set forth in the initial 

determination. 

On May 6, 2022, the NPFC received a request for reconsideration from Ayu Navigation Sdn Bhd 

and IMC Shipping Co. Pte. LTD (hereinafter collectively “RPs”) for $3,867,043.06 in costs 

directly incurred by them. The RPs provided legal grounds contesting the standard for 

reimbursement employed by the NPFC when adjudicating costs directly incurred by a 

responsible party (“RP”). Additionally, the RPs provided their arguments in support of 

reimbursing the costs denied in initial determination. 

II. Requirements for Claims Generally and Specific to Natural Resource Damage 

Claims 

The NPFC is responsible for adjudicating claims against the Oil Spill Liability Trust Fund 

(“OSLTF” or “Fund”). Congress authorized the President to promulgate regulations for the 

presentation, filing, processing, settlement, and adjudication of claims under OPA. 33 U.S.C. 

§2713(e).1

 Acting under a series of delegations of authority, the NPFC promulgated regulations 

for the processing of claims. 33 C.F.R. §136.105 titled “General Requirements for a Claim” sets 

forth pleading requirements for the claim and is purely procedural. Am. Steamship Owners Mut. 

Prot. & Indem. Ass'n, Inc. v. United States, 489 F. Supp. 3d 106, 133 (E.D.N.Y. 2020). The

claimant bears the burden of providing “all evidence, information, and documentation deemed 

necessary by the Director, NPFC, to support the claim”, and “[i]n the discretion of the Director, 

NPFC, any other information deemed relevant and necessary to properly process the claim for 

payment.” 33 C.F.R. §§136.105(a),(e)(13). “By design, the regulation requires claimants to 

bolster their claim with as much information as possible so that the NPFC can reasonably 

 

1 In turn, by way of Executive Order 12777 (Oct. 18, 1991), the President delegated this function to the Secretary of 

the Department in which the Coast Guard was operating. In March 1992, the Coast Guard, Commandant delegated 

this function to NPFC. 

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: August 5, 2022 

NPFC Claim Manager: 

(b) (6)
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determine whether reimbursement from the Fund is warranted. This is reinforced by the final, 

catchall provision, which requires claimants to include in their claim ‘any other information 

deemed relevant and necessary’ by the Director, NPFC, to properly adjudicate the claim.” Am. 

Steamship, at 134.

When the Trustees submit their claims for OSLTF reimbursement of natural resource damages 

(“NRD”), they must, among other things, submit: assessment and restoration plans forming the 

basis of the claim; a description of damages claimed by category; documented costs and cost 

estimates for the plan; evidence relating to the spill and the damages; witness lists and 

descriptions of their knowledge of the incident; certification as to accuracy of the claim and 

whether the assessment was conducted in accordance with the applicable natural resource 

damage assessment (“NRDA”) regulations (found in 15 C.F.R. Part 900); and certification that 

the claim does not constitute double recovery. 33 C.F.R. §136.209.

Subpart B of the Claims Regulations also provide the procedures for settlement and notice to 

claimant. The claimant may seek a request for reconsideration for any claim denied. The request 

must be in writing and include the factual or legal grounds for the relief requested, providing any 

additional support for the claim. 33 C.F.R. §136.115(d). The time in which the claimant may 

request reconsideration is within 60 days after date the denial was mailed, or within 30 days after 

receipt of the denial by claimant, whichever is earlier. Id. The NPFC is obligated to provide 

written notice of the decision within 90 days after the receipt of the request for reconsideration; 

the failure to provide written notice within the designated time may be deemed a denial at the 

option of claimant. Id. 

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

by 5 U.S.C. § 555.2

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

explaining the basis for a denial. This determination satisfies that statutory requirement.

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.

The determination was electronically mailed to the RPs on April 8, 2022. The request for 

reconsideration was received by the NPFC on May 6, 2022 within the time limitations for a 

request for reconsideration. This determination is issued and constitutes a final agency action.

III. Reconsideration of NPFC Standard for Reimbursement of RP Incurred NRD

The RPs’ chief complaint is that the NPFC applied the wrong legal standard when deciding 

whether NRD costs incurred directly by the RPs are reimbursable by the Fund under 33 U.S.C. 

 2 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 . . . .” 
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§2708.

3

 They posit that under the “correct legal standard”, they are entitled to a “substantially 

greater amount” than what was offered. 

Reading the language of 33 U.S.C. §2708 broadly, the RPs contend that although they are 

not Trustees, they still may recover any direct costs related to NRDA. They posit that because the 

RPs engaged in some level of cooperation with the Trustees, the NPFC must accept all costs 

purportedly incurred for NRD without question. They complain that NPFC set a “new standard” 

in requiring that they demonstrate the 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 NRDA. They assert that this “new standard” is arbitrary and capricious because this 

requirement is not found in OPA or the attendant regulations. 

As already stated in the initial determination, because the authority to conduct NRDAs 

rests squarely with the designated Trustees, any costs related thereto must be incurred pursuant to 

that Trustee authority. And because NPFC has already approved the plan by the Trustees for the 

NRDA and associated costs (see September 22, 2017 NPFC determination for DOI Selendang 

J05003-OI03), it was a simple matter that the RPs link their direct costs to activities that were 

conducted under the authority of the Trustees. In order to demonstrate this, the RPs ought to have 

shown that the costs were incurred at the explicit direction and on behalf of the Trustees in 

furtherance of the Trustee-approved plan. Said another way, the RPs should demonstrate that these 

costs would have been incurred by the Trustees for NRDA activities and that the Trustees 

authorized the RPs to incur those costs directly on behalf of the Trustees. Requiring this evidence 

is not arbitrary or capricious; rather, this comports with Congress’s intent that the designated 

Trustees—not the responsible parties—conduct NRDAs and recover the related costs thereto. 

The NPFC articulates the statutory framework and legal basis supporting its determination 

in this Section (Part III) and the specific factual grounds for denial in Part IV. For the reasons set 

forth below, the NPFC reaffirms its decision. 

1. Statutory Background of Trustee Authority. 

 As described in the initial determination, the plain reading of OPA demonstrates that only 

the Trustees—not the RPs—have the authority to assess NRD and to recover the same. 33 U.S.C. 

§2706(b)(1)(“The President [...] shall act on behalf of the public [...] as Trustee to present a claim 

for and to recover damages to the natural resources”); see also Id. at §2706(b)(2)(“The President 

shall designate the Federal officials who shall act on behalf of the public as Trustees for natural 

resources under this Act.”); and Id. at §2706(c)(1)(“The Federal officials designated [...] shall 

assess natural resource damages”); and id. at 2702(b)(2)(A)(“Natural resources—Damages for 

injury to, destruction of, loss of, or loss of use of, natural resources, including the reasonable costs 

of assessing the damage, which shall be recoverable by a United States Trustee”). Congress

compelled the Undersecretary of Commerce for Oceans and Atmosphere (NOAA)—not the RPs—

to promulgate regulations for NRDAs. 33 U.S.C. §2706(e)(1). Congress provided that the

Trustees—not the RPs—are entitled to a rebuttable presumption for any determination or 

assessment made in accordance with the promulgated regulations. 33 U.S.C. §2706(e)(2). And 

Congress allowed the Trustees—not the RPs—to retain sums recovered in a trust account. 33 

U.S.C. §2706(f). 

 3 Request for Reconsideration Letter dated May 6, 2022.
Page 6 of 29

Even OPA’s legislative history and regulations underscore the supremacy of the Trustees—

not the RPs—to conduct these assessments: 

Any assessment of damages conducted in accordance with the regulations 

promulgated under this Act has the force and effect of a rebuttable presumption on 

behalf of the State or Federal Trustee in any judicial or administrative proceeding 

under this Act. Assessments, of course, must be conducted by Trustees, not by 

responsible parties.

S. REP. No. 101-94 at p. 15 (1989)(emphasis added).

The Committee intends that the federal Trustees of natural resources designated in 

the National Contingency Plan [...] also shall act as federal Trustees for natural 

resources under this Act. [...] Federal [...] Trustees shall assess damagesto natural 

resources under their Trusteeship, and shall develop and not merely adopt, but 

implement plans for the restoration, rehabilitation, replacement, or acquisition of 

equivalent natural resources under their Trusteeship. [...]

H.R. Rep. No. 101-242, Part 2 at pp. 60-61 (1989)(emphasis added). 

And although the regulations require the Trustees to invite participation of the RPs, said 

participation is limited and controlled by the Trustee:

Nature and extent of participation. If the responsible parties accept the invitation to 

participate, the scope of that participation must be determined by the Trustees, in 

light of the considerations in paragraph (c)(5) of this section. [...] Final authority

to make determinations regarding injury and restoration rest solely with the 

Trustees. Trustees may end participation by responsible parties who, during the 

conduct of the assessment, in the sole judgment of the Trustees, cause interference 

with the Trustees' ability to fulfill their responsibilities under OPA and this part.

15 C.F.R. §990.14(c)(4)(emphasis added). This entrustment of great responsibility as guardians 

of public resources is unsurprising. Appointed by the President, and at the highest levels of State, 

foreign government and Indian tribe, the Trustees serve a fiduciary role in ensuring the public 

resources are restored after an oil spill. This deference and entrustment does not extend to the 

spiller. 

Notwithstanding the above deference, even the Trustees do not have an open checkbook to 

incur costs under the guise of assessments. The regulations provide strict constraints on the 

Trustees’ authority. For example, assessment costs must be reasonable (33 U.S.C. §2706(d); 

§2702(b)(2)(A)), the definition of which is contained in the regulations: 

Reasonable assessment costs means, for assessments conducted under this part, 

assessment costs that are incurred by Trustees in accordance with this part. In cases 

where assessment costs are incurred but Trustees do not pursue restoration, 

Trustees may recover their reasonable assessment costs provided they have 

determined that assessment actions undertaken were premised on the likelihood of 

injury and need for restoration. Reasonable assessment costs also include: 

administrative costs, legal costs, and other costs necessary to carry out this part; 
Page 7 of 29

monitoring and oversight costs; costs associated with public participation; and 

indirect costs that are necessary to carry out this part.

15 C.F.R. §990.30 (emphasis added). To be deemed “in accordance with this part”, the assessment 

procedures must comply with all of the following:

• The procedure must be capable of providing assessment information of use in determining 

the type and sale of restoration appropriate for a particular injury;

• The additional cost of a more complex procedure must be reasonably related to the 

expected increase in the quantity and/or quality of relevant information provided by the 

more complex procedure; and 

• The procedure must be reliable and valid for the particular incident. 

15 C.F.R. §990.27(a). See also, General Elec. Co. v. U.S. Dept. of Commerce, 128 F.3d 767, 779 

(D.C. 1997)(noting that the requirement in 15 C.F.R. 900.27 that the plans be “reliable and valid 

for a particular incident” is sufficient safeguard to ensure accuracy and reasonableness of NRD 

costs). The rebuttable presumption applies only where the assessments made by the Trustees are 

“in accordance with this part.” 15 C.F.R. §990.13. 

The Trustees likewise have a choice of assessment procedures and parameters for selecting said 

procedures. Id. at §990.27(b)-(c). Finally, it is the Trustees—not the RPs—who decide what is 

necessary to carry out this part, particularly in the context of coordination with the RPs: “Final 

authority to make determinations regarding injury and restoration rest solely with the Trustees.”

15 C.F.R. §990.14.

 

Congress was clear that the Trustees—not the RPs—had the authority to conduct NRDAs. 

Congress was also clear that the regulations would govern both the Trustees’ damage assessment 

procedures as well as the claims procedures for payment of uncompensated damages from the 

Fund. Those regulations put sufficient constraints on the Trustees’ authority to incur NRDA costs

and ensure that those costs are reasonable. It is highly improbable that Congress intended Section 

2708 to provide the RPs more liberal access to the Fund than even that of the Trustees whose 

entitlement is controlled and limited by both OPA and the regulations. To the contrary, costs 

incurred by a RP will not be reasonable assessment costs under the OPA and the relevant 

regulations when those costs were not approved by the Trustee(s). That’s particularly true when a 

RP incurs costs to protect its litigation interests as opposed to assessing or restoring NRD resulting 

from the RP’s oil spill. 4 

2. OPA’s Section 2708 only permits the RPs to submit a claim; the controlling law for 

adjudications of claims is found in Section 2713 and the attendant regulations.

 4 The NPFC specifically highlights the RPs costs related to the “cooperative” Harlequin P450 Study. The study’s 

purpose was to assess chronic oil exposure and injury to seaducks. However, the RPs proposed and conducted a 

separate component of the study involving assessment of non-oil related impacts in mussels to provide an alternate 

theory of injury to seaducks – i.e. injuries and associated damages were not oil related, thereby reducing the RPs 

liability. When the RPs proposed the mussel study component to the Trustees, the Trustees responded that the RPs 

failed to provide scientific literature supporting their hypothesis of non-oil impacts, failed to provide a sampling plan 

for the Trustees to review, did not provide the Trustees with adequate time to consider the request, and, as a result, 

the Trustees did not consider the mussel study a cooperative activity. Thus, even though the overall P450 Study was 

cooperative, the costs for the mussel study component were very clearly not directed or authorized by the Trustees 

and were conducted on behalf of the RPs’ own interests.
Page 8 of 29

The RPs attempt to impermissibly broaden the scope of Section 2708. In their early 

correspondence to the NPFC, they argue:

Section 2708 of OPA thus expressly and unequivocally allows an RP that limits its 

OPA liability to recover from the OSLTF the sum of: (1) removal costs it incurs; 

(2) damages it incurs; and (3) payments it makes to settle claims, to the extent that 

the sum exceeds the limit of its OPA liability.5 

In their request for reconsideration, they seem to digress from this proposition, arguing 

instead that they are “entitled to be reimbursed a substantially greater amount” than what NPFC 

offered in its initial determination.6

Indeed, Section 2708 only provides authority to assert a claim and the extent of recovery 

against the OSLTF:

(a) In general.

The responsible party [...] may assert a claim for removal costs and damages under section 

2713 of this title only if the responsible party demonstrates that—[...]

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

title.

(b) Extent of recovery

A responsible party who is entitled to a limitation of liability may assert a claim under 

section 2713 of this title only to the extent that the sum of the removal costs and damages 

incurred by the responsible party plus the amounts paid by the responsible party [...] 

exceeds the amount to which the total of the liability under section 2702 of this title and 

removal costs and damages incurred by [...] the responsible party is limited under section 

2704 of this title.

33 U.S.C. §2708(emphasis added). 

Thus, while the RPs may assert a claim, the claim is governed by the provisions of Section 

2713.7 Section 2708 offers the RPs no more or less entitlement than the opportunity to submit a 

claim. As noted above, for the payment of NRD claims under Section 2713, ordinarily the

Trustees are subject to detailed regulations governing the presentation, filing, processing, 

settlement, and adjudication of NRD claims. Id. §2713(e); 33 C.F.R. Part 136. 

3. Given that Congress mandated the Trustees conduct NRDAs, requiring the RPs to 

demonstrate the direct costs purportedly associated with these assessments were 

incurred at the explicit direction and on behalf of the Trustees to support the Trusteeled assessment was not arbitrary and capricious or manifestly contrary to the statute. 

Because the RPs are not Trustees, they can neither satisfy the certification standards 

imposed upon the Trustees by the Claims Regulations (33 C.F.R. §136.209), nor be beholden to 

the restrictions and safeguards of 15 C.F.R. Part 900. Moreover, because the RPs did not reimburse 

 5 See Admin Record RP letter to NPFC May 21, 2020; 6 Request for Reconsideration to NPFC May 6, 2022.

7 All claims against the OSLTF must be paid in accordance with 33 U.S.C. §2713. See, 33 U.S.C. §2712(a)(4).
Page 9 of 29

the Trustees for the RPs’ own directly incurred costs, the subrogation clause of Section 2715 does

not apply. 

However, because the NRD regulations encourage RP participation in NRD assessments,

including an RP’s willingness to fund activities, it would be unfair and contrary to OPA’s 

purpose—to provide quick and efficient clean up and compensation for damages8—to deny those 

costs that would have been incurred by the Trustees had the RP not paid them. But the NPFC could 

not just give RPs a blank check simply because the RPs say these were NRD costs. Accordingly,

the NPFC was within its authority to require the RPs to demonstrate that the direct costs were 

incurred under the authority of the Trustees. 33 C.F.R. §136.105(a), 136.105(e)(13). 

“If the agency action was authorized, the court must consider whether the agency's decision 

‘was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Am. 

Steamship Owners Mut. Prot. & Indem. Ass'n, Inc. v. United States, 489 F. Supp. 3d 106, 130 

(E.D.N.Y. 2020)(quoting Camp v. Pitts, 411 U.S. 138, 142 (1973) (citing 5 U.S.C. § 706(2)). 

Moreover, “[o]nly if the agency ‘offered an explanation for its decision that runs counter to the 

evidence before the agency, or [one] so implausible that it could not be ascribed to a difference in 

view or the product of agency expertise,’ will the decision be overturned. Id. (citing Karpova v. 

Snow, 497 F.3d 262 at 267-268 (2nd Cir. 2007). “[T]he court will uphold the agency’s 

determination so long as the agency examines the relevant data and has set out a satisfactory 

explanation, including a rational connection between the facts found and the choice made.” Id. 

(citing Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 

(1983)).

As noted above, Congress authorized the President to promulgate regulations governing

the claims process. 33 U.S.C. §2713(e).9 Under 33 C.F.R. §136.105(a), and 136.105(e)(13) the 

Claims regulations provide broad authority to require documentation, information, and evidence 

that NPFC deems relevant and necessary to adjudicate the claim. “Nowhere does 33 C.F.R. 

§136.105, or §136.105(e) [...] purport to enhance or limit, create or destroy, any rights or 

entitlement[...].” Am. Steamship, at 134. It is now too late to review the validity and scope of 

NPFC’s authority granted under this regulation. 33 U.S.C. §2717(a). 

By requiring the RPs to provide evidence that the direct costs were incurred at the direction 

and on behalf of the Trustees in support of the Trustee-led assessment plan, the NPFC has 

construed OPA and the attendant regulations in a manner to give effect to Section 

2708(b)(entitlement to file a claim for damages incurred above the limit of liability) while ensuring 

that the Trustees’ authority to conduct the assessments is not obfuscated by potentially competing 

agendas of the RPs to recover more than what is compensable. Because the Trustees have already 

demonstrated to the NPFC that their damages assessment comports with the regulations, it 

necessarily follows that those costs incurred at the explicit direction and on behalf of the Trustee 

for the Trustee-led plan should be recovered. In requiring the direct costs be pursuant to Trustee 

authority, the NPFC avoids the payment of duplicative, speculative, and unsubstantiated costs and 

ensures that the RPs do not profit by engaging in activities that were meant to disprove and/or 

reduce their liability, were speculative, or were otherwise meant to obfuscate the process. Costs 

 8 OPA’s purpose is to establish “uniform and predictable rules that encourage prevention, quick cleanup, and 

reasonable compensation.” Am. Steamship Owners Mut. Prot. & Indem. Ass'n, Inc. v. United States, 489 F. Supp. 

3d 106, 110 (E.D.N.Y. 2020)

9 In turn, by way of Executive Order 12777 (Oct. 18, 1991), the President delegated this function to the Secretary of 

the Department in which the Coast Guard was operating. In March 1992, the Coast Guard, Commandant delegated 

this function to NPFC. 
Page 10 of 29

that do not support the plan—i.e. costs that were incurred to dispute the validity of the Trustees’ 

assessments, costs for legal fees to undermine the Trustees’ efforts, costs that duplicate the 

Trustees’ efforts are not recoverable. Indeed, so long as the costs were “at the direction of and on 

behalf of a Trustee, for those activities determined by the Trustee to be necessary to support the 

Trustee-led assessment,” the NPFC will be satisfied that they are compensable. It is up to the RPs 

to link their damages assessment costs to specific Trustee authority. See e.g. Am. Steamship

Owners, 489 F.Supp.3d at 135 (“Plaintiff’s challenge fails to grasp that the interplay of several 

OPA statutes requires a responsible party [...] to link damages and assessment costs for which it 

seeks compensation from the Fund, to specific third-party claims”). 

The RPs point to the existence of a joint agreement in support of the direct costs that they 

have incurred. As will be discussed in more detail below, the RPs have failed to demonstrate how 

those costs were incurred at the direction of the Trustees. Indeed, the final authority to make 

determinations regarding injury and restoration rest solely with the Trustees. 15 C.F.R. §990.14. 

Though the NRDA regulations encourage responsible party participation, that participation does 

not give the responsible parties carte blanche to choose their own restoration and assessment 

activities, independent of the efforts of the Trustees or to otherwise undermine those efforts. 

4. The Julie N. and Kuroshima do not stand for the proposition that the mere existence 

of a joint agreement gives the Responsible Parties an open checkbook to incur any 

costs under the guise of NRD. 

The RPs complain that the outcome today is “irreconcilably different” from the decisions 

in Julie N (2002) and Kuroshima (2006). In both cases, the adjudication and payment were 

premised on a cooperative NRD assessment agreement. The outcome in this determination is not 

contrary—NPFC is proposing to pay nearly all of the NRD costs that the RPs reimbursed to the 

Trustees as well as directly incurred NRD costs when the RPs demonstrated that those costs funded 

activities authorized by the Trustees. With this determination, NPFC has changed its position that 

a RP’s mere participation in a cooperative assessment does not create an entitlement to OSLTF 

reimbursement of all directly incurred costs. Before a RP’s direct costs can be reimbursed, the RP 

should demonstrate that the claimed costs were incurred at the explicit direction and on behalf of 

the Trustees in furtherance of the Trustee-approved plan. 

It should be noted that the determinations issued in response to the claims submitted in the 

Julie N (2002) and Kuroshima (2006) did not create binding precedent, Offers of payment of 

claims under 33 C.F.R. Part 136 are settlement offers only. 33 C.F.R. §136.115. Because these 

are settlement offers, the payment of NRD direct costs in prior determinations does not lead to a 

black letter rule that they will be automatically paid in future determinations. There is no authority 

for the proposition that a settlement offer to a prior claimant in a separate incident would lead to 

the same result to an entirely different claimant for a different incident. Each claim is adjudicated 

on the merits based on the evidence and the administrative record for that claim. See e.g. Smith v. 

Property Holdings v. U.S., 311 F.Supp.2d 69, 83 (D.C. 2004)(if “settlement offers are not evidence 

of a defendant’s liability” they likewise do not “prove[] that a party is entitled to reimbursement”). 

The NPFC acknowledges, however, that it cannot completely ignore its reasoning in past 

determinations. While “it is axiomatic that agency action must either be consistent with prior 

action or offer a reasoned basis for its departure from precedent [...] it is equally axiomatic that an 

agency is free to change its mind so long as it supplies a ‘reasoned analysis’.” Nat’l Cable & 
Page 11 of 29

Telecommunications Ass’n v. F.C.C., 567 F.3d 659, 667 (D.C. Cir. 2009)(citing Motor Vehicle 

Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 27, 57 (1983). 

The Supreme Court illuminated what an agency is required to articulate under a reasoned 

analysis when it is departing from prior precedent or when it is changing policy: 

To be sure, the requirement that an agency provide reasoned explanation for its 

action would ordinarily demand that it display awareness that it is changing 

position. An agency may not, for example, depart from a prior policy sub silentio or 

simply disregard rules that are still on the books. See United States v. Nixon, 418 

U.S. 683, 696, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). And of course the agency 

must show that there are good reasons for the new policy. But it need not 

demonstrate to a court's satisfaction that the reasons for the new policy 

are better than the reasons for the old one; it suffices that the new policy is 

permissible under the statute, that there are good reasons for it, and that the 

agency believes it to be better, which the conscious change of course adequately 

indicates. This means that the agency need not always provide a more detailed 

justification than what would suffice for a new policy created on a blank slate. 

Sometimes it must—when, for example, its new policy rests upon factual findings 

that contradict those which underlay its prior policy; or when its prior policy has 

engendered serious reliance interests that must be taken into account. Smiley v.

Citibank (South Dakota), N. A., 517 U.S. 735, 742, 116 S.Ct. 1730, 135 L.Ed.2d 25 

(1996). It would be arbitrary or capricious to ignore such matters. In such cases it 

is not that further justification is demanded by the mere fact of policy change; but 

that a reasoned explanation is needed for disregarding facts and circumstances that 

underlay or were engendered by the prior policy.

F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515–16 (2009)(emphasis in original). 

To the extent NPFC relied on the RP’s participation in a cooperative agreement as the sole 

basis for reimbursing its directly incurred NRDA costs in Julie N (2002) and Kuroshima (2006), 

the NPFC has changed its position on what a RP must show to receive OSLTF reimbursement of 

a RP’s directly incurred NRDA costs. After careful consideration of all the facts in this claim and 

OPA, NPFC concludes that requiring the RPs to demonstrate the NRD costs incurred were at the 

direction and on behalf of the Trustees supports the intent and purpose of OPA and ensures that 

the RPs do not turn the claims process into an opportunity to profit on costs that are not 

compensable under OPA. As previously explained, the Trustees have both the responsibility and 

the authority under the OPA and its regulations to assess and restore NRD, not the RP. In a complex 

multi-year effort, such as the Selendang NRDA, the mere existence of a cooperative agreement is 

not sufficient to establish that the RPs’ costs were incurred under the authority of and authorized 

by the Trustees.4 The explicit direction of the Trustees is the clearest proof that a RP’s actions are 

part and parcel of the Trustees’ plan. By limiting OSLTF reimbursement in this manner, this 

change in policy will significantly improve the OSLTF claims process by avoiding costs that do 

not facilitate the Trustees’ responsibility to assess and restore the NRD resulting from the RP’s oil 

spill. This change in policy will also improve the NRDA process by decreasing a RP’s incentive 

to conduct assessment activities that are deemed unhelpful by the Trustees. 

The specific reasons for rejecting specific direct costs are set forth in more detail below.

IV. Reconsideration of Activity Specific Costs 
Page 12 of 29

Harlequin P450 Study

Summary of Claimed Activity Costs 

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.10 The 2008 P450 study was a 

continuation of assessment work conducted by both the Trustees and the RPs in 2005 and 200611

to assess impacts to seabirds from chronic exposure to residual oil. The Trustees proposed12, and 

the RPs agreed to fund, another season of sampling and analysis that was conducted in 2008. 

During the 2008 survey, the RPs and Trustees captured live ducks, took tissue biopsies from 

their livers, and then conducted chemical analyses of the liver cells to study PAH exposure.13 

The RPs’ claimed damages included costs to assist in study design, participate in field work, 

conduct analysis of results, coordinate use of the research vessel, and conduct a mussel study to 

assess potential non-oil impacts to ducks. 

Initial NPFC Adjudication 

In its initial adjudication14 of the RPs’ claim, the NPFC determined that: 

1. The P450 study was an appropriate assessment activity for the incident; 

2. 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 P450 study; 

3. Based on the Trustee documentation in the Administrative Record, $262,032.10 of the 

RPs’ claimed costs were incurred at the request of, and on behalf of the Trustees, to 

conduct activities necessary to support the Trustee-led P450 Study. Accordingly, such 

costs were reimbursable from the Fund in accordance with 33 C.F.R. §136.211(a) as 

reasonable Trustee past assessment costs; 

4. $23,948.95 of the RPs’ claimed costs were related to the collection and analysis of 

mussels to evaluate paralytic shellfish poisoning (PSP), a component of the study that the 

Trustees did not request, direct, or participate in. Accordingly, based on the Trustee 

documentation in the Administrative Record, associated costs were denied because they 

were clearly not incurred at the request of the Trustees, on behalf of the Trustees, or 

necessary for the Trustees’ NRDA; 

5. $8,856.25 of the RPs’ claimed costs were related to communications between KYL and 

The Swedish Club, the vessel’s insurer. Communications between the RPs and its insurer 

were incurred on the RPs’ behalf rather than directly in support of the Trustees’ NRDA 

and, further, costs for communications between RPs’ counsel and RPs’ insurance 

company are a litigation cost that is not OSLTF compensable. Accordingly, such costs 

were denied; and 

 10 Claim Section II.A.2.b 11 Costs related to the 2005 and 2006 surveys are discussed previously in the determination 12 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, Response to NPFC Item #8, 

Section I.c, p. 4-5 13 Trustee Plan, pp. 3-20 - 3-21 14 J05003-RP04 Claim Summary / Determination, pages 32-34
Page 13 of 29

6. $17,562.33 of the RPs’ Polaris costs15 did not have a documented purpose16. 

Accordingly, based on the Trustee documentation in the Administrative Record, such 

costs were denied as they were clearly not incurred at the request of the Trustees, directed 

by the Trustees, or necessary for the Trustees’ NRDA. 

Claimant Basis for Reconsideration of Denied Costs 

In their request for reconsideration17, the RPs included a study report18 from their contractor that 

asserts exposure of ducks to PSP toxins can produce the same indicators of injury in ducks (i.e. 

elevated P450 levels) as those caused by oil exposure. The report further asserts that elevated 

levels of PSP had been observed in the area of the spill. The RPs conducted the mussel study to 

determine if PSP toxins were the cause of elevated P450 levels the areas impacted by oil. The 

RPs states that their proposal was made shortly before the 2008 study and the Trustees did not 

have time to evaluate it. The RPs did not provide any additional information or argument to 

support the reconsideration of denied costs related to communications with the Swedish Club, 

nor did they provide additional information or argument to support the reconsideration of 

insufficiently documented Polaris costs. 

NPFC Analysis and Reconsideration Determination

Upon review of the additional information provided by the RP, along with consideration of the 

overall Administrative Record, the NPFC affirms its original determination denying $50,367.53 

in costs related to the P450 study. The documentation in the Administrative Record evidences 

that the mussel study was conceived and conducted by the RPs without request, direction, or 

participation from the Trustees.19 The Administrative Record further reflects that, when the 

mussel study was proposed by the RPs, the Trustees’ responded that the RPs failed to provide 

scientific literature supporting their hypothesis of PSP impacts, failed to provide a sampling plan 

for the Trustees to review, did not provide the Trustees with adequate time to consider the 

request, and, as a result, the Trustees did not consider the mussel study a cooperative activity.20

Accordingly, costs related to the mussel study are denied because they were clearly not incurred 

at the request of the Trustees, on the behalf of the Trustees, or necessary for the Trustees’ 

NRDA. 

While PSP may have been a subject of relevant interest to the RPs, the RPs interest has no basis 

on the NPFC’s determination of reasonable Trustee assessment costs. Even though parts of the 

Selendang NRDA were conducted cooperatively, the RPs did not, and cannot, obtain 

independent Trustee authority to conduct NRDA activities of their own selection. An RP may 

understandably choose to incur costs to conduct any number of activities related to an incident, 

however such efforts are conducted on behalf of its own legal and financial interests. These 

divergent interests were fully acknowledged by the RPs from the beginning of the NRDA, 

admitting that the Trustees and RPs have different “constituencies” whom they represent in the 

 15 J05003-RP04 Claim Summary / Determination, footnote 178 16 NPFC suspected that the costs related to duplicative analysis of the Trustees report 17 RPs’ Request for Consideration, page 32 18 Potential Paralytic Shellfish Poisoning (PSP) Toxin Induction of Cytochrome P-450 (CYP1A) in Harlequin Ducks 

Over-Wintering in the Waters of Unalaska Island, Polaris Applied Sciences, January 7, 2008 19 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, Response to NPFC Item #8, 

Section I.c, pp-4-5 20 Email from DOI to RPs, dated February 4, 2008 
Page 14 of 29

NRDA.21 This divergence of interest is clearly manifested here, where the RPs were interested 

in studying the potential impacts of PSP because such impacts would provide a separate source 

of injury to marine birds, thereby reducing their potential liability for incident-related OPA 

damages. For this reason, only such costs that were incurred at the direction of the Trustees, on 

behalf of the Trustees’ NRDA, and necessary to support the Trustees’ NRDA can be considered 

“reasonable Trustee assessment costs” that were incurred as representatives of the public as 

designated by, among other authorities, subpart G of the National Contingency Plan and 33 

U.S.C. §2706(b). 

As stated previously, the RPs did not provide additional information or argument to dispute the 

NPFC’s earlier determination that costs related to communications with the Swedish Club, the 

NPFC were incurred on the RPs’ behalf rather than directly in support of the Trustees’ NRDA 

and, further, that costs for communications between RPs’ counsel and RPs’ insurance company 

are a litigation cost that is not OSLTF compensable. Furthermore, given that the RPs’ did not 

provide additional information to support the $17,562.33 of insufficiently documented Polaris 

costs, such costs remain denied because, based on the Trustee documentation in the 

Administrative Record they were clearly not incurred at the request of the Trustees, on the 

Trustees’ behalf, or necessary for the Trustees’ NRDA. 

Accordingly, the NPFC affirms its’ initial determination that $262,032.10 of the RPs’ claimed 

costs for the P450 study are compensable in accordance with 33 C.F.R. §136.211(a) as 

reasonable Trustee past assessment costs.

2010 Reference Beach Study and Seabird Mortality Estimates

Summary of Claimed Costs 

The RPs claimed costs of $626,755.72 for their assessment efforts to estimate seabird mortality 

and to conduct a reference beach study to assist in their mortality estimate.22 Early in the 

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

quantifying the number of birds injured from direct oiling.23 The Trustees and RPs cooperatively 

conducted reference beach studies24 in 2005 to provide site specific data to use as inputs for the 

BBM. 

In 2007, the Trustees and RPs engaged in cooperative discussions involving the interpretation of 

bird injury data, including the results of the 2005 reference beach studies.

2526 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 

 21 Email from Polaris to KYL, dated February 7, 2005 22 Claim Section II.A,2.h 23 Trustee Plan, pp. 3-16 to 3-19 24 Studies assessing carcass deposition rate, carcass persistence, searcher efficiency, and background mortality 25 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)

26 Enclosure G of Trustee Additional Information Response for Claim N10036J05003-OI03, dated October 7, 2016, 

p 3.
Page 15 of 29

mortality.27 The RPs’ claimed damages included costs to review the Trustees BBM injury report, 

analyze bird feather chemistry, develop the 2009 aerial bird survey, conduct the 2010 Reference 

Beach Study, and develop the RPs’ BBM estimate of injury. 

Summary of Initial NPFC Adjudication 

In its initial adjudication28 of the RPs’ claim, the NPFC determined that: 

1. The BBM was an appropriate assessment activity for the incident29; 

2. 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 BBM; 

3. Based on the Trustee documentation in the Administrative Record, $94,358.83 of the 

RPs’ claimed costs were incurred at the request of, and on behalf of the Trustees, to 

conduct activities necessary to support the Trustee-lead study to quantify bird injury 

through the BBM. Accordingly, such costs were reimbursable from the Fund in 

accordance with 33 C.F.R. §136.211(a) as reasonable Trustee past assessment costs; 

4. $455,529.52 of the RPs’ claimed costs were related to the development of a separate 

BBM from that prepared by the Trustees and a second field study of background 

mortality in 2010. The Trustees did not request or direct the activities conducted by the 

RPs and, with respect to the 2010 field studies, the Trustees specifically emphasized that 

they never endorsed that the study would provide more useful data than the 2005 

studies.30 Accordingly, associated costs were denied because, based on the Trustee 

documentation in the Administrative Record, they were duplicative, clearly not incurred 

at the request of the Trustees, on the Trustees’ behalf, or necessary for the Trustees’ 

NRDA; 

5. $34,964.87 of the RPs’ claimed costs were related to a planned, but later aborted, 2009 

overflight of seabird rafting locations. Associated costs were denied because, based on 

the Trustee documentation in the Administrative Record, they were clearly not incurred 

at the request of the Trustees, directed by the Trustees, or necessary for the Trustees’ 

NRDA; 

6. $33,557.50 of the RPs’ claimed costs were related to oil source analysis of oiled feathers 

from previously collected carcasses. Associated costs were denied because, based on the 

Trustee documentation in the Administrative Record, they were duplicative, clearly not 

incurred at the request of the Trustees, directed by the Trustees, or necessary for the 

Trustees’ NRDA; 

7. $1,232.50 of RPs’ Polaris costs31 were related to subsistence and third party claims. 

Associated costs were denied because, based on the Trustee documentation in the 

Administrative Record, they were clearly not incurred at the request of the Trustees, 

directed by the Trustees, or necessary for the Trustees’ NRDA; and 

 

27 Proposed Bird Background Mortality Study in the Region of the Selendang Ayu Grounding, Unalaska Island,

Prepared By: 2010, 2 pages 28 J05003-RP04 Claim Summary / Determination, pages 40-42 29 J05003-RP04 Claim Summary / Determination, page 14 30 Enclosure G of Trustee Additional Information Response for Claim N10036J05003-OI03, dated October 7, 2016, 

pp. 2-3 31 J05003-RP04 Claim Summary / Determination, footnote 246

(b) (6)
Page 16 of 29

8. $7,112.50 of the RPs’ claimed costs were related to communications between KYL and 

The Swedish Club, the vessel’s insurer. Communications between the RPs and its insurer 

were incurred on the RPs’ behalf rather than directly in support of the Trustees’ NRDA 

and, further, costs for communications between RPs’ counsel and RPs’ insurance 

company are a litigation cost that is not OSLTF compensable. Accordingly, such costs 

were denied. 

Claimant Basis of Reconsideration

In their request for reconsideration32, with respect to denied costs related to estimating seabird 

mortality using the BBM, the RPs emphasized that the Trustees invited them to participate in the 

estimation of seabird mortality and that this assessment activity was a cooperative study under 

the Funding and Participation Agreement. The RPs stated that the location of the incident 

limited the assessment data available to the Trustees, which complicated the development of the 

BBM and necessitated numerous modeling assumptions. Consequently, the RPs asserted that 

extensive coordination and discussion between the RPs and Trustees were needed to complete 

the BBM. The RPs highlighted numerous discussions between the RPs and Trustees to establish 

the cooperative efforts that lasted several years’ time.33 The RPs asserted that the Trustees 

provided the RPs with their underlying BBM model to allow for the RP to conduct its own 

model and that all the work conducted by the RPs was of the type expected by the Trustees.

With respect to the 2010 Reference Beach Surveys, the RPs asserted that they had concerns 

regarding the validity of the data produced by the 2005 beach surveys. The RPs emphasized the 

Trustees were invited to participate in the study, commented on the draft proposal of the study, 

and agreed to provide carcasses for the RPs use in the 2010 study. The RPs emphasized that (1) 

the report from the 2010 Reference Beach Surveys was shared with the Trustees, (2) that the 

report was included in the Trustees’ Administrative Record for the NRDA, (3) the Trustees 

referenced the report and results in their Assessment plan, and (4) the NPFC confirmed in its 

adjudication of the Trustees request for additional assessment funding that the Trustees would 

consider the results of the 2010 surveys in their final assessment of bird injury. 

The RPs did not provide any additional information or argument to support the reconsideration 

of denied costs related to (1) communications with the Swedish Club, (2) Polaris subsistence and 

third party claims work, (3) the proposed 2009 overflight, and (4) source analysis of oiled 

feathers. 

NPFC Analysis and Reconsideration Determination

Upon review of the additional information provided by the RP, along with consideration of the 

overall Administrative Record, the NPFC affirms its original determination denying $532,396.89 

in costs related to the 2010 Reference Beach Study and Seabird Morality Estimates. With 

respect to denied costs related to estimating seabird mortality using the BBM, as established in 

the original determination, the general status of an assessment study as “cooperative” is, not in 

itself, sufficient evidence to prove that a specific RP activity was conducted at the direction of 

the Trustees, on the behalf of the Trustees, for costs necessary to support the Trustees NRDA. 

 32 RPs’ Request for Consideration, pages 29-32 33 See Exhibit 2 to RP’s November 2018 Claim at 02_000460 – 62; 02_000485; 02_000600; 02_000609; 

02_000611; 02_000723; 02_000745; 02_000756; 02_000782; 02_000823; 02_000849 – 50; 02_000895; 

02_000901; 02_0010 
Page 17 of 29

15 C.F.R §990.14(c) requires that Trustees provide a certain level of cooperation and 

coordination with the RPs, which, at a minimum includes “notice of Trustee determinations 

required under this part, and notice and opportunity to comment on documents or plans that 

significantly affect the nature and extent of the assessment.” Regulatory compliance should not 

be conflated with a direction to the RPs to conduct activities on the Trustees’ behalf. 

Furthermore, unlike the requirements placed on the Trustees, an RP elects to participate in the 

NRDA and, as discussed previously, this participation serves to protect its own legal and 

financial interests. 

Similarly, the placement of an assessment activity in the Funding and Participation Agreement 

(FPA) does not prove that a specific RP activity was conducted at the direction of the Trustees, 

on behalf of the Trustees, for costs necessary to support the Trustees’ NRDA. Largely, the FPA 

requires the Trustees to allow the RPs’ to participate in the Trustees’ NRDA in exchange for 

guaranteed funding from the RPs. The existence of an assessment activity in the FPA more 

convincingly supports quite the opposite of the RPs assertion – rather than proving that the 

Trustees’ requested the RPs’ participation, the FPA indicates that the RPs themselves wanted 

access to participate in a Trustee activity and were willing to provide funding to the Trustees in 

order to obtain that access. This interpretation of the FPA is clearly supported by 

correspondence during its origination, with the Trustees informing the RPs that “DOI, ADNR 

and ADF&G anticipate that they would need, collectively, approximately $120,000 in advance 

funding to enter into a cooperative agreement with the responsible parties” and that continued 

failure of the RPs to provide timely funding to the Trustees prior to the FPA was causing the 

Trustees to consider “the value of entering into a cooperative agreement at all.”34

Despite the above analysis documenting the requirements of the Trustees to engage the RPs in 

their estimation of seabird mortality, as opposed to requesting the RPs’ participation, the NPFC 

endeavored to interpret the RPs’ participation in the most favorable perspective possible.35 This 

generous interpretation of the RPs’ participation was even further extended in light of OPA’s 

prohibition against double recovery at 33 U.S.C. §2706(d)(3), which would reasonably compel 

the NPFC to question whether, given that the NPFC has agreed to reimburse the RPs for the 

costs of the Trustees personnel and contractors to conduct seabird mortality assessment efforts, 

why any of the RPs costs would be considered necessary to support the Trustees’ NRDA and not 

represent duplicative efforts and a double recovery of damages. However, consistent with a 

favorable interpretation of the RPs’ participation, the NPFC approved the reimbursement of 

$94,358.83 in costs incurred directly by the RPs to review, discuss, and comment on the 

Trustees’ BBM and estimation of bird morality. Notably, the costs approved by the NPFC span 

numerous years and cover the entire period of time36 that focused on the discussion and analysis 

of the Trustee produced BBM. 

The costs denied by the NPFC for the seabird morality estimate activity related to activities that 

were conducted, as described in the RPs’ claim, “to develop the RPs’ estimate of seabird 

mortality”.37 Based on the Administrative Record, these are costs that were clearly not incurred 

 34 Email from the Trustees to the RPs, dated November 15, 2006 35 “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.” 36 Notably, this period of time for reimbursement allowed by the NPFC includes almost all the communications and 

interactions cited by the RPs in their reconsideration request. 

37 Claim Section II.A,2.h
Page 18 of 29

at the direction of the Trustees, on the Trustees’ behalf, or necessary to support the Trustees’

NRDA. While the Trustees’ may have provided their model to allow for the RPs to conduct their 

own injury calculations, this does not evidence that the Trustees’ directed or requested the RPs 

efforts. As well, even if the Trustees anticipated that the RPs would need to conduct these sort of 

activities, the RPs themselves elected to participate and had their own separate interests in 

calculating their own mortality estimate which, unsurprisingly, was significantly lower than the 

Trustees’ estimates. 

With respect to the 2010 Reference Beach Surveys, the RPs did not provide any evidence to 

rebut the NPFC’s prior determination that the costs were clearly not incurred at the request of the 

Trustees, on the Trustees’ behalf, or necessary for the Trustees’ NRDA. The Administrative 

Record clearly established that the Trustees never endorsed that the RPs study would provide 

more useful data than the 2005 studies, either at the time it was conducted or at any point 

afterwards. While the survey may have been a subject of relevant interest to the RPs, the RPs 

interest has no basis on the NPFC’s determination of reasonable Trustee assessment costs. Even 

though parts of the Selendang NRDA were conducted cooperatively, the RPs did not, and 

cannot, obtain independent Trustee authority to conduct NRDA activities of their own selection. 

An RP may understandably choose to incur costs to conduct any number of activities related to 

an incident, however such efforts are conducted on behalf of its own legal and financial interests. 

For this reason, only such costs that were incurred at the direction of the Trustees, on behalf of 

the Trustees’ NRDA, and necessary to support the Trustees’ NRDA can be considered 

“reasonable Trustee assessment costs” that were incurred as representatives of the public as 

designated by, among other authorities, subpart G of the National Contingency Plan and 33 

U.S.C. §2706(b). 

The NPFC similarly rejects the RPs’ assertion that references to the 2010 surveys in the 

Administrative Record and the NPFC’s adjudication of the Trustees’ claim qualifies as 

retroactive approval of the study. First, the Trustees’ continued disassociation from the study 

directly contradicts any implied import from the study’s inclusion in the Administrative Record. 

Furthermore, the Administrative Record reflects that the RPs’ ensured that, according to the FPA 

and its amendment, that they be allowed to participate in adding their preferred documents to the 

Administrative Record to support their own interests, such as getting reimbursed from the NPFC. 

Finally, the NPFC’s reference to the study in the Trustees’ assessment determination in no way 

could be interpreted as Trustee authorization of the RPs’ study. Identically to an RP, the NPFC 

has no trustee authority to conduct or authorize an NRD assessment activity. As well, the NPFC 

would simply expect the Trustees to address any public comments on their plan in the 

Administrative Record, whether it be from a member of the public, an NGO, the RP, or anyone 

else. 

As stated previously, the RPs did not provide additional information or argument to dispute the 

NPFC’s earlier determination that costs related to communications with the Swedish Club, the 

NPFC were incurred on the RPs’ behalf rather than directly in support of the Trustees’ NRDA 

and, further, that costs for communications between RPs’ counsel and RPs’ insurance company 

are a litigation cost that is not OSLTF compensable. Furthermore, given that the RPs’ did not 

provide additional information to support the (1) Polaris subsistence and third party claims work, 

(2) the proposed 2009 overflight, and (3) source analysis of oiled feathers, such costs remain 

denied because, based on the Trustee documentation in the Administrative Record they were 

clearly not incurred at the request of the Trustees, on the Trustees’ behalf, or necessary for the 

Trustees’ NRDA. 
Page 19 of 29

Accordingly, the NPFC affirms its’ initial determination that $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. 

Lingering Oil Study

Summary of Claimed Activity Costs 

The RPs claimed $695,213.73 in costs to conduct a lingering oil study to support the assessment 

of injury to marine resources.38 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.39 

In response to the Trustees request, the RPs agreed to cooperatively participate in and fund the 

Trustees’ study. The Trustees’ produced a detailed study plan with input from the RPs 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 identified as Trustees activities.40 The RPs’ 

claimed damages included costs to assist in study design, participate in field work, conduct 

laboratory analysis of tissue samples, conduct independent analysis of study data, analyze the 

Trustees’ report, and develop an independent study report. 

Summary of Initial NPFC Adjudication 

In its initial adjudication41 of the RPs’ claim, the NPFC determined that: 

1. The overall Lingering Oil study was an appropriate assessment activity for the incident; 

2. 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 Lingering oil study; 

3. Based on the Trustee documentation in the Administrative Record, $567,640.23 of the 

RPs’ claimed costs were incurred at the request of, and on behalf of the Trustees, to 

conduct activities necessary to support the Lingering Oil study. Accordingly, such costs 

were reimbursable from the Fund in accordance with 33 C.F.R. §136.211(a) as 

reasonable Trustee past assessment costs; 

4. $122,942.30 of the RPs’ claimed costs were related to independent data analysis, 

generation of an independent report, and other activities conducted after finalization of 

the Trustees’ report. Accordingly, based on the Trustee documentation in the 

Administrative Record, such costs were denied because they were duplicative of Trustee 

activities, were not requested or directed by the Trustees, were not on the Trustees behalf, 

and were not necessary to support the Trustees’ NRDA; and 

5. $4,631.25 of the RPs’ claimed costs were related to communications between KYL and 

The Swedish Club, the vessel’s insurer. Communications between the RPs and its insurer 

were incurred on the RPs’ behalf rather than directly in support of the Trustees’ NRDA 

and, further, costs for communications between RPs’ counsel and RPs’ insurance 

 38 Claim Section II.A.2.c 39 Trustee Plan, pp. 3.11-3.12 40 M/V Selendang Ayu 2008 Study Plan for Assessment of Remaining Oil, 21 pages. 41 J05003-RP04 Claim Summary / Determination, pages 30-32
Page 20 of 29

company are a litigation cost that is not OSLTF compensable. Accordingly, such costs 

were denied. 

Claimant Basis for Reconsideration of Denied Costs 

In their request for reconsideration42, the RPs emphasized that (1) the Lingering Oil Study was a 

cooperative assessment activity and that, pursuant to the terms of the Funding and Participation 

Agreement signed by the Trustees and RPs, the RPs and Trustees would cooperatively develop 

assessment plans for cooperative studies, and (2) the Administrative Record reflects that the 

Trustees solicited comments from the RPs during the development of the study plan. Thus, costs 

related to the RPs efforts to evaluate the draft study plan were inappropriately denied. The RPs 

also contend that costs denied for analysis and comment on the Trustee report were 

inappropriately denied because (1) the NPFC erroneously determined that the Lingering Oil 

report was finalized in March 2010 prior to providing it to the RPs, (2) the Funding and 

Participation Agreement provides for exchange and discussion of data and results from cooperate 

studies, and (3) the Administrative Record reflects that the Trustees solicited comments from the 

RPs on their draft study report. The RPs did not provide any additional information to support 

the costs for communications with the Swedish Club. 

NPFC Analysis and Reconsideration Determination

Upon review of the additional information provided by the RP, along with consideration of the 

overall Administrative Record, the NPFC affirms its original determination denying $122,942.30 

in costs related to the Lingering Oil study. With respect to the Lingering Oil Study being 

considered a cooperative study, the general status of an assessment study as “cooperative” is, not 

in itself, sufficient evidence to prove that a specific RP activity was conducted at the direction of 

the Trustees, on the behalf of the Trustees, for costs necessary to support the Trustees NRDA. 

15 C.F.R §990.14(c) requires that Trustees provide a certain level of cooperation and 

coordination with the RPs, which, at a minimum includes “notice of Trustee determinations 

required under this part, and notice and opportunity to comment on documents or plans that 

significantly affect the nature and extent of the assessment.” Regulatory compliance should not 

be conflated with a direction to the RPs to conduct activities on the Trustees’ behalf. 

Furthermore, unlike the requirements placed on the Trustees, an RP elects to participate in the 

NRDA and, as discussed previously, this participation serves to protect its own legal and 

financial interests. 

Similarly, the placement of an assessment activity in the Funding and Participation Agreement 

(FPA) does not prove that a specific RP activity was conducted at the direction of the Trustees, 

on behalf of the Trustees, for costs necessary to support the Trustees’ NRDA. Largely, the FPA 

requires the Trustees to allow the RPs’ to participate in the Trustees’ NRDA in exchange for 

guaranteed funding from the RPs. The existence of an assessment activity in the FPA more 

convincingly supports quite the opposite of the RPs assertion – rather than proving that the 

Trustees’ requested the RPs’ participation, the FPA indicates that the RPs themselves wanted 

access to participate in a Trustee activity and were willing to provide funding to the Trustees in 

order to obtain that access. This interpretation of the FPA is clearly supported by 

correspondence during its origination, with the Trustees informing the RPs that “DOI, ADNR 

and ADF&G anticipate that they would need, collectively, approximately $120,000 in advance 

 42 RPs’ Request for Consideration, pages 25-29
Page 21 of 29

funding to enter into a cooperative agreement with the responsible parties” and that continued 

failure of the RPs to provide timely funding to the Trustees prior to the FPA was causing the 

Trustees to consider “the value of entering into a cooperative agreement at all.”43

Despite the above analysis documenting the requirements of the Trustees to allow the RPs 

participation in certain activities, rather than requesting the RPs’ participation, the NPFC 

endeavored to interpret the RPs’ participation in the most favorable perspective possible.44 This 

generous interpretation of the RPs’ participation was even further extended in light of OPA’s 

prohibition against double recovery at 33 U.S.C. §2706(d)(3), which would reasonably compel 

the NPFC to question whether, given that the NPFC has also agreed to reimburse the RPs for the 

costs of the Trustees personnel and contractors to design and conduct field work for the 

Lingering Oil study, why any of the RPs costs related to such efforts would be considered 

necessary to support the Trustees’ NRDA and not represent duplicative efforts and a double 

recovery of damages. However, consistent with a favorable interpretation of the RPs’ 

participation, the NPFC approved the reimbursement of $567,640.23 in costs incurred by the RP, 

including costs for the RPs to participate in the development of the study and conduct field work 

with the Trustees. 

With respect to costs incurred by the RPs following the Trustees completion of their laboratory 

analysis and draft report, the Administrative Record reflects that the RPs’ activities were clearly 

not incurred at the direction of the Trustees, on the Trustees’ behalf, or necessary to support the 

Trustees’ NRDA. As established in the agreed upon study plan45, NOAA’s Auke Bay 

Laboratory conducted analysis of the samples collected during the field work. Despite the 

Trustees’ completion of sample analysis in concert with the plan, the RPs conducted additional 

analyses of tissue samples and “performed independent analysis of the data generated by the 

study.”46 The RPs’ independent election to conduct this work is clearly captured in 

correspondence to the Trustees - “When do you think we will get the Lingering Oil Study 

complete chemistry data packages? As we have discussed, we would like to evaluate these data 

prior to the Trustees developing a complete report.”47 

Furthermore, as documented by the Trustees, the RPs’ independent interpretation of data and 

analyses culminated in the RPs’ producing their own technical report and using it as a basis to 

contradict the Trustees’ report.48 Based on all of the above, the RPs’ activities following the 

completion of the Trustees’ draft report were clearly duplicative of Trustee activities, were not 

requested or directed by the Trustees, were not incurred on the Trustees’ behalf, and were not 

necessary to support the Trustees’ NRDA. 

With respect to the $4,095 in Newfields Laboratory costs to comment on the Trustees’ draft 

study plan, the NPFC reiterates that NOAA’s Auke Bay Laboratory was the laboratory explicity 

selected to conduct analyses on the collected samples and the RPs provided no explanation or 

justification for these specific costs in their original claim. Furthermore, the NPFC agreed to 

 43 Email from the Trustees to the RPs, dated November 15, 2006 44 “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.” 45 M/V Selendang Ayu 2008 Study Plan for Assessment of Remaining Oil, 21 pages. 46 Claim Section II.A.2.c 47 Email from RPs to Trustees, dated December 31, 2008 48 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, Response to NPFC Item #8, 

Section I.A, page 1 
Page 22 of 29

reimburse the RPs’ for the Trustees’ incurred costs to develop the study plan and, despite its’ 

concerns about duplication of efforts, the NPFC also agreed to reimburse the RPs for both 

Polaris and Exponent to review and comment upon the study protocol on the RPs’ behalf. There 

is nothing in the Administrative Record that evidences the Trustees’ direction or need to engage 

an additional laboratory to comment on the draft study and, even with the wide latitude extended 

by the NPFC in its’ review of the RPs’ costs, there is a limit to the number of RP contractors that 

can be expected to be necessary to participate in the development of a Trustee plan and still be 

considered a reasonable Trustee assessment cost. Accordingly, given the explicit identification 

of another laboratory in the assessment study, the NPFC finds that the Newfields laboratory costs 

were duplicative, were not requested or directed by the Trustees, were not incurred on the 

Trustees’ behalf, and were not necessary to support the Trustees’ NRDA. 

As stated previously, the RPs did not provide additional information or argument to dispute the 

NPFC’s earlier determination that costs related to communications with the Swedish Club, the 

NPFC were incurred on the RPs’ behalf rather than directly in support of the Trustees’ NRDA 

and, further, that costs for communications between RPs’ counsel and RPs’ insurance company 

are a litigation cost that is not OSLTF compensable. 

Accordingly, the NPFC affirms its’ initial determination that $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. 

Auklet Habitat Manipulation – Vegetation Removal Pilot Study

Summary of Claimed Activity Costs 

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.49 In April 2009, the RPs proposed a 

study to assess whether the removal of vegetation from auklet breeding colonies on Gareloi 

Island50 would increase suitable nesting sites for those colonies.51 The study was conducted 

during the summers of 2009, 2010, and 201152 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 

policies53. 

Summary of Initial NPFC Adjudication 

In its’ initial adjudication of the RPs’ claim54, the NPFC determined that 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. 

Documentation reflects that the RPs identified, proposed, developed, and conducted this study on 

 49 Claim Section II.A.2.f 50 The island is part of the Alaska Maritime National Wildlife Refuge 51 Proposal from Responsible Party to evaluate habitat restoration at Gareloi Island, April 24, 2009. Selendang Ayu

NRDA Administrative Record, IV.C.3.a. 

52 Trustee Plan, pp. 4-7 to 4-8 53 Enclosure G of Trustee Additional Information Response for Claim J05003-OI03, Response to NPFC Item #8, 

Section 11.B, p. 6

54 J05003-RP04 Claim Summary / Determination, pages 37-40
Page 23 of 29

their own initiative, in large part because of concerns regarding the costs of the Trustees’ 

preferred restoration alternative from the beginning – rat eradication project. 

While the Trustees were generally open to considering vegetation removal as an alternative, they 

expressed skepticism from the beginning about the pilot project proposed by the RPs55, 

documented extensive concerns to the RPs about the vegetation project56, 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.”57 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.58

Correspondence established 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 alternative.59 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”.60 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.61 

In addition, 15 C.F.R. §990.54(c) provides that studies62 to evaluate the feasibility and likelihood 

of restoration alternatives should only be implemented when, in the Trustees’ judgment, the 

project is likely to provide information useful in evaluating restoration alternatives63 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 was 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 cost representing a significant proportion of the entire NRDA. 

Ultimately, consistent with the concerns expressed by the Trustees, the results from the study did 

not provide information useful to their evaluation of restoration alternatives, further supporting 

that the study was not necessary for the Trustees’ NRDA and did not meet the requirements of 

15 C.F.R. §990.54(c). 

Accordingly, claimed costs in the amount of $3,088,898.30 could not be considered reasonable 

Trustee assessment costs in accordance with 33 C.F.R. §136.211(a) and were therefore denied. 

Claimant Basis for Reconsideration of Denied Costs

 55 Email from DOI to RPs, dated March 18, 2009 56 Trustee Question & Concerns.8-12-09 57 Email from DOI to RPs, dated August 3, 2009 58 Email from Polaris to DOI, dated August 11, 2009 59 Email from DOI to RPs, dated June 5, 2009 60 Email from RPs to DOI, dated June 29, 2009 61 Email from DOI to RPs, dated March 11, 2010 62 Referred to as “pilot projects” 63 Specifically the evaluation criteria in 15 C.F.R. 990.54(a) 
Page 24 of 29

In their request for reconsideration64, the RPs emphasizes that the vegetation study was a 

cooperative effort with the Trustees, that the Trustees commented on plans and discussed results 

of the vegetation surveys, and that the Trustees are still considering habitat manipulation as a 

restoration alternative. 

The RPs then highlight specific disagreements with the NPFC’s determination including: 

1. Rat eradication had not been selected as the Trustees’ “preferred” restoration 

alternative in 2009 

2. The Trustees supported studying the feasibility of removing vegetation as a potential 

restoration alternative 

3. The RPs and Trustees discussed significant concerns regarding the viability of a rat 

eradication project 

4. There is no evidence that the Trustees believed the costs or length of project was 

unreasonable 

NPFC Analysis and Reconsideration Determination

Upon review of the additional information provided by the RP, along with consideration of the 

overall Administrative Record, the NPFC affirms its original determination denying 

$3,088,898.30 of RP incurred costs to conduct the vegetation study. The NPFC denies these 

costs because the RPs failed to prove that such costs were incurred at the direction of the 

Trustees, on the Trustees behalf, and necessary to support the Trustees’ NRDA. With respect to 

the study being considered a cooperative assessment, the general status of an assessment as 

“cooperative” is, not in itself, sufficient evidence to prove that a specific RP activity was 

conducted at the direction of the Trustees, on the behalf of the Trustees, for costs necessary to 

support the Trustees’ NRDA. 

Documentation in the Administrative Record reflects that the RPs identified, proposed, 

developed, and conducted this study on their own initiative and had even planned on conducting 

the study without the Trustees’ “cooperation”. While the Administrative Record reflects that the 

Trustees commented on study plans and results, nothing provided by the RPs evidences that the 

vegetation study was an assessment activity that the Trustees directed the RPs to conduct or 

considered a study that the Trustees thought was necessary to the NRDA. If the RPs had not 

ardently developed and funded the entire project and, substantially, conducted all the associated 

work, there is no indication that the Trustees would have given any consideration to the study as 

a cooperative activity. As documented in the Administrative Record, the Trustees initial 

agreement to even consider the study “cooperative” was based on the RPs agreement to also fund 

the rat eradication project. 

While this study may have been a subject of particular interest to the RPs, the RPs interest has no 

basis on the NPFC’s determination of reasonable Trustee assessment costs. Even though parts of 

the Selendang NRDA were conducted cooperatively, the RPs did not, and cannot, obtain 

independent Trustee authority to conduct NRDA activities of their own selection. An RP may 

understandably choose to incur costs to conduct any number of activities related to an incident, 

however such efforts are conducted on behalf of its own legal and financial interests. These 

divergent interests were fully acknowledged by the RPs from the beginning of the NRDA, 

admitting that the Trustees and RPs have different “constituencies” whom they represent in the 

 64 RPs’ Request for Consideration, pages 6-29
Page 25 of 29

NRDA.65 This divergence of interest is clearly manifested here, where the RPs clearly expressed 

concerns about the cost of a rat eradication project66. For this reason, only such costs that were 

incurred at the direction of the Trustees, on behalf of the Trustees’ NRDA, and necessary to 

support the Trustees’ NRDA can be considered “reasonable Trustee assessment costs” that were 

incurred as representatives of the public as designated by, among other authorities, subpart G of 

the National Contingency Plan and 33 U.S.C. §2706(b). 

Furthermore, the RPs did not provide any documentation to support that the project met the 

requirements of 15 C.F.R. §990.54(c) – especially that the project is likely to provide information 

useful in evaluating restoration alternatives. As described in the original determination, while 

the Trustees were open to considering vegetation removal as an alternative, they expressed 

skepticism from the beginning about the study67, documented extensive concerns to the RPs 

about the vegetation project68, 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.”69 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.70 The Trustees 

continued to doubt the value of the study through the end of the study.71 Furthermore, once the 

RPs had been granted their limit and began reducing their participation in the NRDA, the 

Trustees immediately declined to continue the study any further.72 Given that the Trustees 

ultimately concluded at the end of the vegetation study that, in fact, the study did not produce 

useful information for determination restoration, the Trustees’ long held concerns about the RPs 

vegetation study are both persuasive and confirming. 

With respect to the reasonability of cost and length of the project pursuant to 15 C.F.R. 

§990.54(c), the RPs were entirely funding the field work and conducting substantially all of the 

analyses. Accordingly, there would have been no reason or basis for the Trustees to comment on 

the cost and length of the project. The Administrative Record doesn’t reflect that Trustees would 

have even had knowledge of what the costs of the project were. However, given the Trustees 

overall skepticism regarding whether the study would provide useful information suggests that 

they would have considered the length and cost of the study to be unreasonable. As well, the 

Trustees’ immediate shut down of further field activities once the RPs ceased participation and 

funding provide further indication that the Trustees did not view the study as a reasonable 

assessment cost. 

 65 Email from Polaris to KYL, dated February 7, 2005 66 The NPFC acknowledges that additional concerns regarding rat eradication were acknowledged and discussed 

with the RPs and Trustees. However, the Trustees still insisted that it was a favorable alternative that they sought to 

explore and pursue. Furthermore, concerns with the viability of rat eradication has no impact or basis with respect 

to whether the RPs election to conduct the vegetation study should be considered a reasonable Trustee assessment 

cost. 

67 Email from DOI to RPs, dated March 18, 2009 68 Trustee Question & Concerns.8-12-09 69 Email from DOI to RPs, dated August 3, 2009 70 Email from Polaris to DOI, dated August 11, 2009 71 Email from Trustees to RPs, dated April 16, 2011 72 Email from RPs to Trustees, dated March 19, 2012 
Page 26 of 29

Accordingly, the NPFC affirms its’ initial determination that the $3,088,898.30 in RPs’ claimed 

costs cannot be considered reasonable Trustee past assessment in accordance with 33 C.F.R. 

§136.211(a) costs and are therefore denied. 

Rat Eradication Feasibility Study

Summary of Claimed Activity Costs 

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.

73 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 Island74. The Trustees requested funding from the 

RPs to cooperatively conduct the feasibility study together. While ultimately refusing to fund 

the Trustees’ study, the RPs’ claimed damages included costs to analyze and review other 

eradication projects, review and analyze literature of rat predation at the proposed study site, 

contractor coordination, and restoration credit research. 

Summary of Initial NPFC Adjudication 

In its’ initial adjudication of the RPs’ claim75, the NPFC determined that Trustee documentation 

provides clear evidence that the activities conducted by the RPs were not conducted at the 

direction of the Trustees, on their behalf, and were not necessary for the Trustees’ NRDA. The 

Trustees had already begun focusing on rat eradication as a restoration alternative and engaged a 

contractor who developed a feasibility study plan to further study the restoration alternative. The 

RPs engaged their own contractors to provide additional review of the proposal and then 

independently decided to coordinate with and submit the proposal to International Tank Owners 

Pollution Federation Limited (“ITOPF”) to conduct ever further review of the proposal. 

Furthermore, despite a rat eradication project being the favored restoration alternative for the 

Trustees, the RPs ultimately declined to fund a cooperative feasibility study. The NPFC denied 

certain costs76 on a secondary basis because they were related to communications between KYL 

and The Swedish Club, the vessel’s insurer. Communications between the RPs and its insurer 

were incurred on the RPs’ behalf rather than directly in support of the Trustees’ NRDA and, 

further, costs for communications between RPs’ counsel and RPs’ insurance company are a 

litigation cost that is not OSLTF compensable – accordingly such costs were denied. 

Claimant Basis for Reconsideration of Denied Costs 

In their request for reconsideration77, the RPs emphasized that the development of restoration 

alternatives was a cooperative project as established by agreement78 between the RPs and 

Trustees. Further, the RPs highlighted numerous correspondence with the RPs that document the 

Trustees’ efforts to cooperatively conduct the study with the RPs. The RPs did not provide any 

additional information to support the costs for communications with the Swedish Club. 

NPFC Analysis and Reconsideration Determination

 73 Claim, Section II.A.2.e, pp. 44-46 74 Trustee Plan, pp. 4-5 to 4-7 75 J05003-RP04 Claim Summary / Determination, pages 34-35 76 $2,430 77 RPs’ Request for Consideration, page 24-25 78See Exhibit 5 to RP’s November 2018 Claim at 05_000058 - 61
Page 27 of 29

Upon review of the additional information provided by the RP, along with consideration of the 

overall Administrative Record, the NPFC affirms its original determination denying $76,630 of 

RP incurred costs to conduct preliminary analysis of a proposed feasibility project to study rat 

eradication. With respect to developing restoration alternatives being considered a cooperative 

assessment, the general status of an assessment as “cooperative” is, not in itself, sufficient 

evidence to prove that a specific RP activity was conducted at the direction of the Trustees, on 

the behalf of the Trustees, for costs necessary to support the Trustees NRDA. 15 C.F.R 

§990.14(c) requires that Trustees provide a certain level of cooperation and coordination with the 

RPs, which, at a minimum includes “notice of Trustee determinations required under this part, 

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

and extent of the assessment.” Regulatory compliance should not be conflated with a direction 

to the RPs to conduct activities on the Trustees’ behalf. Furthermore, unlike the requirements 

placed on the Trustees, an RP elects to participate in the NRDA and, as discussed previously, 

this participation serves to protect its own legal and financial interests. 

In this case, even the “agreement” cited above by the RPs’ to establish that development of 

restoration alternatives was a cooperative activity is, in fact, an unsigned draft scope of work. 

Furthermore, while the Administrative Record does reflect numerous Trustee correspondence 

with the RPs regarding the feasibility study, the activities of the RPs with respect to rat 

eradication cannot be interpreted as being conducted at the Trustees’ direction, on the Trustees’ 

behalf, for activities necessary to the Trustees’ NRDA and, alternately, were duplicative of 

Trustee efforts. The Trustees had already developed a feasibility study and engaged the RPs to 

acquire funding to conduct the feasibility study on their preferred time schedule.79 Despite the 

Trustees’ persistent interest in rat eradication, development of a feasibility study, and repeated 

efforts to engage the RPs in funding the study, the RPs never funded the Trustees’ study. The 

Administrative Record does not reflect that the Trustees invited additional analysis from the RPs 

on the feasibility study. The study was not in draft form and the Trustees intended to implement 

it immediately as is. The RPs however engaged multiple contractors in additional analysis and, 

without the Trustees knowledge or permission, engaged ITOPF to provide additional review of 

the proposal. 

As stated previously, the RPs did not provide additional information or argument to dispute the 

NPFC’s earlier determination that costs related to communications with the Swedish Club, the 

NPFC were incurred on the RPs’ behalf rather than directly in support of the Trustees’ NRDA 

and, further, that costs in the amount of $2,430 for communications between RPs’ counsel and 

RPs’ insurance company are a litigation cost that is not OSLTF compensable. 

Accordingly, the NPFC affirms its’ initial determination that the $76,630 in RP’s claimed costs 

cannot be considered reasonable Trustee past assessment in accordance with 33 C.F.R. 

§136.211(a) costs and are therefore denied. 

V. 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 denies payment of all 

 79 Email from Trustees to RPs on March 18, 2019 - “we will need to know whether the RP will support the proposed 

feasibility assessment for rat eradication by April 6 to help us take advantage of the 2009 field season.”
Page 28 of 29

reconsidered costs. Further, through this determination, the NPFC offers payment of

$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 as approved in the original determination on April 8, 2022. 

This written decision is final agency action.